English Legal System: Legal Skills - Case Study Example

Legal Skills R. v Shivpuri is a significant case in English Legal System. In this case, the House of Lords overruled within twelve months its own earlier decision in Anderton v Ryan. Anderton v Ryan on the Criminal Attempts Act 1981, D was held to be not guilty of attempting to commit a drugs offence. Professor Williams Glanville Williams has influenced the House of Lords with his works. He argued that those who lack the requisite mens rea but cause actual 'social damage' should not be punished. Order#: 150351 Topic: LEGAL SKILLS Deadline: 2007-01-23 16:22 Style: APA Language Style: English UK Answer: 1) The fact of R. v Shivpuri 1 was that customs officials arrested the appellant in possession of a suitcase. He admitted that he knew that it contained prohibited drugs either heroin or cannabis. Analysis showed that the material in the suitcase was not a prohibited drug but vegetable matter akin snuff. He appealed on the ground that because the substance was not a prohibited drug he had not done an act which was not more then merely preparatory 2 to the commission of the offence as required by the Criminal Attempts Act 1981. The Court of Appeal dismissed his appeal. The appellant, on a visit to India, was approached by a man named Desai, who offered to pay him 1000 if, on his return to England, he would receive a suitcase which a courier would deliver to him containing packages of drugs which the appellant was then to distribute according to instructions he would receive. The suitcase was duly delivered to him in Cambridge. Acting on instructions, the appellant went to Southall station to deliver a package of drugs to a third party 3. Outside the station, he and the man he had met by appointment were arrested. A package containing a powdered substance was found in the appellant's shoulder bag. He produced to customs officers the suitcase from which the lining had been ripped out 4 and the remaining packages of the same powdered substance. In answer to questions by customs officers and in a long written statement the appellant made what amounted 1) (1986) 2 All ER 334, House of Lords; 2) Subjective test, 3) On 30 November 1982, 4) At the appellant's flat in Cambridge, to a full confession of having played his part, as described, as recipient and distributor of illegally imported drugs. The appellant believed the drugs to be either heroin or cannabis. In due course, the powdered substance in the several packages was scientifically analysed and found not to be a controlled drug but snuff or some similar harmless vegetable matter. The applicant was convicted under the Criminal Attempts Act 1981 s 1(1) of attempting to commit the offence of being of Knowingly concerned the dealing with and harbouring prohibited drugs s 170 (1) (b) of the Customs and Excise Management Act 1979. Section 1(1) of the Criminal Attempt Act 1981 provides that a person is guilty of attempting to commit an offence if, with intent to commit the offence, he does an act which is more than merely preparatory 5 to the commission of the offence. The prosecution must prove that the defendants did what they did knowingly and it must be proved that they knew the goods were prohibited goods and had been imported into the United Kingdom. There is evidence to consider in this case that Mr. Shivpuri particularly knew the nature of the substance. The House of Lords, looking at the case law and legislative history, concluded that Parliament intended that the only means rea necessary for an offence under Criminal Attempts Act 1981 s 1(1) and the Customs and Excise Management Act 1979, should be knowledge that the goods were subject to a prohibition on importation. If there are four offences, the means rea is the same for each. In this case, D would be guilty of the life offence, although the offence he believed he has committing was punishable with only 5 years. He would be attempt to commit the five years 5) Mens rea of the offence, offence, because that is the offence he intents to commit. These results reserved if he was in a fact importing pemoline, believing it to be pethidine. He knew or believed the substance was heroin or, in his own expression, dried hash or cannabis 6 or some other prohibited drug. The Criminal Attempts Act of 1981 provides by section 1: (1) If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence. (2) A person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible. (3) In any case where - (a) apart from this subsection a person's intention would not be regarded as having amounted to an intent to commit an offence; (b) If the facts of the case had been, as he believed them to be, his intention would be so regarded, then, for the purposes of subsection (1) above, he shall be regarded as having had intent to commit that offence. The legislative history provides a clear resolution of these problems. Under section 304 of the Customs and Excise Act 1952 the offences, which are now the subject of section 170 of the Act 6) Prohibited drug, of 1979 were uniformly punishable by a maximum of two years' imprisonment. In the case of an offence in connection with a prohibition or restriction, a penalty is expressly provided for that offence by the enactment or other instrument imposing the prohibition or restriction. No special penalty was imposed by any statute for offences under section 304 of the Act of 1952 in connection with the importation of prohibited drugs until the Dangerous Drugs Act 1967. Section 7(1) of the Act of 1967 increased from two to ten years the maximum sentence of imprisonment which could be imposed for offences under section 304 of the Act of 1952 in connection with the importation of certain drugs, including cannabis, prohibited by the Dangerous Drugs Act 1965. In this case, the House of Lords overruled within twelve months its own earlier decision in Anderton v Ryan 7. Anderton v Ryan on the Criminal Attempts Act 1981, D was held to be guilty of attempting to commit a drugs offence. Customs caught him with a suitcase, which he thought contained prohibited drugs whereas it contained dried cabbage, and snuff. Professor Glanville Williams, a highly respected authority, using some extreme language about the House of Lords' decision in criminal matter Anderton v Ryan. It was held by the House of Lords to be impossible to attempt to handle it. Writing about the decision, Professor Glanville Williams said: ' . . . The tale I have to tell is unflattering of the higher judiciary. It is an account of how the judges invented a rule based upon conceptual misunderstanding; of their 7) (1985), determination to use the English language so strangely that they spoke what by normal criteria would be termed untruths; of their invincible ignorance of the mess they had made of the law . . .' 