1. Why did the House of Lords in R v G [2003] hold that a defendant who lacks capacity for foresight of a risk is not reckless for the purpose of s1 Criminal Damage Act 1971?
The mental state of a person before and during the commission of an act determines the guilt of a person. Guilt may be supported by the mental state of doing an action purposely, knowingly, recklessly or negligently. The presence of any or the consistent combination of these mental states determines the guilt and the corresponding sentence accruing to guilt. In criminal prosecutions, there are generally three elements that should exist, which are a conduct or action, the circumstances surrounding the action, and the result of the action. However, there are a number of offenses without result elements.
Purposive action is considered as constituting the highest degree of culpability because the intended result is the consequence of the performance of a specific action. Although motive is not relevant to prosecute a person in criminal law, motive may help to support the facts of case and prove the intention of the person to commit an action in order to achieve a particular result.[1] Thus, a person who shots another person to death is deemed to have acted purposively if there is a reason or motive for doing so and the witnesses testified seeing the person in the places that the other person frequent.
Another mental state for culpability is acting knowingly, which requires the presence of a conscious objective to cause a result. The person knows that performing the specific action will cause the expected result but there is a hope that it may not. Purposive action involves a conscious desire to achieve the expected result as opposed to knowing action that involves a near certainty of achieving the result.[2] A person who plants a bomb in a car to kill a person knows that other people riding in the same care will die too but there is that hope that the person will be driving alone. Even deliberate blindness to the inevitable consequence of an action is considered as acting knowingly[3].
Another mental state for culpability is negligence. There is negligence if a person committing an action is not aware of the substantial risks of the action when that person should be aware. Negligent act is the failure to identify and foresee a risk involved in an action when there should be awareness of such risks. Negligent action covers the omission as well as the commission of an action.[4]
Reckless action covers another mental state for culpability. An action is deemed committed recklessly if the person is only aware of substantial risks that would cause a particular result. Recklessness is defined as involving awareness of substantial risk as opposed to practically certain risk. There is also no desire to achieve a result to actualize the risks.[5]
The mental state of acting recklessly is the primary issue raised to the House of Lords in the case[6] of minor children who lit newspapers in a wheelie-bin leaving the fire burning resulting to the burning of the entire building. At the trial court, the children were found guilty of destroying and damaging property under section 1(1) of the Criminal Damage Act 1971[7] because of their reckless action. In the case, the court considered reckless in the context of the case as based on whether a reasonable person could have perceived the risks involved in leaving burning newspapers in a plastic wheelie-bin. Since a reasonable adult could have perceived the risks involved in leaving a burning fire inside a property then the defendants were pronounced guilty under the Criminal Damage Act 1971. However, the judge gave the opinion that there is a sense of injustice in the decision even if it was made in consideration of the jurisprudential construction of reckless. The House of Lords sought to address the issue[8] and after deliberations overturned the conviction of the defendants. The House of Lords ruled that a person who does not have the capacity to perceive risk cannot be considered as acting recklessly.
The House of Lords ruled that reckless as used on section 1(1) of the Criminal Damage Act 1971 exists in circumstances where the person “is aware of a risk that it exists or will exist;” or “is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk”[9]. This means that the person should have the capacity to perceive risk if a person is to become aware of the risk. This then involves the consideration by the court of the capacity of the defendants to perceive risk and thus to be deemed as capable of being aware of the risk. Based on the circumstances of the case, the defendants were children aged 11 and 12 and left the fire burning on the thought that it would die out after the newspapers have been extinguished. There was no perception of any risk involved in leaving the burning fire so that there was no awareness of the risk. The conclusion then is that the defendants did not act recklessly.
There was a deviation from the ruling case of R v Caldwell[10] because of the failure of the ruling to pass the test of a legal rule because it does not reasonably apply in actual circumstances[11]. This is because the ruling in Caldwell requires the objective consideration of whether a reasonable person could have perceived the risk. A reasonable person refers to an adult. This application creates injustice because what is being considered is the objective standard of reasonable action and not the subjective circumstances of the defendants and the standard of reasonableness is that of an adult that precludes the state of mind of people who are not adults.
