Essential Elements of a Criminal Offence - Term Paper Example

Introduction The two essential elements of a criminal offence are the actus rea and the mens rea. While the actus rea which encompasses the actual conduct constituting the crime is straight forward, mens rea is a bit more complicated. Both intention and recklessness can be used to substantiate the existence of mens rea. The definition and application of the doctrine of recklessness has developed into a confusing and contradictory exercise and the recent House of Lords decision in R v Gemmell and Richards (2003) was an attempt to remove the previous confusions and contradictions. Whether or not the House of Lords achieved this goal can only be determined by an examination of the case law that preceded this decision. R v Cunningham (1957) R v Cunningham has the distinction of introducing into criminal law a definitvie test for the doctrine of recklessness. Historically, it has been difficult for the term recklessnes to find adequate expression in the criminal courts. There have even been attempts by the courts to substitute gross negligence in involutary manslaughter cases with the term recklessness. The Law Commission in its Report No. 237 on Legislating the Criminal Code explained as follows: “Because judges found the terminology of ‘gross negligence’ unwieldy and difficult to explain to juries, they began to use the word ‘recklessness’ as a synonym to describe a high degree of negligence. In other cases judges went further, and tried to give detailed definitions of recklessness.”1 R v Cunningham can be described as a defining case in this regard. It had the capacity to encompass virtually any criminal offence in that it was concise in its approach to recklessness. In the Cunningham case the defendant committed theft by taking money from a gas meter. In the process of doing so he ripped the gas meter out of the wall to which it was attached with the result that the gas lines were left open. Gas escaped into a neighboring basement causing harm to an occupant. The defendant was subsequently charged with and convicted of “unlawfully and maliciously adminsitering a noxious thing so as to endanger life”2 within the meaning of Section 23 of the Offences Against the Person Act 1861. The conviction was reversed on appeal on the grounds that the judge’s jury directions were erroneous in that he aligned the term malicious with the term wicked and should have been more specific in his directions.3 The Court of Appeal went on to explain that: “In any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but as requiring either ; (i) An actual intention to do the particular kind of harm that in fact was done; or (ii) recklessness as to whether such harm should occur or not (i.e., the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk)…”4 In other words the test is a subjective one and the facts must support a contention that the defendant knew or was aware of the risk that would result from his conduct and went on to take the risk nonetheless. This formulation of a subjective test in respect of recklessness endured for many years until the 1982 decision of the House of Lords in R v Caldwell. R v Caldwell (1982) The defendant, a disgruntled former employee of a hotel got intoxicated one night and proceeded to set fire to the hotel. The defendant was subsequently charged with two counts of arson one of which was founded on the defintion of Section 1(1) of the Criminal Damages Act 1971 which related to destruction of property. The defendant was convicted and appealed with the result that the Court of Appeal quashed the conviction. On appeal by the prosecution to the House of Lords, the appeal was dismissed but Lord Diplock redefined the meaning of recklessness as follows: “In my opinion, a person charged with an offence under Section 1(1) was ‘reckless as to whether…property would be destroyed’ if (i) he does an act which in fact creates an obvious risk that property will be destroyed or damaged and (ii) when he does that act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and nonetheless gone on to do it.”5 This assertion by Lord Diplock created a two-tier test to the question of recklessness. The first leg of the test was consistent with the Cunningham subjective test and was therefore not problematic. However, the second leg of the test created some difficulties since it presupposes that all reasonable persons pause to take into consideration the consequences of their conduct. The underlying theory is that all persons would be able to appreciate the obvious risk associated with his or her conduct and would therefore be criminally accountable for the consequences. This introductin of an objective test only served to open the door to injustices since it left no room for the courts to take into consideration the mental incompetence of a defendant. For instance in the case of Elliot v C [1983] a 14 year old girl of below average intelligence went into a shed, poured spirit on it and set it on fire destroying the shed. The magistrate found that based on the Caldwell ruling the girl must have realized that the spirit was inflammable and had she given any thought to the matter she might have realized how much damage it would have caused. But since the Caldwell direction required that the risk must be obvious to the defendant if the defendant gave any thought to the matter, it was equally obvious in this case that the risk would not have been obvious to this particular defendant had she given any thought to the matter.6 On appeal on a point of law, Glidewell J held that as a result of the Caldwell direction incapacity was not a defence and the application of the recklessness test was entirely an objective one.7 Professor Ashworth points out that the most obvious difficulty with the Caldwell direction is that: “…it cannot properly be termed mens rea, because it is not a state of mind. A person who fails to give thought to a consequence does not have a state of mind in relation to that consequence. But this presupposes that the only proper ground for ascribing blame for serious offences is advertance – in other words, that the minimum requirement for ciminal culpability should be that the harmful consequences passed through D’s mind.”8 The essence of the criminal element of mens rea was implicitly compromised by the ruling in R v Caldwell since mens rea requires that the defendant intended the consequences of his conduct or at the very least was aware of it the consequences but takes the risk any way. The appliation of an objective test in ascertaining the mental element of recklessness is contrary to the fundamental principles