Criminal 6 : LLB London

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R v Malcherek; R v Steel [1981]: what constitutes death.

only one true test of death and that is the irreversible death of the brain stem, which
controls the basic functions of the body such as breathing.

R v Malcherek; R v Steel [1981]: what is the question for J and Jury

whether the judge in each case
was right in withdrawing from the jury the question of causation. Was he right to rule
that there was no evidence on which the jury could come to the conclusion that the
assailant did not cause the death of the victim?

R v Malcherek; R v Steel HL approach to causation

the original wound or injury was
continuing, operating and indeed substantial cause of the death of the victim, although need not be substantial to render the assailant guilty. the discontinuance of treatment in those circumstances does not break the chain
of causation between the initial injury and the death.

Malcharek and Steel what is conclusion of intervening medical aid

the fact that the victim has died, despite or because of medical treatment for the initial injury given by careful and skilled medical practitioners, will not exonerate the original assailant from responsibility for the death.

What is negligence

Negligence is not a form
of mens rea! determined by reference to an objective standard (i.e.
would a reasonable person have/have not done what the defendant did/did not do?).

Doctor's administration of medicine, mens rea for murder. Adams [1957];NOTE: direction approved by the House of Lords in Airedale NHS Trust v Bland [1993]

Doctor is entitled to do all that
is proper and necessary to relieve pain and suffering, even if the measures he takes may
incidentally shorten life... no mens rea even if doc knows it will shorten life. HOWEVER generally motive is not important.

R v Cox 1922: law distinguishes between allowing to die which may include the
giving of palliative care which incidentally shortens life and killing. What is conclusion of Cox

a doctor who performs a positive act to end a patient's life will
be guilty of murder even where the patient has requested this. patient was dying, with her family's approval she begged Dr Cox to give her a lethal injection, which he did. He was convicted of attempted murder.

basic, specific, ulterior intent differences

An offence of basic intent is one for which recklessness is sufficient mens rea. A crime of negligence is also a basic intent offence. For a crime of specific intent nothing less than intention on the part of the defendant must be proved. An ulterior intent crime is one which requires mens rea in relation to a consequence which goes beyond the actus reus of the offence.

Majewski [1977] committed a series of assaults while under the influence of alcohol and drugs: when is self-induced intoxication as evidence of lack of mens rea a valid defence?

Relevant evidence for crimes of specific intent but not for those of basic.

example of ulterior intent.

Burglary contrary to s.9(1)(a) of the Theft Act 1968.
The ulterior mens rea is the intention to commit
one of the three offences (stealing, GBH, damagin building or things therein). It is not necessary that he goes on
to commit any of these offences: it is enough that, at the time of his trespassory entry,
he intended to do so

Direct intent

A person could be said to have a direct intention where it was their purpose to achieve
a particular result

Oblique intent

A person could be said to have an 'oblique' intention where, although a particular
result is not his primary purpose or objective, he appreciates, as a virtual certainty,
that that result will occur as a consequence of his conduct.

Moloney [1985] : How can we determine if D intended.

First, was death or really serious injury in a murder case (or whatever relevant
consequence must be proved to have been intended in any other case) a natural
consequence of the defendant's voluntary act? Secondly, did the defendant foresee that
consequence as being a natural consequence of his act?

Nedrick [1986] how does it refine Moloney guildelines for determining intent. D poured paraffin oil through the letterbox of a house, against whose owner he had a grudge.

jury should be directed that they were not entitled to infer the necessary
intention unless they felt sure that death or serious bodily harm was a virtual certainty -
barring some unforeseen intervention - as a result of the defendant's actions and that the
defendant appreciated that such was the case.

summary offence

can be proceeded without jury trial

Woollin 1998 facts

W lost his temper and threw his three-month-old son on to a hard surface. His son sustained a fractured skull and died. W was charged with murder. The Crown did not contend that W desired to kill his son or to cause him serious injury; the issue was whether W nevertheless intended to cause serious harm. W denied that he had any such intention.
charged with murder, convicted, CA upholds, but HL=> MS

What issue raised by the crown in Woollin. How does judge direct jury?

the issue was whether W nevertheless intended to cause serious harm.
.. if D must have realised and appreciated when he threw that child that there was a substantial risk that he would cause serious injury to it, then it would be open to you to find that he intended to cause injury to the child and you should convict him of murder

Where does Nedrick test fail?

