The Case of Revision R v G and Another - Essay Example

R v G and Another Summary of the case of Regina v G and Another [2004 AC 1034 The facts of this case were as follows: Two boys, aged 11 and 12, set fire to some newspapers in a backyard of a shop and then proceeded to throw the burning papers under a plastic rubbish bin. As a result, the bin caught fire which spread to the shop, destroying goods that were worth about 1M pounds. The boys were charged with arson, contrary to Sections 1 and 3 of the Criminal Damage Act of 1971 for reckless and criminal negligence. The trial Court applied the provisions that had been laid out in the case of R v Caldwell1 on the grounds of objective recklessness and found the boys guilty of arson2 as did the Court of Appeal3. However the House of Lords overruled, on the grounds that an element of mens rea was a requirement in all cases involving serious offenses. The boys were therefore not found guilty of arson, or the crime of causing damage by fire3. The point of law that was involved in this case was the issue of objective recklessness in determining liability for a serious offense. The case of Caldwell qualified Section 1 of the Criminal Damage Act of 1971, by holding that a person may be deemed to have acted recklessly in two instances (a) when he gives no thought to the risks attached to his act and (b) when he realizes the risk but proceeds with it anyway. The former was classified as objective recklessness and the latter as subjective recklessness and this had to be assessed by reference to the reasonable man. The case of Cunningham4 established conclusively that subjective recklessness involving offenses committed “intentionally and recklessly” will make the accused liable. But Caldwell imputed liability for objective recklessness as well, although Lord Edmund Davies noted a dissenting opinion on objective recklessness of the defendant as follows: “…a jury could not on those words alone, properly convict him of recklessness simply because they considered that the risk ought to have crossed his mind…”5 The House of Lords decision however overruled on the grounds that foresight or the ability to make an assessment of the consequences was deemed to be an essential part of recklessness as laid out under Section 1 of the Criminal Damage Act. The basis upon which the lower Court’s decision was overruled was that when a judgment was made on the liability for objective recklessness without making any allowance for the youth of the defendants or for whether they had the mental capacity to understand the consequences of their actions, it is bound to be erroneous. The House of Lords held that since the boys did not maliciously and deliberately set out to cause damage to the property, neither did they foresee the risk of the damages that could occur through the spread of the fire, they could not be deemed to be guilty of arson. Conviction for a crime should prove not merely an act of omission leading to a crime but also a culpable state of mind, in accordance with the principle of mens rea . Therefore a defendant who genuinely did not perceive the risk cannot be exposed to serious punishment. The judgment of Lord Bingham: In his judgment Lord Bingham refers to the following: (a) The meaning of “malice” in the context of arson as laid out by Lord Professor Courtney Stanhope Kenny in the first edition of The Outlines of Criminal Law at pages 163-165.(page 186 in the 16th edition, Oxford University Press) (b) The comment of Professor Brain Hogan in 1969 on the Working Paper no: 23 of the Law Commission, on the replacement of the word “maliciously” with “wilful or reckless.” This appeared in the Criminal Law Review 283. (c) The report on Offences of Damage to Property of the Law Review Commission published in July 1970 (the Law Com No: 29) with its Working Paper no: 31 titled “General Principles: The mental element in crime” that takes into account mens rea (d) Definition of “reckless” as laid out by Professor Glanville Williams in the “Textbook of Criminal law”, published in 1978 and at page 79 and “Recklessness Redefined" (1981) 40 CLJ 252 (e) The observations of Professor John Smith ([1981] Crim LR 392 at 393-396 (f) The distinction between establishment of intent through foresight, vis a vis recklessness as clarified by Archbold, “Pleading, Evidence and Practice” in the 40th edition, published in 1979, at page 958, para 1443c. Also the response to the case of Caldwell 41st edition of Archbold (1982) at paragraph 17-25, pages 1009-1010. The arguments of the academic authors: Kenny offers a meaning of the word “maliciously” in specific reference to arson. He states that when a house is burnt by sheer negligence due to omission or even during the commission of an unlawful act, it cannot be considered as arson. If some chattel is burnt within a house or building, and such burning is likely to cause a fire, and this causes the fire to spread elsewhere to an arsonable building, it will still not be considered a malicious act and will not be deemed to be arson, but rather an act of negligence. In order to establish the malice that constitutes arson, there must be a deliberate intent to cause damage to the building by fire and the act should have been carried out with a deliberate intention to cause damage it the property. Kenny cited the cases of R v Child6, R v Faulkner7 and R v Pembliton8, wherein it was held that in order to constitute an offence under the malicious injuries to property Act under Section 51, the wilful and deliberate intent to cause such damage must be established. None of these cases successfully established this. But in the case of Cunningham, such deliberate intent was established. Therefore, Kenny makes a clear distinction between damage caused by negligence and damage caused by deliberate intent. Kenny’s argument is cogent and clear. He clearly establishes the importance of intention or mens rea in attributing liability for criminal damage to a property under the category of malicious arson. I agree with this argument that negligence can sometimes be the cause of accidents and therefore criminal intent cannot be imputed in such cases, especially if the accused is not of a state of mind where he/she can comprehend the risks involved. However I am not fully in agreement with professor Kenny that damages caused during the commission