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Responsibility not a Sufficient Condition of Liability Essay

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Duff = “responsibility is a necessary but not a sufficient condition of liability” An actor is responsible when they are sufficiently blameworthy in causing the harm or committing the wrong = we blame those who have control over their actions (committing a crime is a mental process)

* MR is the guilty mind. Note that it is not necessarily a moral/culpable judgment, and there can be involuntary MR e.g. drugged paedophile in Kingston. * There are many MR states of mind: the sentencing advisory panel stated that there are 4 levels of culpability = intent, recklessness, knowledge, and negligence [in some crimes only negligence is required * Two species of MR Cognitive (involves intention or foresight by D) and Normative (evaluation of D action taking into account surrounding circumstance and D state of mind)

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* Proof of Cognitive = subjective test (assume state of mind is ascertainable only direct evidence is a confession) – jury ascertain reasonable person but destroy subjectivity * DPP v Smith = D trying to escape from the police in a car was signalled to stop. He did not do so. A PC jumped onto the car’s bonnet. D drove at high speed, swerving from side to side, until the officer was thrown off and killed. = CJA S8 – endorses the idea that intention is to be subjectively ascertained


Some crimes are only committed intentionally so must distinguish from recklessness e.g. GBH * Direct intent – It was D’s purpose/aim/objective to bring about the AR. – Duff = test of failure – would D intend their actions to be a failure * Oblique intent – The AR was a necessary by-product of D committing his offence, although it was not his purpose. * Intent is a subjective concept and must be judged according to what D wanted to happen or foresaw happening (s.8 Criminal Justice Act 1967 = lays down evidential rule as to how intention is to be proved and makes it clear that intention is a subjective state of mind = court or jury must draw inferences from all relevant evidence): * D will intend something if it was his purpose to bring it about. Similarly, a jury may use as evidence of intention that D foresaw the result of his act as a virtual certainty and it was a virtual certainty. (Woollin, which affirmed the test in Nedrick)

* Nedrick = D poured paraffin through C letter box and set light to it. A child died in the fire. The judge directed the jury as follows: “If when the accused performed the act of setting fire to the house, he knew that it was highly probable that the act would result in serious bodily injury to somebody inside the house, even though he did not desire it – desire to bring that result about – he is guilty or murder. “The jury convicted of murder and the defendant appealed on the grounds of a mis-direction. Held: There was a clear misdirection.

The Court of Appeal reviewed the cases of Maloney and Hancock & Shankland and formulated a new direction from the two decisions. Lord Lane CJ: “the jury should be directed that they are not entitled to infer 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 actions and that the defendant appreciated that such was the case.”

* Woolin – D threw his crying child at the cot but missed and he hit his head and died. This was the exact opposite of what D intended. Judge misdirected jury by saying that intention could be inferred from D’s realisation of a ‘substantial risk’. = “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 actions and that the defendant appreciated that such was the case.” The decision is one for the jury to be reached upon a consideration of all the evidence. * Lord Bridge disagrees with the leniency of the Woollin definition. He uses the example of a man who boards a plane to Manchester – the plane’s arrival in Manchester is a virtual certainty and so it should be seen as conclusive proof of intent to go there.

Woollin is more generous. * Exceptional cases : oblique intention – D has a purpose other than causing the prohibited harm but where that result is an inevitable or likely consequence – in rare cases it is permissible / central problem is that there are 2 possible interpretations of Woollin * Definitional interpretation = extended definition of intention – if a consequence is foreseen as virtually certain the jury may be told that this amounts to intention * Evidential interpretation = still no definition of intention – where a consequence is foreseen as virtually certain this is evidence entitling a court or jury to find intention – jury has discretion * Evidential adopted = Matthews and Alleyn = Ds who had tossed a half dead V off a bridge who they knew couldn’t swim appealed. Claimed the judge misdirected because he equated the knowledge of virtual certainty to proof of intent, not just evidence. Rix LJ couldn’t see the difference.

* Adv. of evidential = gives jury flexibility = jury given moral elbow room (get out clause) * R v Steane = D British radio announcer who was living in Germany during WWII. With his family under threat he was forced to broadcast on the radio for the Nazis. After the war charged with “doing acts likely to help the enemy with the intent to assist the enemy”. If this case was decided today under evidential the jury would have moral elbow room to find there was no intent * RE A (conjoined twins)= lawful for doctors to separate conjoined twins even though would leave to certain death of the weaker twin LJ Walker = allowed himself moral elbow room as doctors would not intend to kill the weaker twin because that was not the purpose or intention of the surgery