It may exclude a conviction of murder in the often cited terrorist example where a
member of the bomb disposal team is killed [as] in such a case it may realistically be said
that the terrorist did not foresee the killing of a member of the bomb disposal team as a
virtual certainty.

What is the correct test from HL Woolln; unclear if this is substantive law.

if the jury is satisfied beyond reasonable doubt that the defendant foresaw
the consequence as being virtually certain, it must find that he intended it or whether
it is evidence from which the jury may find that he intended the consequence.

What is suggested to be the correct test for intention in murder cases.

foresight of virtual certainty on the part of the
defendant would be the correct test.

When should Nedrick guidelines be given to jury

Therefore, please remember that these guidelines should only be given to juries in
the circumstances where the evidence is that it was not the defendant's purpose or
objective to achieve a result. Generally the issue of whether a defendant intended a
consequence should be left to the good sense of the jury.

Moloney: what is foresight

Lord Bridge pointed out in Moloney that foresight was merely evidence of, but was not to be equated with, intent.

Was GBH intended?
a) baby across the room knowing that it was virtually certain that it
would suffer GBH.

yes Woolin test, is if GBH was a virtually certain consequence of her conduct, jury may find that she intended it.

Was GBH intended?
She threw her baby across the room knowing that there was a substantial risk
that it would suffer GBH.

substantial risk is not sufficient for intent in GBH (Woollin was determined to be a misdirection, which blurs distinction between intention and recklessness).

WAS GBH intended?
She threw her baby across the room hoping it would land on the bed and suffer
no harm.

desire is irrelevant for issue of intention.
Woolin test, is if GBH was a virtually certain consequence of her conduct, jury may find that she intended it.

recklessness definition Cunningham 1957

knowing that there is a risk that a consequence may result
from his conduct, or that a relevant circumstance may exist, he takes that risk and it
is unreasonable for him to do so having regard to the degree and nature of the risk
which he knows to be present. This is deliberate conscious risk taking, based on what
the defendant himself foresaw. Lack of foresight of the risk entitles the defendant to an
acquittal.

How does Caldwell [1982] extend definition of recklessness

in respect of the offence of criminal damage - to include a defendant who had not given
any thought to the possibility of there being an obvious risk of damage to property. (required that it is obvious)
overruled by the House of Lords in R v G [2003]

Seymour [1983] recklessness?

In Seymour [1983] 2 AC 493 the House of Lords applied it to the offence
of manslaughter. disapproved later in Adomako.

R v G 2003: point of law,

D under Criminal Damage Act 1971
on basis he was reckless as to whether property was destroyed or damaged when
he gave no thought 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?

What is the reasonable bystander in R v G

The ordinary, reasonable bystander is an adult. He does not have expert knowledge. He
has got in his mind that stock of everyday information which one acquires in the process
of growing up.

How are the boys treated as reasonable bystanders in R v G

the ages of these
defendants are irrelevant. Their good characters are irrelevant. No allowance is made by
the law for the youth of these boys or their lack of maturity or their own inability

result of R v G

convicted
In due course the judge made a one year supervision order in the case of each
appellant.

Fagan v MPC [1969]

Where the actus reus of an offence can consist of a continuing act then, provided the
defendant had the mens rea for the offence at some time during its continuance, there
will be coincidence of actus reus and mens rea

Negligence definition

unaware of the risk in question but ought to have been
aware of it or having foreseen it he does take steps to avoid it but those steps fall below objective standard of conduct

Adomako [1995] : conclusion for negligence.

ordinary principles of negligence applied for ascertainment
of whether D had been in breach of a duty of care towards a victim who
had died. Where a breach of duty was established, it had to be determined whether that breach had caused the death of the victim. If it had then if the jury found - having regard to the extent to which the defendant's conduct from objective standard of care and of the risk of death - that the breach of duty should be characterised as gross negligence=>convict of MS

R v Pembliton what is definition of malicious

Thus the court interpreted 'maliciously' as requiring proof of intention, but were
inclined to accept that intention could be shown by proof of reckless disregard of a perceived risk.