In the given case, the House of Lords allowed a deviation from the ruling case because justice would be achieved only if the subjective mental state of the defendants were to be considered. According to the facts of the case, the children had did not perceive a risk in their action making them unaware of such risks. The test of comparing the perception and awareness of a reasonable person to that of the defendants cannot lie because an adult cannot be reasonably compared to a child. Reckless action as a basis for culpability requires the consideration of the state of mind of the defendants. To do this the mental state of the defendants during the commission of the act should be determined subjectively. The law in question requires the ability of perception and awareness of risk of the defendant to become culpable. In the case, the defendants neither had the ability to perceive or become aware of the risk.
Semester A 2005/6
[word count: 1097)
2. Ezra was a member of an extreme political organisation. He made a telephone call to a police station in which he stated that he had placed a bomb in Central Train Station and it would be detonated in two hours time. Bill, an explosives expert, was sent by the army to defuse the bomb but it exploded one hour early and he was killed. A passer-by named Claude was injured by the explosion. He was found by an ambulance worker, Darren, but because it was time for Darren to go of duty, he failed to assist Claude with the result that Claude's injuries deteriorated. He was eventually taken to hospital where he refused a potentially life-saving blood transfusion owing to his religious principles. After one week whilst his wounds were healing Claude re-opened his scars with a scalpel, jumped from the third floor window of the hospital and was killed. Ezra stated upon arrest that his intention had only been to frighten the authorities and damage the train station.
Discuss the liability of Ezra and Darren for the deaths of Bill and Claude. What difference would it make, if any, if Ezra also revealed that he had an irresistible impulse to kill?
Ezra is liable for committing acts of terrorism. Section 1 of the Terrorism Act 2000 provides the elements of terrorism. There is a threat or use of action to threaten or influence the public or government or to advance a political, religious or ideological cause. Terrorism is defined by the existence of several elements[12]. There is terrorism if the action involves using firearms or explosives[13]. A terrorist act involves an action against the UK government in behalf or for the interest of a proscribed organization[14].
The prosecution may consider Ezra’s action as acts of terrorism because placement of explosives in a public place was intended to threaten the authorities. There was also loss of life and damage to property resulting from the action. The action was against the UK government in behalf of Ezra’s organization, which is assumed to be proscribed since the organization is described as extremist or radical. On the part of prosecution, there is culpability because the defendant had the intention to threaten authorities and actualized this threat by the acts rues of planting a bomb in the Central Train Station threatening the lives of passengers and the destruction of public property. The defendant also had the ability to perceive and be aware of the risks due to his state of mind. In his own words, Ezra admitted that he has an irresistible impulse to kill and planting a bomb in a public place is one way of killing. Ezra may provide the defense that he warned the police about the bomb giving them enough time to find and defuse the bomb.
The defendant may claim that there was no intention to harm people or cause damage property. However, under the Terrorism Act 2000, terrorism involves a threat or use of action that creates a serious risk on the health and life of people or cause serious violence against a person or serious damage to property. Even if Ezra intended for the police to find and detonate the bomb, placing the bomb in a public place created the risk to the health and lives of people and risk of damaging property. The perception and awareness of these risks makes his actions knowing acts. Thus, Ezra has committed acts of terrorism under the Terrorism Act 2000.
The terrorist acts committed by Ezra are punishable under existing penal laws. Ezra’s action resulted to the death of one person and injury to another person. Ezra is liable for murder for the death of Bill and serious injuries to Claude. Lord Chief Justice Coke proposed the definition “Murder is when a man of sound memory, and of the age of discretion, unlawfully killed within any country of the realm any reasonable creature in rerun natural under the king’s peace, with malice aforethought, either expressed by the party or implied by law, so as the party wounded, or hurt die of the wound or hurt within a year and a day after the same.”[15] Based on this definition, murder involves the elements of intention to kill or to cause serious bodily harm to any person or intention to do an act with knowledge that it would probably kill or cause serious bodily harm to another person.
In the given case, the prosecution is able to prove intention by considering the state of mind of the defendant. There was a voluntary admission by Ezra that he had an irresistible impulse to kill. In this context coupled with the act of placing a bomb, the defendant had the intention to kill or cause serious bodily harm. The defendant may forward the defense that there was no intention to kill because he willingly called the police to inform them of the bomb and sufficient time left to defuse the bomb. This belies the claim that there was intention to kill or cause serious bodily harm. Upon application of the law, there is no intention to kill or to cause serious injury based on the action of Ezra of informing the police about the bomb. However, the ability of Ezra to perceive the risk that the police may not be able to defuse the bomb and his irresistible impulse to kill calls for murder. Moreover, even if intent is not sufficiently proven Ezra will still be liable for manslaughter.