of the mental element required in criminal conduct. It does not permit jurors to take into account the special characteristics of a defendant. For instance a defendant’s age, experience or mental incompetence might have operated to bar an appreciation for the risks associated with his or her conduct. The Caldwell decision effectively aligned both forms of reckless conduct to the same standard by removing the distinction between objective and subjective tests. The result is that those incapable of acting prudently were at risk of being criminally culpable. Perhaps the only thing that Caldwell accomplished outside of confusing the concept of mens rea was the facilitaion of criminal convictions. Since Caldwell does not require the jurors to take account of the special characteristics of a defendant in assessing whether or not the risk was foreseable, a conviction was much easier to achieve. R v Gemmell and Richards (2003) In R v Gemmell and Richards [2003] two defendants aged 11 and 12 were charged with arson and causing damage contrarty to Section 1(1) and (3) of the Criminal Damages Act 1971. The two defendants were on a camping trip when they set newspapers on fire and threw the burning newspapers under a bin with the result that a massive fire erupted and spread causing damages of approximately one million pounds. These are the facts that gave rise to the criminal charges. Although it was undisputed that the boys had not appreciated the magnitude of the risk created by the burning newspapers they were convicted.9 On appeal against the conviction the Court of Appeal reasoned that it was bound by the ruling in Caldwell and affirmed the conviction. The Court of Appeal noted however that it was perhaps time that the House of Lords reexamined the “Cladwell test.”10 The Court of Appeal went on to certify the following point of law for response: “Can a defendant properly be convicted under Section 1 of the Criminal Damage Act 1971 on the basis that he was reckless as to whether property was destroyed or damaged when he gave no thoguht to the risk but, by reason of his age and/or personal characteristics, the risk would not have been obvious to him, even if he had thought about it?”11 The House of Lords unanimously ruled that the answer to that question was no. Lord Bingham gave the Lords’ judgment which listed in detail, four reasons for allowing the appeal. In the first place in order to be properly convicted of a serious criminal offence the defendant’s mens rea is required to be assessed according to a subjective test. As Lord Bingham explained a person taking what amounts to an obvious risk is clearly at fault. However, if a person “genuinely does not perceive the risk” he or she is clearly not culpable.12 Secondly, the Caldwell case only left open the possibility of “obvious unfairness.”13 In the third place, the Caldwell ruling missinterpreted the meaning of “reckless” as contained in the “1971 Act” since there was no “evidence that Parliament intended that it should have an objective meaning.”14Fourthly, the objective recklessness had not been received well by academics and critics in general.15 Lord Bingham looked into the reasoning for the Caldwell test and surmised that it was intended to remove loopholes that permitted acquittals “of those” that ought properly “to be convcted.”16However, Lord Bingham noted that this was not a problem prior to the Cladwell test and would certainly not be a problem should the pre-Caldwell recklessness principle be restored. After all, juries have always had to determine based on the facts and circumstances of a case whether or not the defendant had the necessary intention to bring about a particular result. Lord Bingham went on to note that: “Similarly with recklessness: it is not to be supposed that the tribuanl of fact will accept a defendant’s assertion that he never thought of a certain risk when all the circumstances and probalities and evidence of what he did and said at the time show that he did or must have done.”17 The impact of this decision was the restoration of the Cunningham subjective recklessnes test. In other words recklessnes can only be substantiated if there was evidence that the defendant had some degree of foresight with respect to the risk associated with his conduct. A test which required a finder of fact to ignore the special circumstances of a defendant of some limiting characteristic was clearly offensive to jurors.18 It is important to note however that Lord Bingham stated in no uncertain terms that its position on the subjective test in respect of recklessness in this particular case would only be appliable to recklessness within the meaning of the Criminal Damages Act 1971.19 Conclusion R v Gemmell and Richards is in its infancy and it is therefore too early to judge how it will impact the question of recklessness in general. Lord Bingham did say that it was entirely unfair to apply an objective test in determining culpability in accusations of serious criminal offences and this will no doubt influence the direction of future decisions. Many statutory offences make provision for the appropriate mens rea, whether it is intention or recklessness and those cases will obviously not be impacted by the decision in R v Gemmell and Richards. At the very least, R v Gemmell and Richards set the record straight in the application of the correct test to be applied in determining recklessness in criminal damages offences. Lord Steyn submitted however that applying the objective test in criminal justice cases is consistent with “the general tendency in modern times of our criminal law.”20 In order to achieve justice it is “necessary to look at the matter” from the defendant’s perspective.21 Only time will tell if R v Gemmell and Richards will influence the application of a subjective recklessness test in other criminal offences. Common sense dictates that it should since mens rea by impliation requires an interpretation of specific facts and circumstances for each offence. Logically, the same criteria should apply to each defendant accused of those criminal offences. If the trend described by Lord Steyn continues then R v Gemmell and Richards will have brought some predictablity and consistency to the criteria for establishing recklessness. Works Cited Ashworth, A.J. and Metcalfe, N.P. (2004) “Arson: Mens Rea – Recklessness Whether Property Destroyed or Damages.” Crim. L. R. pp 369-372 Law Commission No. 237. (4 March, 1996) “Legislating the Criminal Code: Involuntary Manslaughter.” R v Caldwell [1982] AC 341 R v Cunningham [1957] 2 QB 396 R v Gemmell and Richards [2003] UKHL 50 Elliot v C [1983] 2 WLR 939 Read More