The System of Criminal Law - Assignment Example

Imagine that you have been asked to write a lecture. Your audience will be people of average intelligence, but with no specialist knowledge of the law or legal system. Your objectives are to ensure that your audience understands:- The key requirements for criminal responsibility This paper looks at the fundamental concepts and principles of the system of criminal law. It give readers a better understanding on the concept of ‘actus reus’ and ‘mens rea’ as well as looking into the subjective and objective test given. The primary principle relating to criminal responsibility is actus non facit reum, nisi mens sit rea meaning an act cannot make someone legally blameworthy in the absence of a guilty mind. The key requirements for criminal responsibility are the two very important concepts constituting a crime which is ‘actus reus’ and ‘mens rea’. The former is primarily concerned with the ‘physical’ aspect of criminal responsibility whereas the latter is concerned with the ‘mental’ aspect. In understanding actus reus one must establish from the very beginning that it constitutes something much wider than just a criminal act. In some instances failure to act or omission constitute actus reus of an offence. It is usual that just a physical act is required to satisfy actus reus requirements. However, in certain circumstances must prevail and certain consequences must follow from the action/s of the accused. In relation to statutory offences, such statutory provisions and decided cases that have interpreted them will indicate what constitutes the actus reus of a particular offence but may not necessarily indicate that whether or not liability can arise by means of an omission. Accordingly a useful working definition of actus reus is that it comprises all the elements of the definition of the offence except those that relate to the mental element (mens rea) which is required on the part of the accused. (Allen, 1991, 18). In understanding the term mens rea it is not easy to decide on the evidentiary criteria for something as hard to define as mental state of a given offender. They are physical control at the time the act took place. Some terms of mens rea known are volition meaning knowledge of the relevant circumstances and foresight of the consequences. In most crimes if both elements actus rea and mens reus are not present then there is no crime committed. However, in some crimes it does not embrace the above rule and this are offences of strict liability and inchoate cases. The extent to which, if any, strict liability and inchoate offences differ from the normal requirements of a crime . In any legal system most crimes must be prescribed to a physical element or a wrongful act commonly known as actus reus; and the mental element or guilty mind known as the mens rea. As reiterated above if both elements are not present then there is simply no crime. In contrast, strict liability offence is one in which there is no requirement of mens rea in relation to one or more elements of the actus reus. In other words, it focus on the harm done. In the UK jurisdiction, most strict liability offences are statutory in origin and are often described as regulatory in nature. Therefore there are strict liability offences within the realm of law relating to issues of pollution Alphacell v Woodward [1972] AC 824. In the above case, the defendants were convicted under section 2(1) of the Rivers (Prevention of Pollution) Act 1951 for causing polluted water to enter a river. It was held that the fact they had no knowledge that the pollution was taking place and that they mistakenly thought that their filtering system was operating effectively did not constitute a defence. The existence of such offences and the fact that persons can be criminally liable without the prosecution being under any obligation to address the issues of mens rea in relation to one or more elements of the actus reus of an offence would seem to be in direct conflict with everything that we have discussed initially in this paper. Another contrasting feature in English law is when an accused person must have done an unlawful action and must have the intention to do so. This is distinguished under the complicity of mens rea and actus reus. Complicity like conspiracy is referred to as inchoate offence. These offences relate to criminal actions that take place before a criminal action takes place. It is not a crime itself. Meaning where two or more people having the mens rea does not mean a crime is committed. Only when the actus reus is committed then the parties have committed a crime. It is important to identify who the principals and who are the accessories. Mens rea differ to both these identities where it must always be proven to the latter but not to the former. The principals are the ones who perform the physical elements actus reus of the offence. Generally, accomplices are referred to all the parties involved in the crime. Another category of accomplice is the innocent agent who does not participate in the crime at all, however, has brought about the actus reus and does not have the mens rea. For instance, a person sends a letter bomb to another through the Post Office who later becomes injured by the bomb. The innocent agent is the postman who delivered the mail. The meaning of ‘actus reus’ and ‘mens rea’ and the extent to which they must coincide Mens rea is a wide-ranging phrase used when discussing the mental element of criminal offences. It relates more to the mental state that must be shown or present in order to establish criminal liability. This is as per to the definition of the offence. So, it is important to think of mens rea a part of the definition of the offence that as the description of a person’s state of mind. In examining statutory provisions and other sources that might contain definitions of offences the words that relate to the mental element of the offence include knowledge, intention, willful, reckless, malicious. It has long been the established rule that in order to be found guilty of a criminal offence, the required mens rea must coincide with the relevant acts, circumstances, consequences, events or omissions that make up the actus reus. It means that both elements must be present at the same time. That difference between objective and subjective mens rea. In establishing probably the hierarchy of mens rea with the harder to establish mental states, that is usually associated with the offences that carry the harshest forms of punishment in the event of conviction. The hierarchy points from the harshest down to the easier to establish (mental state) offences. Similarly, in line with the terms of what the prosecution has to prove from offences of the harsher punishment to those that do not carry heavy penalties. It