Apart from the commission of the terrorist act of killing and causing serious injury to another person, the defendant is also liable for damage to property under the Criminal Damage Act 1971. Under this law, section 1 provides for destruction or damage to property and section 2 covers the threat to destroy or damage property. Under section 1, the elements of the offense are the intentional or reckless destruction of property or damage or recklessness to endanger the life of another without lawful cause. The prosecution may present evidence to prove the intention of the defendant to destroy property by placing a bomb in the Central Train Station there being no absolute assurance that the bomb will be defused within two hours. Intention may also be deduced from the fact that the bomb detonated after an hour instead of the two hours that Ezra told the police. The defendant may claim that there was no intention to destroy property or cause damage to endanger lives because the police were informed of the bomb and there was intention to have the police find and defuse the bomb. According to the law, culpability exists by reason of purposive, knowing or reckless action. No matter the defense that Ezra may pose, he is still liable for damage to property due to purposive action by the acts rues of placing a bomb in the Central Train Station or by knowing action by placing the bomb in a public place knowing its risks but hoping that the police would defuse it on time or reckless action by placing the bomb in a public place perceiving the substantial risk that it will not be found or defused on time. The extent of liability and penalty of the defendant for damage to property depends upon proof of means read.
In the case of Darren, he is liable under tort law for failure to comply with his duty to give aid to a person injured by an explosion since he is an ambulance worker when the reason for the failure is that he is already off-duty. The duty to rescue covers two general scenarios, one is when a person caused a situation that injures another then the person has the duty to rescue the other person and another the existence of a relationship providing for the duty to rescues such as police officers, firefighters and medical workers. In the second case, the duty to rescue is determined is covered by the scope of their employment. Their expertise in the different forms of emergency vests upon them a greater responsibility to perform their duties diligently. In the case of medical workers, they have the duty to give aid to injured people because they are the experts in that field. The duty lies even without a contract because of the neighbor principle.[16]
Negligence is defined through the elements of the existence of a duty, breach of the duty, the causation relation between the breach of duty and the damage, the resulting damage. In the given case, Darren had the duty to provide medical care but unreasonably refused to comply with this duty resulting to the deterioration of the condition of Claude but not for the death of Claude there being intervening factors. Darren is expected to act reasonably[17] especially since he is aware of the risks of lack of medical care for injuries. Based on this, Darren is liable for negligence under tort law because of the breach of his duty to rescue.
[1] (2001). Criminal Law. Maryland: Aspen Publishers, Inc.
[2] Ibid.
[3] United States v. Jewell [1976] 532 F.2d 697 (9th Cir. 1976)
[4] (2001). Criminal Law. Maryland: Aspen Publishers, Inc.
[5] Ibid.
[6] and Another [2003] KUHN 50
[7] “1. (1) A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.”
[8] “Can a defendant properly be convicted under section 1 of the Criminal Damage Act 1971 on the basis that 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?”
[9] and Another [2003] KUHN 50, paragraph 41
[10] [1982] AC 341, 358
[11] and Another [2003] KUHN 50, paragraph 57
[12] “(a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person’s life, other than that of the person committing the action, (d) creates a serious risk to the health or safety of the public or a section of the public, ore) is designed seriously to interfere with or seriously to disrupt an electronic system.” (Terrorism Act 2000, Section 1(2)
[13] Terrorism Act 2000, Section 1(3)
[14] Terrorism Act 2000, Section 1(4)
[15] (2004). ‘Murder as an Offence under English Law’. Journal of Criminal Law, 68(4), 315-328.
[16] Donohue (or McAlister) v. Stevenson [1932] O.C. 532, 1932 S.C. (H.L.) 31, [1932] All ER Rep 1
[17] [1951] O.C. 850, [1951] 1 All E.G. 1078 (H.L.)
Credit:ivythesis.typepad.com
0 comments:
Post a Comment