What is malice

(1) An actual intention to do the particular kind of harm that in fact was done; or (2) 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 of it). It is neither limited to nor does it indeed require any ill will towards 'the person injured.

Thabo Meli facts:

The appellants, in execution of a preconceived plot to kill the deceased, took him to a hut where he was struck over the head with an instrument, and then, believing him to be dead, they took him out and rolled him over a low cliff and dressed the scene to make it look like an accident

Thabo Meli reason for appeal

t while the first act — the blows in the hut — was accompanied by MR, it was not the cause of death, but that the second act, while it was the cause of death, no MR so they were not guilty of any crime

Thabo Meli result

impossible to divide up what was really one transaction in that way. The appellants set out to do all those acts as part of, and to achieve, their plan, and it was much too refined a ground of judgment to say that, because they were under a misapprehension at one stage and thought that their guilty purpose had been achieved before it in fact was, therefore they were not guilty of murder.

Church 1966 fats of case

A was convicted of manslaughter of V. He had had a fight with her, thought he had killed her, and threw her in the river. The jury had been directed that on the question of manslaughter it was irrelevant that A thought V was dead when he threw her in the river.

Church result

Held, on appeal, that it was relevant and the jury had been misdirected, but the course of A's conduct could rightly, in relation to manslaughter as to murder, be viewed as a series of acts culminating in V's death, and, on that basis, it did not matter in the present case whether A believed her to be alive or dead at the time of the immersion.

In Sweet v Parsley [1970], MR presumption

mens rea is an essential ingredient of every offence unless some reason can be found for holding that that is not necessary.' He also said: '[I]t is a universal principle that if a penal provision is reasonably capable
of two interpretations, that interpretation which is most favourable to the accused must be adopted.'

Muhammed [2002] presumption of MR

CA rejected the submission
that, in order to be compatible with Article 7 of the ECHR, a provision had to be read so as to import a requirement of mens rea. Contracting states were permitted, under certain circumstances, to enact offences of strict liability.

R v g 2008: ECHR sec 6 right to fair trial

The House unanimously held that the Article was concerned with the procedural fairness of a trial and not with the substantive law. It is a matter for the domestic legislatures to define the ingredients of offences. The Article is concerned with matter such as the burden of proof in respect of the elements of the offences but not the content.

R v K [2001] presumption of innocence

The House ruled that there was nothing in the section which clearly indicated the displacement of the presumption of mens rea

Howells [1977] the Court of Appeal FireArms Act

possession of a firearm contrary to s.1 of the Firearms Act 1968 was a strict liability offence by pointing out that the danger to society posed by the possession of lethal
firearms was so obviously great that an absolute prohibition on possession must have been the intention of Parliament.

What can the court consider when statue is silent on MR

-the statutory context within which the section or sections to be interpreted lie
-the social context of the offence
-the seriousness of the offence
- the severity of punishment.

What is Caldwell recklessness

a defendant could be reckless despite not having
foreseen the risk, provided that the risk was an obvious one.

Cunningham recklessness (subjective test)

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 of it).

types of crimes which do not require mens rea

negligence or those of strict liability

Chandler v DPP [1964]
compare Cox euthanasia

motive is irrelevant
the defendant was against the use of nuclear weapons and had been involved in a 'sit in' at a military base with the purpose of preventing aircraft containing such missiles from taking off. He was charged with breaking into a prohibited place with an intention prejudicial to the safety and interests of the State but argued that he did not have the appropriate mens rea for this offence. He claimed his purpose was to save the State from the dangers of nuclear weapons The House of Lords established that the defendant's motive was irrelevant. The immediate intention of the offender was to break into the airfield and cause an obstruction

basic intent,specific, ulterior
strict liability

strict= no mens rea
basic intent=can be done by recklessness=aware of risk (R v G 2004)
specific requires mens rea=intent murder Moloney [1985]
ulterior= e.g. burglary

Criminal Damage Act MR
compare Theft

'intention' or 'recklessness'.=> basic intent, result crime, requires damage
theft: specific intent MR=dishonesty , intention

R v Nedrick 1986 virtual certainty test
refines Moloney

he defendant poured paraffin oil through the letterbox of a house, against whose owner he had a grudge. The house was set alight resulting in a child being killed. The case is important as it established the "virtual certainty test" becoming the key test on indirect (oblique) intention. The court said that there may be no case where intention to offend is inferred, unless the actions of the defendant are so dangerous, that death or serious injury is a virtual certainty.

