Mens Rea in Criminal Law - Coursework Example

Criminal law Question one Introduction From the onset, it is imperative to acknowledge that mens rea is the is the guilty mind aspect of the accused person and it must be proved together with Actus reus which is the physical element of the crime. Further, in course of time, mens rea has been regarded as comprising of three components; negligence, reckless and intention. However, there have been numerous debates regarding the accurate definition of what actually constitute mens rea; and that has encouraged debates within the legal field. The focus of this paper is to explain the current test of reckless mens rea as well as evaluate Herring’s viewpoint with regard to, whether the current provisions in law are satisfactory in as far as reckless mens rea is concerned. Back ground of Mens rea- recklessness Legally, recklessness implies the taking unwarranted risk. The term has brought about numerous debates with regard to the best test to determine it. In course of development of criminal law two main tests have been introduced; subjective and objective tests. R v Cunningham [1957] 2 QB 396 formed the base of testing recklessness. The case introduced subjective test. This means that the defendant’s ability to gauge the risk at hand is questioned as well as the actual action taken that result in the risk. In this regard, Cunningham recklessness seeks to find out whether the person was in a position to foresee the risk involved but then went ahead with actions despite the ability to foresee risks1. The subjective test was carried out in many other cases but was reviewed under the M.P.C v Caldwell [1982] AC 341. This case introduced the objective test which introduced the notion of, Failure of the defendant to take notice of a risk that was obvious and one which any reasonable person should have seen2. Introduction of Caldwell recklessness brought squabbles since it conflicted with Cunningham recklessness. It eventually turned out that both tests had weakness. The problem of subjective test is that it is based on the accused individual’s perception with regard to the matter at hand. The prosecution is thus tasked with proving that the accused person was able to foresee the risk but went ahead to engage in the act. However, it is not easy to prove a person’s state of mind. This test meant that whenever an accused person could prove inability to foresee the risk, acquittal was the only option. On the other hand, Objective (Caldwell recklessness) was also unfair because it led to convictions of many accused persons who, genuinely, were not able to foresee any risk. This aspect was demonstrated in many cases such as Elliot v C ( 1983)3. Development of criminal law reverted subject test to offences that were non-fatal and this is evident in cases such as R v Spratt [1990] 1 WLR 1073, DPP v Morgan [1976] AC 182 and R v Parmenter [1991] 94 Cr App R 193. Caldwell test was used in cases that related to offences committed on malicious destruction of property while Cunningham test was used to crimes that were committed against a being. Both tests were carried out devoid of any frame work to guide on what test to use on what offence. The House of Lords, in a land mark ruling, overruled the objective test advanced by Caldwell test in the case of R V G & R [2003] 3 WLR and affirmed that subjective tests should be used in criminal damage. Further the A.G reference 2003 clearly elaborated the abolition of objective test in criminal responsibility in a case where a police officer had been charged with gross negligence following the death of a person who was in custody. While making the determination, it was clearly stated that subjectivity was the pillar of measuring the culpability of the officer without looking at other circumstances such as being on duty.It is, therefore clear that subjective test is the current test administered to determine criminal culpability of any accused person4. Current test for Reckless Mens rea The House of Lords ruling that quashed the use of objective test marked the end of the test and promulgated the exclusive use of subjective test in criminal responsibility. Lord Bingham clearly elaborated the reason for departure from the objective test (Caldwell test) in the case R V G & R. it was clear that whereas it was un imaginable that a person would unwilling expose another to danger eventually causing harm, it would be wrong to convict such a person if the actions were done without genuinely knowing the danger that they posed. In turn, that meant that it would be wrong to convict a person without delving into the precise nature of his mental state while committing the offence. It would, equally be unfair to subject the person to the expectation of ordinary person if the person has inherent challenges that make his capacity of reason fall below the standard of any other ordinary person. The current reasoning calls for subjecting the defendant to the realities that surround their status. This means that the question would focus on, “given the mental capacity of the person, would he have been in a position to know the dangers that lie. In that regard, if it is clear that the accused person would have been in a position to know the risk but, nonetheless, went ahead to commit the crime, then he is culpable. The departure from objective test was justified give the unfairness meted in Elliott [1983] 1 WLR 939. Use of objective test meant that the determination ought to have considered the reasoning of any reasonable person. It is evident that any reasonable person would have known the risk of lighting the rag that eventually helped spread fire. There was total disregard to the learning difficulties that the girl had. Despite the court acknowledging that she did not know that what she was doing was wrong and dangerous, she was still found guilty on account of objective test that interrogated what was expected of a reasonable person. As a matter of fact, due to her condition, the people who should have been held responsible were those who were looking after her5. Use of subjective test is cemented by the provision of the Law commission. The commission had made some proposition on mens rea before the inception of the Criminal Damage Act of (1971). The commission envisaged that mens rea would encompass recklessness occurring when a person acts knowing the risks that there is as well as the potential risk attributed to certain actions. The foundation of subjective test, therefore gives the judges and the jurists a task of ascertain the mental state the defendant rather than applying objective test. Continual application of the objective test would imply that people suffering from insanity would not escape because they, like all other people, are expected to reason like “reasonable man”. Jonathan Herring’s statement brings about a legitimate concern. It brings a whole new perspective to both subjective and objective test. Looking for example at R V G & R, the court subjectively looked at the mental statues of the boys and determined that since they did not know the risk involved in lighting the fire, they were not culpable. With regard to Herring’s view point it would have, equally, been prudent to broaden