of a criminal act should also not be deemed to be arson. Since the original intent in committing a burglary or trespass is unlawful, any damages caused as a result of that unlawful act, whether intentional or unintentional, ought to be punishable and since causing fires is deemed to be arson, there is no reason why a person setting out to commit an unlawful act should not be held liable and punished for the attendant damages that he causes. I am more in agreement with the principle laid out in the R v Mowatt case9, where an unlawful criminal intent, whether malicious or not, would be punishable when deemed unreasonable by the standards of the common reasonable man. Therefore, in the case of lighting chattel within a house while in the process of burglary, any reasonable person could be expected to anticipate that there may be a fire and therefore negligence in this aspect should deem the person to be liable, whether the intent to malice is established or not. Professor Brain Hogan referred to the Working Paper of the Law reform Commission and stated that the implications behind the concept of “maliciously” in the old code would appear as wilful or reckless according to the new code10 and carried this further by stating that liability that would be imputed under the wilful and reckless category would be extended to property damage as well. He discussed the codification of the law to include the mental element, which had been undertaken because younger people were more likely to cause malicious damage resulting out of arson. The report of the Law Reform Commission is significant because it attempted to codify the mental element inherent in crimes of damage to property. The need for reform was felt because the term “maliciously” was subject to varying interpretation and implied some ill will on the part of the defendant towards the person whose property was damaged by arson. The Report on Offences of damage to property established11 the need for culpability in establishing liability for a crime. This culpability could be demonstrated through intention, knowledge or deliberate recklessness, which were the traditional modes use din regulatory offenses. The law Commission deemed to necessary to extend the same definitions in the field of criminal damage as well, in order to avoid the impression created by Kenny that there was a different mental element implied in the case of arson as compared to the traditional mens rea in other crimes. Therefore the subsequent Working Paper No: 31 set out a new definition for the word “reckless”.12 at page 48. This definition of the word is related to the establishment of the mental state of the defendant while committing of the act. A reckless act is deemed to be such if (a) it is taken inspite of the knowledge that damages may result and (b) the doing of the act may be deemed to be unreasonable when compared with its inherent risks. In substance, it may be sent that the meaning of reckless as laid out in this Working paper is similar to that proposed by Kenny because it imputes an intent and knowledge to commit the said damage rather than unintentionally causing the damage. The mens rea or the state of the mind of the offender once again assumes importance. This is slightly different from Kenny in the sense that the original deliberate intent may not be to cause damage to the property by arson, however when there is a knowledge of the risk that is involved and the act is committed in spite of the knowledge of that risk, there is an element of responsibility that becomes associated with it, for which an offender must bear the liability. This has led to the consequent definition of subjective negligence, which is directly connected to the mental state of the offender and for which liability exists, as evidenced in the case of Herrington v British Railways Board.13 In my view, this definition of wilful recklessness appears to be a more reasonable and acceptable proposition. While the original intent of an act of arson may not be to cause damage, nevertheless when an act that could potentially cause damage is undertaken in spite of the knowledge of the risk and when such a risk would not have been taken by an average reasonable person, then there is an element of liability that becomes attached to the act. In particular, since most of such damages are cause by individuals who are younger than age 18, this provision also allows for each case to be assessed on its merits and where a deliberate disregard of the risks can be shown, then liability for such irresponsibility and negligence can also be imputed. Moreover, this definition does not allow any person with an unlawful intent to do mischief to escape on the grounds that there was no deliberate intent to cause the specific incident of arson. However, at the same time, since the intent must be established, it also provides some room for relief for accidental acts of negligence that cause arson for which the punitive measures need to be different from those where deliberate intent exists. Professor Glanville Williams offers a definition for the word “reckless” which was intended to address the ambiguity that was created through its definition as laid out in cases such as R v Briggs14. In this case, a person was deemed to be reckless if he realized the risk that was inherent within an act, and was aware of such dangers in his mind, yet in spite of knowing the risks involved, he closed his mind to the risk and proceeded to continue in the performance of the act. The inherent contradiction in this definition of reckless was laid by Professor Glanville, because he pointed out that the very act of a person closing his mind to the risks inherent in an act is an implication that he is aware of the risk and therefore there is culpability through the knowledge that exists, therefore no further qualification is necessary. In effect, this indicates, that where an awareness of the risk exists, that in itself is an indication of the knowledge of that risk and therefore a subsequent act that ignores that risk would of necessity, create a liability. Therefore, as Professor Glanville points out, there is no question of a person closing his mind to the risks involved, the fact hat he closing his mind itself is an indication of his awareness and knowledge of the risk. I am in full agreement with Professor Glanville’s