should be clear that the divisions between the different levels of mens rea are not always clear. A very important branch of mens rea is knowing what is subjective and objective in a crime. Prior to establishing an example we will look at fault element. A fault element is described as ‘subjective’ when it is the actual standards or mental state of the accused person that forms the basis for judging whether the mens rea requirement for a given offence has been satisfied. In terms of a fault element said to be ‘objective’ it involves judging the accused person by the external standards of the reasonable person. Illustration: What is recklessness? A person is considered to be reckless when he does not intent to cause harm but brings about some form of harm by virtue of having taken an unjustifiable risk. The prosecution therefore must establish the following that the risk that was taken by the accused was justifiable and may also have to adduce further proof in order to establish recklessness. Proof may relate to the following:- that the accused knew the risk; that even though the accused had not considered the risk the ‘reasonable man’ would have done so; that the accused had considered the possibility of there being a risk but had decided wrongly that there was none. Therefore, subjective recklessness is the standard of where it can be shown that the accused person consciously took an unjustifiable risk and that the taking of that risk was unreasonable. In other words, the subjective standard is the standard of the person who has taken the risk. It is irrelevant that the accused may have overlooked the risk as a result of being angry or having put the risk to the back of her mind temporarily. This test is confirmed in the case of Cunningham [1957]2 QB 396. In terms of the objective standard that is the unjustifiable of the risk some questions that need to be asked is; How great was the risk? How beneficial to either the victim or society as a whole was the activity in which the accused was engaged when he took the risk? In the case of Caldwell [1982] AC 341 the House of Lords extended that already established in Cunningham whereby Lord Diplock stated that the mens reus for this offence should be given its normal meaning and should therefore be deemed to cover the situation in which the accused gave no thought to the risk of harm that might arise or the accused had recognized that there is some risk involved and has nevertheless continued with the act. How much of a cause, of the actus reus of an offence, that a defendant must be liable for committing by commission. Some ways of establishing liability by means of commission is identifying a parallel means of determining the way liability can arise in relation to a crime. Such commission differs from crime to crime. A conduct crime is one that prohibits a particular type of conduct without any reference to the effect of that conduct. An example would be perjury because it is the conduct of giving false testimony whilst under oath that is prohibited regardless of whether or not anyone believes that testimony. A result crime is where a particular harm occurred is required in order for the actus reus to be satisfied. In other words, it must be proved that the act/s or omission/s of the accused led to a particular result for instance in a murder. If a person intends to bring about the unlawful death of another human being and undertakes a particular action or course of conduct with a view of bringing that about but is somehow prevented or frustrated, then there is no liability for murder. Even though there may be liability for attempted murder. This indicates that it is necessary that the whole actus reus be proved in order for criminal responsibility to be established. If one element is missing then no offence has been committed. When, if ever, an offender can be liable for causing an offence by failing to act. Generally the criminal law has sought to socially control by means of punishing persons who do things that are prohibited than by punishing those who fail to do something that may be considered of social value. However, criminal responsibility may arise in relation to omissions or failure to act in some cases. Express offences of omission: In the UK an example of such offence is the willful neglect of a child in such a manner as to cause it unnecessary suffering or injury to a child’s health. [section 1(1) of the Children and Young Persons Act 1993]. Breach of duty to act: Another example is where a statute imposes a duty on particular classes of persons to do particular things however; failure to comply will constitute an offence. In section 6 of the Road Traffic Act 1988(UK) it is an offence to refuse to undertake a breathalyzer test when requested to do so by a police officer. However, in English common law there is no general duty to intervene to save someone but over time the law has recognized some instances in which such a duty can be satisfied and where failure to intervene will constitute an offence. 1. Duty arising out of contract In cases where an accused acts in breach of a contractual duty to do something and death results, even if the victim is not a party to the contract, the accused may be found guilty of manslaughter. 2. Duty arising out of relationship In the existence of close relationships of family members or between parents and children can give rise to a duty to act in order to protect from physical harm. 3. Duty arising out of assuming the care of another In cases where someone voluntarily takes on the care of another who is unable to care for himself (instances of age or illness or some other infirmity) a duty is then owed to that person. 4. Duty arising from the creation of a dangerous situation When a person inadvertently or without forming the appropriate mens rea sets in motion a chain of events that will cause harm to another unless uninterrupted, that person is under a duty to prevent or minimize the harm on becoming aware of the dangerous situation that has been created. In the case of Miller [1983] 2 AC 161 a vagrant who was squatting in a house woke up in the night to discover that his cigarette had set the mattress on fire. He moved to another room and went to sleep without making any attempt to extinguish it. The House of Lords dismissed the appeal on the grounds that in creating the dangerous act (arson) the defendant has rendered himself under a duty to do something about it when he became aware of it. 2,276 words. REFERENCE Allen, M. (1991) Textbook on Criminal Law. Blackstone Press Ltd, London. Case law cited Alphacell v Woodward [1972] AC 824 Caldwell [1982] AC 341 Cunningham [1957]2 QB 396 Miller [1983] 2 AC 161 Legislation cited Children and Young Persons Act 1993 Rivers (Prevention of Pollution) Act 1951 Road Traffic Act 1988(UK) Read More