the scope of the test and ask whether any other reasonable person of their age and mental standard would have known the risk associated with their actions. To a great extent that makes sense since it would have been reckless for them to light the fire if a reasonable person within same age bracket and mental capability would have known that it was risky to do so6. The second concern by Herring is also legitimate because it seeks to shift the burden to the accused person with regard to offering explanation as to why despite the imminent risk, they went ahead with the actions. This comes in the backdrop of unavoidable circumstances such as emergency or illness, while at the same time disregarding inexcusable acts such as drunkenness and or anger. Despite the points raised by Herring, it is important to note that the current law for reckless mens rea is satisfactory since the law, through case law, has addressed all the concerns by Herring. For instance, with regard to the second part of the statement, under common law drunkenness is not a defence as evident in DPP v Majewski [1977] AC 443 House of Lords, a case where a person was found guilty of multiple assaults despite claiming that he was drunk hence did not have mens rea for the crimes. Similarly necessity is permitted in extra ordinary circumstance as evident in the famous Re A (Conjoined Twins: Surgical Separation) (2000) 4 AER 961. With regard to the first part of the statement, the law presumes that all people are reasonable through the concept of rebuttable reasonableness. This means the burden of proof shifts to the accused a person to show the peculiar nature of state of mind that should exempt them from treatment as a reasonable person ; only then does the subjective test dawn. This was elaborated in the famous MNaghtens case [1843] UKHL J16 (19 June 1843), who was acquitted of murder on account of insanity (state of mind). The burden of proof shifted to his side to disapprove rebuttable presumption of sanity (clear state of mind). Question two Both Gary and Shelly bear certain criminality liability emanating from their actions and counter actions. Gary bears some liability by, first and foremost parking at the door step of Ann. That brings some tortious liability which is not criminal in nature. The real criminal nature of Gary’s actions is evident when he, reacts to Shelly’s actions by throwing a brick at her window only for the brick to land on the neighbour’s window. Gary is guilty of malicious damage of property through the doctrine of transferred malice. Criminal Damage Act of (1971) gives the definition of what would constitute damage to property. That law prohibits destruction of another person without any justifiable cause. It also prohibits recklessness that would eventually lead to the destruction of property. In essence, that law provides that the person would be guilty of the offence whether or not the damage or destruction takes place. Effectiveness of the legal provisions is dependent on several circumstances that must be proved. Damage to the property must occur. They must belong to another person; not the accused person. The damage must be devoid of legal excuse as well as intention or some degree of recklessness that eventually leads to the damage to the property. Gary’s action of throwing the break yielded all the elements discussed. The window did not belong to him; he recklessly threw the brick that eventually broke the window causing damage. Even through Gary did not intend to hit the neighbours window he is still liable under the concept of transferred malice. Transferred malice advocates for the transfer of mens rea and was well elaborated in the case of R v Saunders (1573) 2 Plowd 473. In this case, the defendant who wanted to marry another wife poisoned some apple and gave to his wife. His wife took a bite but eventually gave it to her daughter who eventually died from the arsenic poison. It was held that he was liable for her death even though his intention was to kill the wife and not the daughter. In this breadth, it is immaterial that Gary had intended to harm Shelly but eventually harmed the neighbour. Through the doctrine of transferred malice he is guilty7. Gary is also guilty for assault. This was evident when, as a result of the break that he threw, it landed on near the feet of the neighbour. The definition of assault is any act that causes apprehension of infliction of injury to another person. Obviously, once the window was shattered by the brick, the neighbour had apprehension because it was directed to him even though it merely landed on near his foot. In R v Martin1881 QBD, defendant blocked the door of a theatre and eventually caused panic among people. Even though they did not get any direct harm, it was held that defendant was guilty because of causing apprehension of bodily harm. The common legal doctrine holds that throwing a bottle of water at someone is assault but if it lands on the person it is battery. The same principle could apply in the case of Gary throwing the break that eventually causes panic to another person as well as potentially harming another person. It is evident that, even Gary later thought of his actions as having the potential to cause harm to another person8. Gary is equally guilty of assault by grabbing a spanner and running towards Ann with it. It is axiomatic that when Gary was him running towards her with a crude weapon, she must have been apprehensive of potential harm. Despite not directly hitting her, she must have panicked. Under common law assault being a basic intent crime, provocation is not a defence. For battery to surface three elements must be proved; there must be use of force, there must be hostility and thirdly, there must be no consent. All these three elements are evident in Gary’s actions towards the victims (Ann and Shelly). He used force while throwing the break and this was done in a hostile manner without the consent of either of the victims. Gary has some criminal responsibility given that he made a dent on the raspberry bath with an aim of making it appear faulty. That, he did so that it could be returned to the seller in order to exchange it for another one. Those activities eventually lead to destruction of the property of Julie and Mark. There is no evidence that Julie consented to his actions and as such he is criminally liable for the malicious damage to property. His criminal responsibility is to the extent of only destroying the bath tap. Shelly, is criminally liable for writing on Gary’s car using nail polish. Even though she was provoked, legally speaking there is no justification for tampering with property of another person. This action is contrary y to the law prohibiting defacing of private and public property and mere writing “Dickhead” qualifies as a crime. It is evident, as described that both Shelly and Gary are criminally responsible for the different actions. Their criminal acts have both mens rea and Actus reus; two components that are required to make the acts criminal. Reference Bartholomew, M., & McArdle, P. F. (2011). Causing infringement. Vanderbilt Law Review, 64(3), 0_13,0_14,675-746.  Hinchliffe, S. (2000). 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