Woollin, R v [1998] HL
D lost his temper with his three-month-old son and threw the child onto a hard surface, causing head injuries from which the child died.

Held: same as the Nedrick test EXCEPT that on the first trial their was a misdirection. HL confirms that substantial risk is not sufficient for intent, virtual certainty is correct.

Moloney [1985] test for intention
D and V (D's stepfather of whom D was very fond) had a contest as to loading and firing a shotgun. D a serving soldier shot V without aiming. V taunted D to fire the gun. Incident occurred during a late night of drinking.

was sufficient for the judge to tell the jury that they must be satisfied that the defendant intended, in the ordinary meaning of the word, to kill or cause GBH.
if oblique intent=> guidelines to jury
Foresight was merely evidence of, but was not to be equated, with intent.
TESTS
1 was death or really serious injury in a murder case (or whatever relevant consequence must be proved to have been intended in any other case) a natural consequence of the defendant's voluntary act?
2 did D foresee that consequence as being a natural consequence of his act?

Recklessness

A person is reckless if, knowing that there is a risk that a consequence may result from his conduct, or that a relevant circumstance may exist, he takes that risk and it is unreasonable for him to do so having regard to the degree and nature of the risk which he knows to be present. This is deliberate conscious risk taking, based on what the defendant himself foresaw. Lack of foresight of the risk entitles the defendant to an acquittal.

Caldwell recklesness

include a defendant who had not given any thought to the possibility of there being an obvious risk of damage to property. Therefore, following Caldwell a defendant could be reckless despite not having foreseen the risk, provided that the risk was an obvious one. overrules in R v G

R v Stephenson [1979] schizophrenic
lit a fire inside the hollow to keep himself warm. Inevitably the whole haystack caught fire and he ran off and was picked up by the police. The defendant contended that he never thought of the possibility of a the whole stack catching fire.

Defendant's conviction was quashed. The direction was a misdirection. The test should be entirely subjective, if the defendant did not foresee a risk of damage he should not be liable.

R v G
went camping without their parents approval. They went to the back of the Co-op in Newport Pagnell, lit some newspapers which set fire to a wheelie-bin which set fire to the shop, cause £1m of damage. They were convicted of arson

held caldwell overruled
The test now is:

"A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to -
(i) a circumstance when he is aware of a risk that it exists or will exist;
(ii) a result when he is aware of a risk that it will occur;
and it is, in the circumstances known to him, unreasonable to take the risk."

Thabo Meli v The Queen [1954]
D and accomplices took V to a hut and beat him over the head intending to kill him. They rolled his body over a cliff to make the death appear accidental. In fact, the victim survived both the beating and the fall from the cliff, but died from exposure shortly afterwards.

Actus and mens were present throughout; no need to separate them, there was a causal link. Where the actus reus consists of a series of linked acts, it is enough that the mens rea existed at some time during that series, even if not necessarily at the time of the particular act which caused the death.

Le Brun [1991]
compare Thabo Meli (Privy Council), Church
there was no antecedent plan and neither was there a belief on the part of the defendant that he was disposing of a corpse. Le Brun had an argument with his wife in the street, during which he knocked her unconscious. He dragged her from the street - either to drag her home or to conceal what he had done. Whilst being dragged she struck her head on the pavement and died.

upheld Le Brun's conviction for murder. The court noted that the death in this case was not the result of a preconceived plan which went wrong as had been the case in Thabo Meli. Lord Lane CJ posed the question: Normally the actus reus and mens rea coincide in point of time.
where the unlawful application of force and the eventual act causing death are parts of the same sequence of events, the same transaction, the fact that there is an appreciable interval of time between the two does not serve to exonerate the defendant from liability.

