Foundations of Criminal Law - Assignment Example

? Criminal Law The realms of the modern criminal law are understood in a transparent manner with relation to distinctive sets of chronological procedures. The modern legal dimensions strictly envisage on the right of liberty as well as the security of the person and nobody will be deprived of his or her liberty in accordance with the procedure prescribed by the law1. But the intentional endeavors in the criminal behavior and acts are still strictly looked upon in the eyes of law. Fraud and insanity In the domain of criminology, the aspects of frauds and insanity carry immense significance. Fraud is defined as theft by deception or the way of acquiring something by trickery or by force2. Fraud losses impact deeply or adversely almost every aspect in business. The fraud management is mainly encountered through the Deterrence, Prevention, Detection, Mitigation, Analysis, Policy, investigation and Prosecution3. Although definitions of legal insanity differs according to states, generally a person is considered insane and not responsible for a criminal conduct if, at the time of the offense, as a result of a severe mental disease or defect, he is not able to appreciate the nature and quality of his criminal act4. SET 1 Case 1 The article is about a case against a person named Lord Hanningfield who had been held guilty for using the funds of Essex County Council mainly for his own personal interests by citing false claims. It is a case of theft by false accounting. Theft is defined as a punishable offence where a person may wish to dishonestly obtain property belonging to other5. There are five elements of theft which are appropriation, property, belonging to other, with the intention of depriving the other permanently and dishonesty6. Theft by false accounting arises when a person dishonestly destroys or falsifies an account or any record required for an accounting purpose. Also if the information furnished by the person, who may be required by any accounting purpose, is untrue by the knowledge of the person, it is also known to be theft arising out of false accounting7. False accounting is used to obtain more funds from the banks or related institutions8. In the article Lord Hanningfield was found guilty of using the funds of Essex County Council by submitting receipts and claims which were found to be false. It was found that he had provided false details about his travel expenditures to draw money out of the council. He had submitted a receipt of ?500 for traveling which was found to be false. He also used the facility of a chauffeur driven car provided by Essex County Council to his home when the distance was only of 46 miles. The normal allowance level is ?174 for a single night without a receipt. Lord Hanningfield had repeatedly violated this provision. He had booked for airfares to India and hotels outside London which were booked by others. Also, it was found that Lord Hanningfield was in full knowledge about the false claims when it was being committed. This is a case of fraud caused by theft in accounting as it satisfies the five elements for causing a theft a well as accounting inappropriately that is caused intentionally. However, Lord Hanningfield claim that he had used the money which he is entitled to does not provide a clear picture of theft. The above mentioned law does not explain this clause as whether the defendant had utilized his rights or it was a fraudulent behavior. The article is insufficient to deduce if it was fraud by abuse of position. There are statutory conditions against fraud caused by theft of false accounting. On conviction, the accused can be sentenced to imprisonment for a term not exceeding seven years 9. Case II In this case of fraud, the wife of a policeman was alleged of taking part in a ?10 million mortgage scam for the exchange of the high value goods. This is the case of fraud by false representation. A person is said to be in violation of this law if he person makes a false representation through dishonest means, for the intentions of reaping gains for him or herself.. Of the different elements of fraud the one that is showcased in the article is the fraud by misrepresentation of a material fact intentionally10. Here the defendant induces the plaintiff to enter into some transaction by misrepresenting material facts pertaining to the transaction. Misrepresentation leads another to believe in a condition that is actually different from the real fact 11. Fraudulent misrepresentation of facts is a type of opportunistic behavior. Here, the contracting party is entitled to claim damages if he suffers a loss due to the misrepresentation of facts made intentionally by the second contracting party. In the article the