2) In order to answer this question it is necessary to the subjective approach. The abolition of the objective approach 8 is justified on utilitarian grounds. The objective approach has a deleterious impact on the legitimate 'entrapment' operations of undercover police officers. However, the criticism of the subjective approach is that it produces 'unfair' or 'unjust' results. The subjective approach does not adequately explain why defendants should be punished when they have not come close to the commission of a substantive offence or to the infliction of 'social damage'. It is only when an agreement has a deleterious impact that 'social damage' is inflicted. In contrast, subjectivists such as Professor Williams argue that those who lack the requisite mens rea but cause actual 'social damage' should not be punished. As Glanville Williams argues, in certain circumstances the offence of receiving stolen property, for example is not a serious offence. He criticises its application to the law of attempts and rejects its 'motivation theory'. The 'motivation theory' accepts that parties to a conspiracy can be judged objectively if their mistaken belief is incidental and not central to their agreement. For example, if a person desire is to obtain specific goods, parties to an agreement should not be punished if they mistakenly believe that the property is stolen. If the desire is to obtain stolen goods, the legal status of the property is central to their conspiracy and the parties should be punished. When the crime is impossible to commit, 8) Anderton v Ryan followed this approach, the motivation of the conspirators determines liability. Professor Williams, on the other hand, cautious that the equal treatment of attempts and consummated crimes might result in the law losing public support. He argues that, Crudely retributive perspective adopted by much of the public, according to which punishment should relate to the harm done, the equal treatment of attempts and consummated crimes might appear harsh. To evaluate argument which Professor Williams, it is essential to discuss previous circumstance of attempt related cases and subsequent development. The objective approach came to prominence with the House of Lords decision of Haughton v Smith 9. Their Lordships held that factual impossibility is a defence to a charge of criminal attempt. In DPP v Nock 10, the House of Lords decided that the objective approach should also be applied to the law of conspiracy. The House of Lords in Nock held that the applicability of the defence of impossibility is determined by the terms of the agreement. The Court of Appeal in Reg. v. Hussain 11 in relation to offences under section 304 of the Customs and Excise Act 1952 connected with the importation of prohibited goods. In that case, the appellant had been convicted of being knowingly concerned in the fraudulent evasion of the prohibition of the importation of cannabis. It was submitted on his behalf that proof of knowledge on his part that the goods being smuggled were cannabis was part of the obligation of 9) [1975] AC 476, 10) [1978] AC 979, 11) [1969] 2 QB 567, the prosecution, and since the chairman had directed that it was not necessary for the accused to know precisely the nature of the goods, there was misdirection. In Shivpuri was followed by the Full Court of the Supreme Court of Victoria in Britten v Alpogut 12. In Britten v Alpogut the court held that the decision of Haughton v Smith did not state the common law of Victoria. In Haughton v Smith, Lord Reid stated that the application of the subjective approach to the law of attempts would reverse the role of the actus reus and mens rea. A broad definition of 'legal impossibility' based on the absence of an element of the substantive offence is consistent with the House of Lords decision in Haughton v Smith. A broad definition of 'legal impossibility' based on the absence of an element of the substantive offence is consistent with the House of Lords decision in Haughton v Smith. G Williams said against the broad approach. For subsequent development, the concept of "objective innocence" is incapable of sensible application in relation to the law of criminal attempts. The reason for this is that any attempt to commit an offence which involves "an act which is more than merely preparatory to the commission of the offence" but for any reason fails, so that in the event no offence is committed, must ex hypothesi, from the point of view of the criminal law, be "objectively innocent." The endorsement of the objective approach is based on the desire to avoid prosecutions in situations when common sense would regard conduct as trivial. The objective approach has been criticised because the distinction between factual impossibility and impossibility caused by inadequacy of means is difficult to maintain. Smart J does not answer the criticisms of the objective approach 12) [1987] VR 929, made by judges such as Lord Bridges in Shivpuri and Murphy J in Britten v Alpogut. His Honour fails to explain why a chance event, that renders the conspirators' objective impossible, should provide the accused with a defence. Two people on their return to Australia from abroad agree to hide a number of gold necklaces in their luggage. They mistakenly believed that the necklaces had been made in Thailand and were thus dutiable. In fact, the necklaces were made in Australia and were not dutiable. On the subjective approach, the couple could be convicted of conspiring to smuggle. In contrast, if the couple had been correct and the necklaces had been made in Thailand but unknown to them, Thai Gold products had just been removed from the duty list; they could not be convicted of the crime of conspiracy. In both situations, the couple intended to do an act that they believed to be a crime, and in both cases, they did not come close to the commission of a substantive offence. It is difficult to identify any ethical distinction between the two scenarios. It is impossible to differentiate between the two cases on the basis that the subjective approach prevents criminal activity by punishing those with the propensity to commit actual offences. The subjective approach does not adequately explain why defendants should be punished. Professor Williams argue that those who lack the requisite mens rea but cause actual 'social damage' should not be punished. In this sense, I agree with his statement. 