The rule is that where one is aware of the gang's nature and puts himself in a position where he could be threatened, duress is not a defence - joining a gang that carries out armed robberies probably precludes any duress defence but joining a gang that is not violent at the time of joining may not. In Byrne, the defendant had an impulse and intention to commit murder despite his sadistic psychopath behaviour. When the actus reus, and mens rea of a crime exists — an act is an action that have caused harm to a person, or damage to property, while an omission is where an action that could have reduced or prevented the harm or damage is not taken when the person in under a duty. She was convicted of criminal damage. This finding is in conflict.
As the Woollin case is not a rule of law and did not define intention it does not necessary need to be followed, yet if there was a codified meaning of intention then juries and judges could follow it may see the end to confusion the law has caused. While the law may be indeed flexible and open to consideration, it must also not be too flexible. The wound penetrated the uterus and the abdomen of the foetus but when the girlfriend was admitted to hospital it was not realised that the foetus had been injured and treatment was limited to care of her wounds. If a defendant has foresight of death or serious injury the jury may, but is not bound to, find the requisite mens rea. Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to find the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty barring some unforeseen intervention as a result of the defendant's action and that the defendant appreciated that such was the case.
The idea of having a statutory definition of intention would create a less flexible law, which would struggle to consider personal factors. This can be supported in the argument that there is a need for reform in regard to the definition of intention. Punishing Criminals: Concerning a Very Old and Painful Question. In the through Lord Lane summarised the law as follows:. Substantial risk means the act of the defendant made a strong and significant cause to the death of the victim. A duty which arises because the D has set a chain of events in motion R v Miller 1983 - D was squatting, slept with a cigarette, set fire to mattress.
Provide a rationale to support your position. In a soldier in shouted at a car approaching a checkpoint to halt. As the boundaries between murder and manslaughter are grey, this freedom is essential. These actions were foreseeable, creating liability for injuries. The following examples illustrate this. In it was held that to allow the defence of duress as a defence to murder would, in the words of Lord Hailsham, withdraw the protection of the criminal law from the innocent victim and cast the cloak of its protection upon the coward and the poltroon - ordinary people ought to be prepared to give up their lives to the person making the threat in preference to killing an innocent. Key principle From 1981-2003, objective recklessness was applied to many offences, but the tide has turned and now since G and R the Caldwell test for recklessness should no longer be followed.
Nonetheless the boys were convicted and the Court of Appeal, basing itself on Caldwell, affirmed the conviction because the boys gave no thought to a risk of damaging the buildings which would have been obvious to any reasonable adult. In March 2011, there were more than ten thousand offences excluding those created by. In other words, intention could be the worst culpability in mens rea. One important reform, introduced in England and Wales by statute is the defence. They were cleared of murder, but were still convicted of , since that is a crime of basic intent.
As a general rule, courts in England are reluctant to apportion blame and impose punishment on those who acted inadvertently, that is, without awareness of the conduct, circumstances and consequence elements that make up the actus reus. He had no defence to. The facts of Kearley will be discussed, followed by an analysis of the decision by their Lordships, finally… 1340 Words 6 Pages Pang 2 August 2014 Body of research essay Word count: An analysis of trial fairness in the case of R. Some examples are as follows. He attempted to revive her, but gave up, believing her to be dead.
The accused left the yard with the papers still burning. Key principle There may well have been a lacuna, or gap, in Caldwell recklessness, where a person wrongly concluded that they were not taking any risk. Its meaning is found in judicial decisions. Supreme Court held the 'fact-finding tribunal' should establish a defendant's actual state of mind and then judge whether their conduct was honest or not according to the objective standards of ordinary decent people. Both models would see the codifying of the definition to a certain extent and provide not a rigid set of rules and definitions but rather guidelines that can be generalized and followed by the juries, and would be able to be applied to different circumstances. If the virtual certainty test was applied it may and can be found that the defendant had no intention to kill and then can not be convicted of murder.
Lack of consistency in the approach to the issue 4 Why is intention important? Jonathan Coles, 18, was pushed into the River Ouse, near Newport Pagnell, Buckinghamshire, after a nightclub brawl, despite protests that he could not swim. The Lords in Woollin agreed that by changing infer to find it would be in the interest of clarifying the law. In this case, the court of appeal upheld that there was a substantial risk, which the child could suffer from serious bodily harm. Some criminal offences require one mental element; some require two, either in addition to each other or as alternative states. A common law or statutory definition would restrict the jury. One died, but the other was found slightly at fault for her death and convicted.
In the rare case where it may be necessary to direct a jury by reference to foresight of consequences, two questions arise: a was death or very serious injury a natural consequence of the defendant's voluntary act? In 1980 the Criminal Law Revision Committee, in its Report on Offences Against the Person, rejected a test based on knowledge of a high probability that death will result from one's actions. Smith and Hogan: Criminal Law. A child died in the fire. The defence of necessity was first tested in the 19th century English case of. Thus, the meaning behind mens rea lies within the mental element of the defendant in a crime.