defendant Mary-Jane Rathie had gathered gifts worth more than ?1 million by quoting inflated prices of properties to the buyers. This money was then used to pay of the debts and purchasing new house. It is clearly a case of fraud by intentional misrepresentation of facts as the defendant had provided wrong prices for the properties to fulfill her own benefits in her complete sense. Case III The third article is about a fraud case where a person named Anthony McErlean faked his own death to claim an insurance amount of more than half a million pounds. The claim was made in the name of his wife. Fake witnesses were also produced. This is a case of occupational fraud12. Occupational fraud arises when the culprit uses his occupation to gain personal profits by deliberately misusing the resources of the organization. These occupational frauds can range from benign tricks to malignant scandles13. The elements of occupational fraud are firstly, the victim must have something that the fraudster wants, secondly, the fraudster betrays the victim’s trust deliberately and destroys his faith in a very designed manner. In the case of Anthony McErlean faking his own death, these elements were clearly demonstrated. He had framed his own death by taking help from others. It was a very clearly laid out plan. The person’s wife was also involved in it as she claimed to carry an urn containing the ashes of her deceased husband. The guilty had made up a story of how he was hit by a passing cabbage van when he was changing a wheel. Many false eye witnesses were also produced. These show that the article is an example of occupational fraud as the plan was a well designed and a sorted one. SET2 Case 1 In this case, the person named Arnold Burton reportedly killed an elderly couple by recklessly driving his Xtype Jaguar. He was however set free by the court on grounds of the stated fact that his mind was not in the normal condition, he was disorientated and perplexed and he might have been in a state of automatism at that particular moment. He did not realize where he was heading to. This was a case of automatism. In automatism, the accused is regarded to be in a state of unconsciousness or be suffering from impaired consciousness at the moment of committing the crime14. It is regarded to be a situation where the crime is committed involuntarily. It is done by the muscles without any control from the mind15. Automatism is divided into sane automatism and insane automatism. Sane automatism is one where the accused suffers a blow or is hit on the head and suffers from concussion or any such mental blocks. It refers to the situations where the person is hit or suffers any such instance externally16. It also means automatism caused by taking insulin or injections17. Insane automatism is one where the person conducts the crime at the moment when he is suffering from bouts of mental illness or disease. It generally refers to automatism caused by disease in the mind (Baird, 2005, p.77). In such situations, the person generally gets acquitted normally. The difference between sane and insane automatism is not very clear in law. As it is said that if any violent act is committed under the influence of insulin taken externally it would be held under sane automatism but if the same is committed due to an elevated level of insulinoma of the pancreas it is known to be insane automatism18. In the context of the article, it seems to be a case of sane automatism. It is reported in the article that the accused suffered from temporary mental block that left him perplexed. It was not mentioned how the mental episode was caused. It is not clear if the accused had any case of mental disease. Secondly, Mr Burton was a lifelong motoring enthusiast and also the chairman of the TVR sports car firm. So, it is quite unexpected that he would be unaware about the permissible levels of driving speed. Though Mr. Burton was acquitted in the murder case, the decision was not accurate completely. This is so, because the case reflected the conditions of sane automatism more than an insane one. Case 2 In this article an elderly man named Brian Thomas was initially accused of killing his wife while in sleep but was later set free as he was found to be suffering from sleeping related disorders and was in a state of automatism when the incident occurred. The tests and trails conducted found it to be a case of insane automatism. In insane automatism the cause of automatism is related with internal factors like a pre existing mental illness or disease in the brain19. Physical conditions like epileptic seizures can also lead to involuntary crimes20. Crimes committed out of sleeping disorders like sleep deprivation or sleep walking are held under insane automatism by