* Is intention a psychological state of mind or a moral conclusion = the doctor would not be morally responsible for the death * Does intention have same meaning for all crimes – Woollin is the latest case so is the authority but only talking about murder – therefore use Nedrick for all other crimes – but no other authority so use Woollin * The Law Commission support codifying the Woollin test in statute. Proposed definition of intention * Chandler v DPP = D opposed to nuclear weapons so planned non-violent action to immobilise an aircraft – under evidential interpretation the jury would be able to evaluate the motives of D but this may largely depend on political persuasion of the jury so generates uncertainty and inconsistency and would also blur the distinction between the elements of an offence and exculpatory defences Pedain – Intent and the Terrorist Example

* The terrorist example is used to show flaws in the definition of intent. It assumes that a terrorist wants to gain attention by planting a bomb in a public place, but giving enough warning that he thinks the place can be evacuated in enough time. It is, but a member of the bomb disposal squad is killed when trying to disarm the bomb. He may not have foreseen this death, and if he didn’t he isn’t guilty of murder. Many see this as unacceptable. * German law involved D recognising and reconciling with himself the risk that he is exposing people to and liability follows.

* The other example is the terrorist who does want the bomb to explode but gets caught and then the bomb disposal person dies. He doesn’t intend to kill the bomb disposal expert. But Pedain says this shouldn’t matter – it is still murder. Can we use a ‘type of harm/transferred malice’ argument.

Kaveny – Inferring Intention from Foresight

* Two opposing views: one recognises that foresight is conceptually different from intention but that a jury may infer one from the other, and the other that foresight is form of intention. * Neither is acceptable because no degree of foresight can be defined as intention, nor can it be the basis of any reliable finding of intention – so neither view is acceptable. * Thus if we are going to allow foresight to be a basis for a murder charge, it has to be built in as a separate mens rea element instead of using Woollin.

Regarded as sufficiently blameworthy

Until October 2003 there were 2 distinct species of recklessness * 1 = Cunningham recklessness a subjective meaning of recklessness was approved (Recklessness entails a conscious running of an unjustifiable risk) * Stephenson = tramp started fire in a straw stack on a farm – charged under criminal damage act but evidence made by psychiatrist that D suffered from schizophrenia so no subjective foresight [under subjectivity the definition of recklessness lies down a double test 1)whether D foresaw the possibility of consequences /2)whether it was unreasonable to take the risk ] * The law commission in the draft criminal law bill 1993 and the draft offences against the person bill 1998 has endorsed subjectivity * 2= Caldwell / Lawrence recklessness [in 1981 the direction of the HoL changed due to their verdicts in 2 cases dramatically according to the first part of the test of foreseeability of consequences it was now objective]

* Caldwell = D had done some work for the owner of a hotel and as a result of quarrel, got drunk and set fire to the hotel, D argued it did not occur to him that there might be people there whose lives might be endangered. None of the 10 guests were harmed Held: Recklessness in the context of Criminal Damage does not require subjective appreciation of the risk of causing damage, but is also satisfied by a failure to consider an obvious risk. HoL held a person is reckless if 1) he does an act which leads to an obvious risk 2) when does an act which either a) gave no thought to the possibility of the consequences b) did recognise consequences [pretty much a test of negligence]

The risk need only be obvious in the sense that it would have been obvious to the reasonable man, not to the accused if he or she had stopped to think Elliott v C nor to a person of the age of the accused or sharing the accused’s characteristics R (Stephen Malcolm) ; R v Miller These cases were confirmed and followed in R v Coles * Lawrence = D drove his motorcycle on a 30mph road at about 80mph, and killed a pedestrian who was crossing the road./Lord Diplock = “…the defendant was in fact driving the vehicle in such a manner as to create an obvious and serious risk … and, second, that in driving in that manner the defendant did so without having given any thought to the possibility of there being any such risk or, having recognised that there was some risk involved, had none the less gone on to take it.”

* Lacuna (gap) in the law of recklessness as above test does not take into account if D stops to think whether there is a risk and then concludes there is no risk and consequently acts * Avon v Shimmen = D thought he had ruled out the risk of causing damage to a window when he aimed a martial-art-style kick in its direction, basing his view on his faith in his own skill. [the risk must be obvious but to whom a reasonable person or D if they think about it] * Elliott V C = A fourteen-year-old girl who had learning difficulties set fire to shed – use objective test and learning difficulty irrelevant – The court accepted that she could not appreciate the risk of the damage, but such a risk would have been obvious to the ordinary person and Caldwell was applied * Current test for recklessness: D believes his conduct will result in a risk of harm, and that risk is not a reasonable one to take but he takes it (from Cunningham and reaffirmed in G and Another)