statement since it appears to be a reasonable argument that when a person is aware enough of the risks to deliberately close his mind to them, this is a definite indication of his culpability through his prior knowledge. The issue of prior knowledge has formed an important of establishing liability in a case of damage to property, since it establishes the deliberate intent that characterizes Kenny’s definition of “maliciously”. Archbold has further clarified the distinction between “intent” and “reckless”. While the establishment of malicious intent is likely to bring upon the accused the charge of subjective recklessness that makes him liable for punishment, the “reckless” clause is subject to further refinement and may provide room for leeway in liability for a crime. As laid out in Lord Binghman’s judgment, Archbold clarified this distinction by stating that “intent” implies foresight and a desire to see the consequences revealed by that foresight, while “reckless” does not necessarily mean a desire to see the consequences happen, but merely reveals a willingness to take those risks. The element of foresight is very important in the determination of culpability. Foresight implies a certain prior knowledge of the consequences of the act and the committing of the act with the knowledge of the consequences that are likely to occur. The desire for the consequences to occur implies a certain deliberate intent to carry out the destructive act. Therefore such a person is aware of the consequences that will occur but desires those consequences and wants them to happen, therefore he is deliberately setting out to cause such damages. However, the designation of “reckless” conduct implies that a person is aware of the risks, but does not actually desire the consequences, he merely shows a willingness to take those risks, thereby revealing less malice. I feel that Archbold’s distinction is very helpful in clarifying when an act of arson has been deliberately committed and when it may be more accurately characterized as a willingness to commence risky acts. The judgment: 4. In arriving at the judgment in this case, Lord Bingham and the Court appears to have been heavily influenced by the definition of “maliciously” as laid out by Kenny and the Report of the Law Commission on the mens rea or the mental element behind criminal acts. The Court has deemed it important to relate the mental state of the defendants to the crime. In attempting to clarify the meaning of “reckless” as laid out under Section 1 of the Criminal Act of 1971, Lord Bingham highlighted the definition of “reckless” that had been laid out by the law Commission, which also clarified the existence of knowledge of the risk (and proceeding with the act inspite of the risk), as being the determining factor to attribute liability. The definition laid out by Kenny and the Law Commission both focus upon the need to prove intent or the mental state of the accused which led him/her into the act. He stated: “In a contested case based on intention….the tribunal of fact will readily infer such intention…..from all the circumstances and probabilities….”15 The Court also appears to have been influenced by Archbold’s statements that the desire for the consequences would establish intent. Therefore, the Court’s reasoning favored the establishment of intent before liability was imputed and in this case, the mens rea did not match up to the act, since the incident that occurred fitted into the category of “reckless”. Moreover, the boys could not have been said to have been fully aware of the consequences of their actions, which reduced liability. The Court was less impressed with the arguments of Professor Glanville Thomas who deems the very perception of risk to be equivalent to intent, since in this case the Court perceived that imposition of such liability through intent would constitute unfairness to the boys. Therefore, under the grounds of criminal liability for arson in this case, the Court did not find enough ground for a conviction, since (a) the boys mens rea did not match the act of omission and (b) the desire for consequences did not exist, thereby negating intent (c) while recklessness existed, it could not be deemed to be deliberate through the standards of a reasonable man. I believe the Court was right to lay stress on the mens rea in this instance and the application of Kenny’s beliefs and the definition of “reckless” in Section 1 of the criminal Act appear to be well justified, when considering the young age of the boys. The Court has also clarified that it applies this principle of applicability of mens rea only in the case of criminal damage and not in other areas such as statutory rape or other crimes. This distinction is important, because if this distinction had not been made, I would have found the decision unacceptable because it could have opened the way for crimes by juveniles by drawing on the principle of non awareness of the enormity of the consequences. I do feel however, that the young age of a defendant should not necessarily lead the Court to conclude that there is no intent to commit a criminal act. This determination needs to be made in reference to every particular case. Therefore, I believe that the Court should have qualified its decision by clarifying that in other cases, the definition of reckless would be applied in its entirety to assess in each case, the existence and extent of offender culpability, so that it is not used as a loophole for real juvenile criminals. Bibliography * Archbold, 1979. “Pleading, Evidence and Practice” 40th edition * Cunningham (1957) 2 QB 396 (CCA) * Herrington v British Railways Board (1972) AC 877 * Hogan, Brain, 1969. Comments on Working Paper no: 29 of the Law review Commission. Criminal Law Review 283. * Kenny, Courtney Stanhope Kenny, 1920. The Outlines of Criminal Law pp 163-165. (page 186 in the 16th edition, Oxford University Press) * Law Review Commission,1970. “General Principles: The mental element in crime” Working Paper No: 31 * R v Briggs [1977] 1 WLR 605 * R v Child (1871) LR1 CCR 307 * R v Faulkner (1877) 13 Cox 550 * R v Pembliton (1874) 2 LR.2 CCR 119 * R v Mowatt [1968] 1 QB 421 * R v Caldwell (1982) AC 341 (HL) * R v G (2004) 1 AC 1034 * Smith, John. ([1981] Crim LR 392 at 393-396 * Williams, Glanville, 1981. Recklessness Redefined 40 CLJ 252 Read More