House of Lords and the Privy Council in Interpreting Rules of Criminal Law - Case Study Example

A critical analysis of the record of the House of Lords and the Privy Council in interpreting rules of criminal law. A critical analysis of the record of the House of Lords and the Privy Council in interpreting rules of criminal law By Academia Research Writer Farzeela Faisal Criminal Law - Dual Meaning There are two common misconceptions regarding the criminal law, which is only a result of the culminated attitude of the House of Lords and Privy Council towards criminal offence. One commonly held view is that criminal law, unlike civil law, is not concerned with compensation between offender and the victim. Yet increasingly this distinction is blurred with compensation orders and other reparative ideas insinuating themselves as a regular adjunct of sentencing options. A second misconception concerns with the purpose of the criminal law. However, corporate risk-taking has disparate these two conceptions by rising issues against criminal law along with the law of corporations. It was not until the 1940s that English law tolerated the possibility of corporations committing all types of offences. For these, a much more limited doctrine was developed. Known variously as 'direct', 'identification' or 'alter ego' liability, it sought to overcome the objection that an unnatural person such as a company was incapable of forming an intention or being reckless. It opened up the possibility of corporations being liable for the whole range of mainstream offences, including fraud and manslaughter. The notion of identification was brought into play under which the wrongdoing of certain senior officers - natural persons - in the corporation was identified with the corporation itself - the unnatural person. Their acts and accompanying guilty minds, on this version of liability, were those of the company - they acted as the company and sometimes on behalf of the company. Thus, as a juristic person, a corporation itself was capable of committing almost any criminal offence, so long as a director or equivalent had authorized it. It is not necessary actually to prosecute a director or officer in order to find the company itself liable. It should be sufficient that there is evidence against the director or officer. Directors and officers can also be criminally liable as aiders and abettors of the company's crimes or of the crimes of their fellow directors. However, in practice such an action is rarely brought. Of more practical significance is the potential for growth in the use of what are known as directors' liability clauses, which are common in regulatory legislation and are increasingly demanded to satisfy European harmonization. Such legislation often has provided specifically that where the offence is committed by a corporate body with the consent, involvement of, or is attributable to the neglect of any director, secretary or similar officer, they as well as the corporation shall be guilty and liable to be proceeded against and punished accordingly. Prosecutions under these provisions were likely to increase and finally after suffering through an era of financial cutbacks in the early 1980's, many regulatory agencies learned lessons. As a matter of public policy, law does not allow insuring against Criminal penalties. The Companies Acts do, however, permit companies to cover the costs of civil claims and the costs of a successful defence of a criminal action. (Celia Wells) Changing Legal Attitudes The confusion of the English law resulted in changing legal attitudes to corporate criminal behaviour. As English law takes two different routes to find corporation guilty of an offence. For regulatory offences, the vicarious principle has always been used while for mainstream offences; the much more restrictive identification doctrine was invoked. Under this, only when directors of senior officers were, or should have been aware, of safety shortcuts will liability be possible. It was not until the House of Lords' decision in Tesco v Nattrass in 19711 that serious consideration was given to which senior officers would be regarded as being identified with the company itself for these purposes. (Celia Wells) Mens rea2 is used in the criminal law as a term to describe the various subjective mental states, which accompany the actus reus. There is a clear preference in the criminal law for subjective fault elements. For both common law offences and statutory offences there is a presumption of mens rea. Example - House of Lords decision DPP v Smith (1961) The high point of the controversy over intention occurred in England in 1961 with the House of Lords decision DPP v Smith (1961)3. Prior to that decision, the trend in the cases in the 20th century had been to restrict the scope of objective forms of criminal liability. The preference for subjective mental states means that criminal liability must be determined by reference to the actual state of mind of the defendant, rather than by reference to what the ordinary person ought to have known. The English court flirted briefly with an objective meaning for intention in DPP v Smith case. The case concerned the meaning of intent for murder at common law. However, it happened that the defendant was driving a car containing stolen property. A police officer directed him to pull over. The defendant accelerated and the police officer clung on to the side of the car. The police officer fell off and was killed. The trial judge directed the jury using an objective test for intention. The House of Lords endorsed the objective test, and held that a person is guilty of murder where an ordinary man would have foreseen that the defendant's action would result in death or grievous bodily harm. The effect of this decision in the UK was repealed by section 8 of the Criminal Justice Act 1967 and the mens rea for murder is now subjective. The concept of 'Intention' in the English Courts The English courts have grappled with this issue for more than twenty years in the context of murder. Example of Intention Defined Hyam [1975] AC 55 is a good example of the some of the problems with employing this extended definition of intention. The defendant poured petrol through a letterbox and lit it in order, she claimed, to frighten the woman in the house. In the ensuing fire, two of the woman's daughters died. Hyam claimed that she had not intended to kill them. Here, the House of Lords defined intention in a broad way to include not only direct intention but also foresight of a probable consequence. House of Lords took the view that intention does include foresight of a moral certainty. So if the defendant foresees that death is a probable consequence of her actions, only then the defendant has the relevant intention to kill. But the effect of Hyam was to introduce into the criminal law a broad definition of intention, which overlaps with recklessness introducing a new concept of confusion. In 1985 the House of Lords reconsidered the Hyam decision in Moloney [1985] AC 905. The defendant shot his stepfather with a shotgun at close range, but claimed that he had not had any intention to kill or hurt his victim. There was alcohol involved but this was not raised as a defence4. The House of Lords in Moloney, without expressly departing from Hyam, held that the degree of foresight has to be 'little short of overwhelming before it will suffice to establish the necessary intent'. In his view the 'golden rule' is that judges should avoid unnecessary definitions or explanation of intention, leaving the meaning of intention to the good sense of the jury. However, Lord Bridge pointed out that the judge can still direct the jury as to what intention is not, i.e. 