* Cunningham – D pulled a gas meter off a wall in order to gain illegal access to a house. It caused a gas leak and V was poisoned. No recklessness because risk was not foreseen. * The test is subjective: there can be no liability where there is no risk foreseen. * G and Another – two boys set fire to some papers underneath a bin, which then spread and caused £1m worth of property damage. They didn’t foresee the risk and so they could not be liable – no recklessness. * HoL = Caldwell was disproved not overruled and Cunningham approved, so D was acquitted as didn’t know the risk involved / Lord Bingham = 1) for serious crimes you need to prove culpable state of mind = not thinking about risk is not blameworthy just stupid / 2) Caldwell leads to obvious unfairness- neither moral or just to convict based on what someone else would have apprehended

/3) about 80% of academics, judges and practitioners criticised Caldwell / 4) most importantly Caldwell misinterpreted s1 criminal damages act * Unanimous decision by HoL adopts the Cunningham view that recklessness involves foresight of the possibility of an unjustified risk ‘ but 3 further points * Lord Steyn = “if a D closes his mind to a risk he must realise that there is a risk” = Booth v Cps = D ran across the road without looking (deliberately put risk out of his mind but was aware) * Lord Bingham = exempted self-induced intoxication

* Lord Bingham = restricts his judgment to the meaning of recklessness in the criminal damage act / Lord Rodger = Caldwell may be better suited to some offences than to others e.g. reckless driving * Note that in crimes where we are only concerned with D’s behaviour we may think of recklessness as an AR element – reckless driving. It is possible to intend to drive reckless

* Negligence
Unlike intention and recklessness, negligence is a totally objective standard – the risk is not a perceived/foreseen one. 2 degrees of negligence
Simple negligence = failing to confirm

Gross negligence = major departure of reasonable person – manslaughter Whether negligence is a form of MR is debateable, because the literal translation is that of the ‘guilty mind’. Cognitive = negligence is a state of mind, it is a failure to think so a blank state of mind but like saying nothing is something (how can you have a degree of emptiness) Normative = when finding judgments of blameworthiness , state of mind is part of the picture / D actions in the circumstances are subjected to a broader moral assessment = legitimate that negligence is part of MR – sentencing advisory panel also regard If D has special knowledge (e.g. is a firearms expert) then a higher standard will likely be expected of him. This is given statutory expression in RTA 1998 s.2A(3).

On the other hand, less knowledge will not grant D any dispensation (e.g. learner driver must drive at same level as qualified driver). “knew or ought to have known” imposes that objective standard where special knowledge is included but limited is not. R v C – paranoid schizophrenic appealed a conviction on the basis that the judge should have directed the jury to take his mental illness into account. Not so. Negligence is an objective test and mental illness is irrelevant. Sometimes we are willing to lower the standard of care, for example for children – R (RSPCA) v C (25 year old child who failed to take her cat to a vet). Few serious crimes where negligence can generate liability. Manslaughter, causing or allowing a child to die, public nuisance. Manslaughter requires gross negligence. but change in the past 30 years for statutory offences

Road Traffic Act 1998 s.3 is a crime of negligence.

Other offences where negligence is an element include Sexual offences act 2003 s.9. = no exemption if believed there was consent , need to reasonably believe not honestly believe Are there degrees of negligence? From a mens rea perspective, there cannot be. But there has to be – falling just short of a standard and well below it. This is demonstrated by contrasting but similar offences in RTA 1998 S.2A and S.3. This may be to do with risk to property v risk to people?

Contrast with Adomako, the jury must be required to find a degree of ‘badness’, for manslaughter is a serious crime. Perhaps the degree is less relevant in simple road traffic cases.

Should negligence be a ground of liability?

Many believe negligence has no place in criminal liability. The criminal law is viewed as a reaction to moral fault. Whether there is any sort of moral fault involved in negligent conduct is much debateable (Hall). Punishments for negligence do not deter (negligence is inadvertent) and, also, punishments for negligent homicide tend to be quite light anyway. (Hall). Some disagree – Brett points out that drivers become more careful when there is police presence on the road.

Hart supported a more subjectivist approach, taking into account mental and physical capabilities [characteristics and capacity should be taken into account] The law commissioner similarly endorsed in relation to gross negligence for the purpose of negligence Hybrid offences = some countries have due diligence laws, which replace strict liability with negligence. D committed the AR, but if he took all reasonable steps to prevent it, he may avoid liability [burden shifts to D to prove they were not negligent e.g. if found with drugs proving you thought it was something else]. English courts have been disinclined to use this method (although Sweet v Parsley looked favourably upon it). Hall suggests limiting insurance protection for those civilly negligent, more vigorous controls of licenses e.g. driving, and education etc.

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