R v R (Stephen Malcolm) recklessness
after Caldwell
D aged 15 caused criminal damage with intent to endanger life when he threw a petrol bomb near a girl"s bedroom window, not realising it might kill the girl if it went inside.

he proper test of recklessness - in Criminal Damage cases - does not include a risk obvious to "someone of his age and with such of his characteristics as would affect his appreciation of the risk"..
In other words, the test is not the subjective [Cunningham] test of recklessness but the objective [Caldwell] test.

Guilty

Church [1966]
no pre-arranged plan as there had been in Thabo Meli. During an argument the appellant hit and attempted to strangle a woman, who fell unconscious. The appellant panicked and, having given her only a cursory examination, thought she was dead so he threw her into a river where she drowned.

His conviction was upheld by the Court of Criminal Appeal. The court extended the 'series of acts' principle in Thabo Meli to a case of manslaughter where there was no antecedent plan. The judge should have directed the jury that they were entitled to regard the conduct of the appellant in relation to the death of the victim as constituting throughout a series of acts which culminated in her death.

Airedale N.H.S. Trust v Blland 1993
Tony Bland was a young supporter of Liverpool F.C. who was caught in the Hillsborough crush which reduced him to a persistent vegetative state. He had been in this state for three years and was being kept alive on life support machines. His brain stem was still functioning, which controlled his heartbeat, breathing and digestion, so technically he was still alive. However, he was not conscious and had no hope of recovery. The hospital with the consent of his parents applied for a declaration that it might lawfully discontinue all life-sustaining treatment and medical support measures designed to keep him alive in that state, including the termination of ventilation, nutrition and hydration by artificial means.

The declaration was granted.


The court recognised there was the intention was to cause death. Lord goff stated to actively to bring a patient's life to an end is:-
"to cross the Rubicon which runs between on the one hand the care of the living patient and on the other hand euthanasia - actively causing his death to avoid or to end his suffering. Euthanasia is not lawful at common law": per Lord Goff at p. 865 F.

Withdrawal of treatment was, however, properly to be characterised as an omission. An omission to act would nonetheless be culpable if there was a duty to act. There was no duty to treat if treatment was not in the best interests of the patient. Since there was no prospect of the treatment improving his condition the treatment was futile and there was no interest for Tony Bland in continuing the process of artificially feeding him upon which the prolongation of his life depends.

Transferred malice

It is common knowledge that a man who has an unlawful and malicious intent against
another, and in attempting to carry it out, injures a third person, is guilty of what the law
deems malice against the person injured, because the offender is doing an unlawful act,
and has that which the judges call general malice, and that is enough.
' will not be transferred where the actus reus achieved is not that which was
intended. The actus reus and mens rea must coincide

A shoots at B intending
to kill B but misses his target, but the bullet breaks a window

A will not be guilty of criminal damage by virtue of the doctrine of transferred malice

R v Pembliton (1874)

D threw a large stone at some people he missed and broke a window instead. He was found guilty of criminal damage but on appeal his conviction was quashed. The appeal court held that since there was no mens rea for criminal damage, and the actual mens rea was for a completely different offence, it could not be transferred to make him liable.

R v Latimer (1886)

D aimed a blow at someone with his belt. The belt recoiled off that person and hit the victim who was severely injured. The court held that D was liable for maliciously wounding the un-expected victim as his malice i.e. mens rea was transferred from his intended victim to his unintended victim.

Attorney General's Reference (No. 3 of 1994) [1997]
defendant had stabbed a pregnant woman in the abdomen. The woman recovered and no injury to the foetus was detected at the time. The child, however, was delivered prematurely and died within a few days of complications arising out of the premature birth.

House ruled that it could not as it would require a double transfer of malice - i.e. from the mother to the foetus and from the foetus to the child. A conviction for manslaughter by unlawful and dangerous act could, however, lie

Negligence

A person is negligent if he is unaware of the risk in question but ought to have been aware of it or having foreseen it he does take steps to avoid it but those steps fall below the standard of conduct which would be expected of a reasonable person.