some courts. Mr. Thomas had previous history of sleep disorder. Secondly, his wife had reported of some boy racers chasing her21. So it is quite evident that Mr. Thomas had imagined these boy racers and in his dream where he found himself to be engaged in a fight grabbed his wife’s neck thinking it to be a hand. Mr. Thomas was a devoted husband. So, it can be said that he wanted to protect his wife instead killed her. Mr. Thomas was acquitted by the court as they found true evidence of sleep disorders in him, which made him valid to seek defense under insane automatism. Case 3 In this case, a business man named Edward Leung was found guilty of attacking a female while in sleep. He was later acquitted by the court on the grounds that he was suffering from somnambulism which is a sleeping disorder and had a moment of automatism. Somnambulism provides viable defense for automatism. During sleep, violent behaviors or confused behaviors can occur if the person is touched or aroused in some way during sleep22. But it is found that the person has no memory of that moment when he regains his consciousness. In the case of Edward Leung, he was reported to have been drinking with her on the night of the incident. He was also offered to stay back at her place. He molested the woman in his sleep when he strolled into her bedroom. He had no memory when he woke up about the incident. He later said before the police that he suffered from sleeping disorders though he had no prior knowledge about it. Somnambulism is regarded as an obvious form of insane automatism as in sleep the person has no control over his state of action. Conclusion After analyzing the case studies, it has been found that in some of the cases the information provided by the media and the judgment given were not consistent completely with the laws in the legal books. This was seen in case of Lord Hanningfield where it cannot be said clearly if the person had misused the power of his position or exercised his rights which he claimed. Also in the case of Mr. Arnold Burton who had killed two persons while driving recklessly but was acquitted on grounds of automatism. The media report does not mention if the state of automatism was caused by an internal or external injury. So, the judgment declared cannot be taken to be faultless completely. The other cases presented the incident accurately and the court decisions were also found to be in accordance with the legal books. References 1. G. Brazier, Insider Dealing: Law and Regulation, (London: Cavendish, 1996) 2. K. Heller, & M. Dubber, The Handbook of Comparative Criminal Law. (Stanford: Stanford University Press, 2010) 3. M. Joshi, Occupational Frauds and Money Laundering. (Mumbai: Snow White Publications, 2005) 4. K. B. Kwok, Accounting Irregularities in Financial Statements, (London: Gower Publishing, Ltd. 2005) 5. C. Montaldo, The Insanity Defense Standard for Legal Insanity Has Shifted, 2012, http://crime.about.com/od/issues/a/insanity.htm (accessed July 15, 2012) 6. R. Miller, Le., R. & G. A. Jentz, Business Law Today: The Essentials. (Ohio: South Western Educational Publishing, 2005) 7. M.T. Molan, Sourcebook on Criminal Law. (London: Cavendish Pub Ltd, 2001) 8. J. C. Verster, S. R. Pandi-Perumal & D. L. Streiner, Sleep and Quality of Life in Clinical Medicine. (New Jersey: Humana Press, 2008) 9. L. Reznek, Evil Or Ill?: Justifying the Insanity Defence, (London: Psychology Press, 1997)Top of Form 12. S. Ramage, Further Issues and Serious Fraud Instances, (Indianna: iUniverseTop of Form, 2006) 13. T. M. Spranger, International Neurolaw: A Comparative Analysis (Springer Verlag, 2012) 10. M. J. Thorpy, & G. Plazzi, The Parasomnias and Other Sleep-Related Movement Disorders. (SanDiego: Lucent Books, 2010) 11. N. Lacey, C. Wells & O. Quick, Wells and Quick Reconstructing Criminal Law: Text and Materials, (Cambridge University Press, 2010) 12. N. Baird, Criminal Law Q&A 2005-2006 5/e. (London: Routledge Cavendish, 2005) 13. S. L. Emanuel, Criminal Law. (New York: Aspen Publishers Online, 2007) 14. W. K. Wilhelm, The Fraud Management Lifecycle Theory: A Holistic Approach to Fraud Management, (2004) 2, 2, http://www.utica.edu/academic/institutes/ecii/publications/articles/BA309CD2-01B6- DA6B-5F1DD7850BF6EE22.pdf (accessed on July 15, 2012) 15. V. H. Waikin, Wai-Kin, & W. K. Kin, Criminal Law in Hong Kong, (Netherlands: Kluwer Law International, 2011) 16. Q. Zhou, A Deterrence Perspective on Damages for Fraudulent Misrepresentation. The Journal of Interdisciplinary Economics, (2007) 19, 83-96, http://www.law-economics.cn/Upfiles/200791065288.pdf  (accessed on July 15, 2012) 17. W. S. Albrecht, C. C. Albrecht, C. O. Albrecht, & M. F. Zimbelman, Fraud Examination. (New York: Cengage Learning, 2011) Read More