'something quite distinct from motive or desire'. Conception of 'Recklessness' The High Court considered the meaning of recklessness in the context of murder at common law. Murder in the Northern Territory was governed at this time by the common law - the Northern Territory Criminal Code had not yet been enacted. The defendant was a road train driver and was thrown out of a motel bar for drunken behaviour. He returned in the early hours of the morning with his prime mover and drove it through the motel bar wall, killing 5 people on the spot. The defendant was charged with murder and convicted. The appeal raised the correctness of the trial judge's direction on the meaning of recklessness, in particular the precise level of foresight required for murder. The trial judge had directed the jury that the defendant would be reckless if he foresees the possibility that his conduct may cause death or serious injury. Under this direction, recklessness involves a low level of foresight. The High Court was unanimous in its judgment. It is extremely rare for the Court to deliver a single judgment. The Court rejected the view, which had been expressed in earlier cases (that recklessness for murder only required defendants to foresee death or serious injury was a possible result of their actions)5. Where there are no statutory provisions effecting the position, the High Court concludes that murder requires the defendant to know that death or grievous bodily harm is a probable consequence. So a person who foresees death or serious injury as a probable consequence is as morally blameworthy as someone who intended to kill. And in one view, it may be regarded as having intended those all consequences, pointing towards a reference to oblique intention. But the High Court, demonstrating better sense than the House of Lords, refused to be drawn into the oblique intention debate. In the early 80s the House of Lords and Privy Councils developed a dual meaning for recklessness. The case concerned the meaning of 'recklessly' under the statutory offence of criminal damage. The House of Lords held that in interpreting the word recklessly, the courts must apply the ordinary meaning and usage of the word. The Lords held that recklessness has two meanings at the same time. It embraces subjective awareness of a risk: the person who is aware of a risk but ignores it. But it also embraces an objective aspect: the person who fails to appreciate the risk when the risk of its occurrence would obvious to the reasonable person. The Lords concluded that inadvertence to an obvious risk was as morally culpable as subjective risk-taking. This decision of dual definitions caused uproar in the legal community. However, the Caldwell definition of recklessness still applies in England where it has been extended to other statutory offences like rape and reckless driving. Cases of Intoxication The approach of the early common law in England was extremely unsympathetic to individuals who committed crimes whilst in a state of intoxication. Until the 19th century evidence of intoxication was totally disregarded. In the early 19th century the courts began to take a less harsh approach. Although generally inadmissible, evidence of drunkenness was admissible in exceptional cases, reducing murder to manslaughter. However, the general policy of the common law prevented the defendant relying on self-induced intoxication as a defence. The early law reflected the prior fault approach to intoxication. The House of Lords affirmed this approach in DPP v Majewski in 19776 where the defendant was involved in a violent brawl in a pub, committing several assaults. His defense was that because of the alcohol and drugs he had consumed, he did not intend to commit the assaults. The appeal raised the issue of self-induced intoxication. The House of Lords reviewed the 19th century decisions, and drew a distinction between crimes of specific and general intent. In relation to crimes of specific intent, self-induced intoxication could be raised by the defendant. In relation to crimes of general or basic intent self-induced intoxication can never give rise to a defense. The House of Lords held that offences like assault and manslaughter were crimes of general intent. Later cases confirmed that murder, wounding, causing grievous bodily harm are crimes of specific intent7. (Mens Rea) Another aspect noteworthy about the Privy Council and the House of Lords responsibility is the fact that the judicial members of the House of Lords spend half their time sitting as members of the judicial committee of the Privy Council. The Privy Council is still the final court of appeal for a number of certain independent and dependent Commonwealth countries, which have written constitutions, with a chapter setting out and protecting fundamental rights and freedoms. These constitutional rights are markedly similar to the rights and freedoms stated in the European Convention. Indeed, the drafting of 'Westminster model' constitutions in the post-colonial period was much influenced by the European Convention. The trend started with the constitution of Nigeria in 1960, and continued with over twenty other Commonwealth countries. The law lords, to give them their informal title, frequently have to interpret and apply these constitutional provisions when sitting as members of the Privy Council and hearing appeals from overseas countries. On an appeal from Jamaica in 1993, the Privy Council upheld a claim that to execute a convicted murderer after he had spent fourteen years in suspense on 'death row', awaiting execution, would constitute inhuman punishment8. In September 2000, on six appeals from Jamaica, the Privy Council held that a person condemned to death is entitled to make representations to the Jamaican Privy Council before that body decides whether to recommend that the death penalty should be commuted, and that the prisoner is entitled to know what other information is placed before the Jamaican Privy Council. The Privy Council decided, further, that it would be unlawful to execute a prisoner before an international human rights body whom the prisoner had petitioned has made its recommendation and the Jamaican Privy Council has considered the recommendation. While on the other hand, the Privy Council rejected a claim that the complainant's constitutional right of property was infringed when his illegally parked Nissan Sunny motor car was towed away and released only on payment of a charge of about 6. In another case civil servants complained that their rights of property had been infringed when the government of Barbados imposed a cut in pay. The claim was rejected, on the ground that the government had a contractual right to reduce the pay of civil servants. On an appeal9 the Privy Council upheld a complaint that restraints on freedom of expression imposed on civil servants were more than was reasonably required for the proper performance of their duties. (Lord Nicholls) Bibliography Lord Nicholls, Available from < http://www.liv.ac.uk/pro/news/press_releases/2000/Lord_Nicholls.htm > Mens Rea, Available from < http://law.anu.edu.au/criminet/tmensrea.html > Prof. Celia Wells, Available from < http://www.freedomtocare.org/page166.htm > Read More