Negligence offences

Sexual Offences Act 2003 : has imported an objective element into rape and other sexual offences in that a person must have a reasonable belief that the other is consenting
Gross negligence manslaughter: Adomako [1995] 1 AC 171 disapproving Seymour [1983] 2 AC 493 and approving Bateman
[1925]

Gross negligence manslaughter: Adomako [1995] : 2 conditions

1. there was a duty
2. breach of duty established
3. caused death
4. jury must decide if D departs from proper standard of care and of the risk of death=> Gross negligence manslaughter

negligence cases

Adomako disapproves Seymour, approves Bateman
Willoughby 2004
Evand (Gemma) 2009

Strict liability

neither mens rea nor negligence required
must be voluntary.
R v Lemon and Gay News Ltd [1979]
G [2006]

R v Lemon and Gay News Ltd [1979]
with the offence of blasphemous libel. The particulars of the offence alleged that they unlawfully and wickedly published or caused to be published a blasphemous libel concerning the Christian religion, namely 'an obscene poem and illustration vilifying Christ in His life and in His crucifixion'. The trial judge directed the jury that they could convict the defendants if they took the view that the publication vilified Christ and that it was not necessary for the Crown to prove an intention other than an intention to publish that which in the jury's view was a blasphemous libel.

R v Lemon and Gay News Ltd [1979]
held (3-2) that in order to secure a conviction for the offence of publishing a blasphemous libel it was sufficient, for the purpose of establishing mens rea, for the prosecution to prove an intention to publish material which was in fact blasphemous and it was not necessary for them to prove further that the defendants intended to blaspheme.

R v K [2001]
, a 26 year old man, was charged under s.14(1) Sexual Offences Act 1956 with indecent assault on a girl of 14. His defence was that the sexual activity was consensual and that she had told him she was 16 and that he had had no reason to disbelieve her. The trial judge ruled that the prosecution had to prove an absence of genuine belief that the victim was aged 16 or over. In so ruling the judge relied on the decision of the House of Lords in B (A Minor) v Director of Public Prosecutions [2000] 2 AC 428. The prosecution appealed against that ruling. The Court of Appeal allowed the appeal and held that such absence of genuine belief did not have to be proved. The Court of Appeal certified the following points of law of general public importance:
"(a) Is a defendant entitled to be acquitted of the offence of indecent assault on a complainant under the age of 16 years, contrary to section 14(1) of the Sexual Offences Act 1956, if he may hold an honest belief that the complainant in question was aged 16 years or over?
(b) If yes, must the belief be held on reasonable grounds?"

A defendant is entitled to be acquitted of sexual assault under s.14(1) if he has an honest belief that the girl was over 16. There is no requirement that the defendant had reasonable grounds for his belief. Affirmed the principle established in B v DPP that R v Prince did not set any rule relating to age related crimes and even if it had, it had not survived the ruling in Sweet v Parsley that there exists a presumption of mens rea.

Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1985]
P was a builder who had deviated from plans in the construction of a building. It was an offence to deviate from the plans in a substantial way. The appellant accepted he had deviated from the plans but he believed that the deviation was only minor rather than substantial.

The offence was one of strict liability and therefore his belief was irrelevant and his conviction upheld.
There is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence.
b. The presumption is particularly strong where the offence is 'truly criminal' in character.
c. The presumption applies to statutory offences, and can be displaced only if it is clearly or by necessary implication the effect of the statute.
d. The only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern; public safety is such an issue.
e. Even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.

Cundy v Le Cocq (1884)

Divisional Court of the Queen's Bench upheld the defendant's conviction for selling intoxicating liquor to a person who was drunk. The defendant, who neither knew of nor was negligent as to the customer's drunkenness had been convicted under s.13 of the Licensing Act 1872 which did not import any specific requirement of mens rea. Because other sections of the statute used the word 'knowingly' while s.13 did not, the court came to the conclusion that it had been Parliament's intention to create an offence of strict liability.

Pharmaceutical Society of Great Britain v Storkwain
[1986]

charged under s58(2) of the Medicines Act 1968 which states that no one shall supply certain drugs without a prescription. The defendant had supplied drugs on prescription, but the prescriptions were later found to be forged. It was held that the defendant had not acted dishonestly, improperly or even negligently as the forgery was sufficient to deceive the pharmacist. Despite this the House of Lords decided that the defendant's conviction should stand. The pharmacist had supplied the drugs without a genuine prescription and this was enough to make them guilty of the offence.