3) If consider few previous case law and subsequent decision. The previous test was objective innocence. In Reg. v. Collins 13, of the man who takes away his own umbrella from a stand, 13) (1864) 9 Cox C.C. 497, believing it not to be his own and with intent to steal it. Here the case of the man who has consensual intercourse with a girl over 16 believing her to be under that age; the case of the art dealer who sells a picture which he represents to be and which is in fact a genuine Picasso, but which the dealer mistakenly believes to be a fake. The common feature of all these cases, including that under appeal, is that the mind alone is guilty, the act is innocent. Williams's arguments influence the House of Lords' decision in R. v. Shivpuri. The distinction between acts, which are "objectively innocent" and those which are not is an essential element in the reasoning in Anderton v. Ryan and the decision, unless it can be supported on some other ground, must stand or fall by the validity of this distinction. The court considers that the concept of "objective innocence" is incapable of sensible application in relation to the law of criminal attempts. Professor Williams argue that those who lack the requisite mens rea but cause actual 'social damage' should not be punished. Since the decision of R v Shivpuri, however, courts have rejected the objective approach to the law of attempt. Lord Bridge said, ''I cannot conclude this opinion without disclosing that I have had the advantage, since the conclusion of the argument in this appeal, of reading an article by Professor Glanville Williams entitled "The Lords and Impossible Attempts, or Quis Custodiet Ipsos Custodes" [1986] C.L.J. 33. The language in which he criticises the decision in Anderton v. Ryan is not conspicuous for its moderation, but it would be foolish, on that account, not to recognise the force of the criticism and churlish not to acknowledge the assistance I have derived from it''. In the decision of R v Barbouttis 14 the Court of Criminal Appeal was asked to decide the relevance of impossibility to a charge of criminal conspiracy. The defence of impossibility as it applies to the 'auxiliary' crimes of conspiracy, attempts, and incitement has long been debated. Judges and commentators have developed two principal approaches to the defence of impossibility. The subjective approach states that it is criminal for a person to do an act or enter an agreement with the belief that a substantive offence will be committed. The fact that the substantive offence may be impossible to commit is irrelevant. Impossibility is a defence only if (in the language of conspiracy) the agreement is to do that which is not a crime. The HLs stands at the summit of English court structure. Decisions of the HLs on all courts in the country except the House itself. Until 1966 the HLs was bound by its own decisions. This practice was established in mid nineteenth century and reaffirmed in 1898 in London Tramways Co. Ltd v London County Council 15. The reason was that it was felt that decisions of the highest appeal court should be final in the public interest so that there would be certainty in the law and end to litigation. There was increasing judicial criticism of the practice from the 1930s. In particular, it was said that the rule did not produce the desired certainty in the law and it had become too rigid [Lord Wright, 'Precedent', 16 Lord Denning, 'From Precedent to Precedent'. Nevertheless, the practice was not changed until 1966. The practice eventually changed in July 1966 when Lord Gardiner, 14) (1995) 37 NSWLR 265, 15) (1898) HL, 16) (1944), the Lord Chancellor, made Practice Statement 17 on behalf Himself and his fellow Law Lords. However, the practice was not changed until 1966. The practice eventually changed in July 1966 when Lord Gardiner, the Lord Chancellor, made Practice Statement on behalf Himself and his fellow Law Lords. Lord Gardiner's statement was accompanied by a press release, which emphasised the importance of, and the reasons for the change in practice. The change would bring the House into line with the practice of superior courts in many other countries. In the USA, for instance, the US Supreme Court and state Supreme courts are not bound by their own previous decisions. Through the Statement got the authority to depart from its earlier decision when it appears right to do so. R v. Shivpuri was the first criminal case where the Practice Statement (Judicial Precedent) has been applied to a decision as recent as that in Anderton v. Ryan. The House of Lords' was right to adopt the arguments and points that he made. The House of Lords in R v Shivpuri held that s 1 of the Criminal Attempts Act 1981 (UK) adopts the "subjective" approach. Therefore, it is a significant case. In accordance with the objective approach there is no liability if two people agree to receive stolen property but unknown to the 'conspirators', just prior to their agreement, the stolen goods are detected by police and returned to lawful custody. 17) [1966] 3 ALL ER 77. References: 1) Smith & Hogan, Criminal Law, Cases & Materials, 8th edition, Butterworths Lexis Nexistm UK, 2) Smith & Hogan, Criminal Law, 11th edition (2005), Oxford University Press, 3) , 4) , 5) Michael J. Allen, Criminal Law, 7th edition,(2003), Oxford University Press, Read More