R v K [2001]
charged under s.14 of the Sexual Offences Act 1956 for assault on minor without consent

rejected the prosecution's argument that, because other subsections of the section under which the defendant had been charged specified an exonerating mental element, Parliament, in not including those elements in the relevant subjection, must have intended not to include them. The House ruled that there was nothing in the section which clearly indicated the displacement of the presumption of mens rea.†

Sherras v de Rutzen [1895],

in order to give effect to the intention of Parliament, it was important firstly, to consider the actual words used in the statute and secondly, to consider the subject matter of the provision. Extrinsic factors should only be considered where Parliament's intention was not clear from the statute.
e.g.: Cundy v Le Cocq: purpose was repression of drunkenness
Storkwain [1986] prevent, illicit drugs from reaching the market.

R v Prince (1875) : strict liability

D ran off with an under-age girl. He was charged with an offence of taking a girl under the age of 16 out of the possession of her parents contrary to s55 of the Offences Against the Person Act 1861 (now s20 of the Sexual Offences Act 1956). The defendant knew that the girl was in the custody of her father but he believed on reasonable grounds that the girl was aged 18. It was held that knowledge that the girl was under the age of 16 was not required in order to establish the offence. It was sufficient to show that the defendant intended to take the girl out of the possession of her father.

Alphacell Ltd v Woodward [1972]
charged with causing polluted matter to enter a river contrary to s2 of the Rivers (Prevention of Pollution) Act 1951. The river had in fact been polluted because a pipe connected to the defendant's factory had been blocked, and the defendants had not been negligent

HL D liable. Lord Salmon stated: If this appeal succeeded and it were held to be the law that no conviction be obtained under the 1951 Act unless the prosecution could discharge the often impossible onus of proving that the pollution was caused intentionally or negligently, a great deal of pollution would go unpunished

Howells [1977]

justified its decision that unlawful possession of a firearm contrary to s.1 of the Firearms Act 1968 was a strict liability offence by pointing out that the danger to society posed by the possession of lethal firearms was so obviously great that an absolute prohibition on possession must have been the intention of Parliament.

presumption of mens rea

not enough that the offence is one of grave social concern, such as public safety. It must also be shown that strict liability would promote the objects of the statute by, for example, encouraging greater vigilance.

Lim Chin Aik v R [1963]

D had been convicted under the immigration laws of Singapore by remaining there (after entry) when he had been prohibited of entering. The aim of the law was to prevent illegal immigration. The defendant had no knowledge of the prohibition order and there was no evidence that the authorities had attempted to bring the prohibition order to his notice. Therefore the Privy Council ordered that the offence was not one of strict liability because it did nothing to promote enforcement of the law.

Arguments in Favour of Strict Liability

It protects society by promoting greater care over maters of public safety and encouraging higher standards in such matters as food hygiene
Its easier to enforce as there is no need to prove mens rea
It saves court time as people are more likely to prove guilty when they realise there is no need for a guilty mind to be established by the prosecution
Parliament can provide an appropriate defence where this is deemed to be necessary
Lack of blame on the part of the defendant can be taken into consideration by the judge when sentencing

Arguments Against Strict Liability

Liability should not be imposed on people who are not blameworthy
Those that have taken all possible steps to prevent the offence being committed should not be prosecuted
There is no evidence that it promotes higher standards
The lack of a requirement for mens rea goes against the principles of human rights

he surest test of a new legal rule is not whether it satisfies a team of logicians but how it performs in the real world. With the benefit of hindsight the verdict must be that the rule laid down by the majority in Caldwell failed this test... Experience suggests that in Caldwell the law took a wrong turn.' Lord Steyn in R v G [2004]

introduction should set out the ambit of your essay. You should explain that 'recklessness', which is the mens rea for a number of basic intent crimes, is the taking of an unjustifiable risk. For a number of years, following the House of Lords' ruling in Caldwell [1982] a different test of recklessness was applied to the offence of criminal damage to that applied to other offences of recklessness.
Set out briefly the Caldwell test for recklessness and explain what changes the House of Lords made in R v G. Note that the issue in the question arises in relation to the second limb of the Caldwell test. The Caldwell test attracted much criticism during the 21 years in which it represented the law. Nonetheless, it also had its supporters who would not agree with Lord Steyn that the law 'took a wrong turn'. You should now critically analyse the arguments which have been made both for and against the appropriateness of the Caldwell test for recklessness, some of which are set out briefly below. (You might now re-read Lord Bingham's speech from R v G, which is in your study pack, where all of these arguments are considered in more detail.) At the same time, consider and, where appropriate, address Lord Steyn's comments about the test of a legal rule in the context of 'logicians' and 'the real world'. Consider the fairness or otherwise of the test in the particular context of the cases of Elliott v C [1983], R v Stephen (Malcolm R) [1984] and the facts of the case of R v G itself. Arguments for and against the Caldwell test for recklessness The evolution of the Criminal Damage Act 1971: Did the House of Lords in Caldwell merely misconstrue s.1 of that Act? Consider the Law Commission Working Paper where the decision in Cunningham [1957] was cited with approval. Lord Diplock said in Caldwell that he was simply applying the natural dictionary meaning of the word 'reckless' which imports the state of mind of carelessness '...regardless or heedless of the possible harmful consequences of one's acts'. Inadvertence/advertence: Lord Diplock in Caldwell was of the view that blameworthiness in relation to conduct should not be limited to those situations where a defendant realises that a prohibited consequence could occur. He thought that inadvertence was as blameworthy as advertence. What were his reasons for this? In Caldwell, the House of Lords was considering the mental element of a person who was intoxicated and claimed he did not foresee a risk of endangerment to life as the result of his criminal damage. What, however, of the person who either lacks the capacity to foresee a risk or for reasons which are not, in themselves, blameworthy fails to appreciate such a risk? Consider the cases of Elliott, Stephen (Malcolm R) and G. Is it fair that people should be deemed to be blameworthy because of inadequacies over which they have no control? Consider the pre-Caldwell decision in the case of Stephenson [1979]. Alternatively, could it be argued that one of the functions of the law is setting standards of behaviour and protecting the public and that these aims should take precedence over the blameworthiness of an individual? The modern development of mens rea tends towards a subjective assessment of a defendant's state of mind but the 'objective' element of Caldwell recklessness does not reflect the state of mind of the defendant who has given no thought to a risk. Lord Diplock expressed the view that the application of 'subjective' recklessness may not always be practicable as it requires a meticulous analysis of a defendant's state of mind and could make it difficult for a jury to be sure of a defendant's guilty beyond reasonable doubt. Nevertheless, despite the need for a 'meticulous analysis' of a defendant's state of mind for other offences of recklessness and, indeed, for crimes requiring proof of intention there is no evidence that juries have particular difficulties with 'subjective' tests resulting in significant numbers of unjust acquittals. There was considerable 'shopfloor' criticism of the decision in Caldwell which Lord Bingham thought should not be ignored. Why should academic and judicial criticism influence the House of Lords? Deal directly with the issue raised in the question, supporting your conclusion with some of the arguments outlined in your essay.

2 parts of Caldwell recklessness

A person is reckless as to whether property is destroyed or damaged where:
(1) he does an act which in fact creates an obvious risk that property will be destroyed or damaged and
(2) when he does the 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 has nonetheless gone on to do it.

R v G facts
oys, aged 11 and 12 years, were camping without their parents' permission when they entered the back yard of a shop in the early hours of the morning, Lighting some newspapers they found in the yard, they left, with the papers still burning. The newspapers set fire to nearby rubbish bins standing against the shop wall, where it spread up the wall and on to the roof of the shop. Approximately £1m damage was caused. The children argued they expected the fire to burn itself out and said they gave no thought to the risk of its spreading.

need to modify Lord Diplock's definition to take account of the defence of infancy, which contains the concept of "mischievous discretion". This rule requires the court to consider the extent to which children of eight or more years are able to understand the difference between "right" and "wrong". The Diplock test of obviousness might operate unfairly for 11- and 12-year-old boys if they were held to the same standard as reasonable adults. Bingham stated that a person acts 'recklessly' with respect to:
(i) a circumstance when he is aware of a risk that it exists or will exist;
(ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk."

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