TABLE OF CONTENT. I. Explain with illustrations the nature and definition of crime in the context of criminal law (1.1)

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1 TABLE OF CONTENT Task 01 I. Explain with illustrations the nature and definition of crime in the context of criminal law (1.1) Page No. 3-6 II. III. IV. Task 02 What illustrations the relevant elements of crime which you can identify in the given scenario 01? (1.2) There are different levels of mens rea. To be guilty, the accused must have at least the minimum level of mens rea required for the offence. Critically analyze this statement with the relevant statutes and relevant case law. (1.3) Critically analyse with the relevant provisions of Penal code and decided cases whether Janaka and Amal criminally liable for Sujith s death. (1.4) I. Describe the defense available under the Penal Code of Sri Lanka for the offences referred in the given Scenario (2a) (2.1) II. III. Task 03 Critically assess whether defence of duress is available to Kannan for the offence referred in the given scenario 2(b) under the Sri Lankan and English law.(2.2) With reference to relevant section and illustrations of Penal critically discuss the defense of Private defense and necessity (2.3) I. In the context of the above statement (task 3) critically examine the position of law relating to offences where secondary party (to an offence) could be found guilty even though the principal offender is acquitted.(3.1) 34 II. III. Identify the role of principal offender and secondary offender under the criminal law (3.2) The legal effect and punishment for attempted crimes are different fro committed crimes. Discuss (3.3) P a g e

2 IV. Critically evaluate the legal principles articulated in the cases of R v Bourne (1952) App R 1251 and R v Coagan and Leak (1976) QB 217, in the context of participation in crimes. (3.4) V. The offence under the Criminal law, generally classified into offence committed against person and offence committed against property. Critically evaluate this statement with relevant statutory provisions and decided cases. (3.5) Task 04 I. Critically examine the jurisdiction of the criminal courts and Criminal procedures in the context of criminal proceeding in Sri Lanka. (4.1) II. III. Identify the provisions in the Penal Code and Code of Criminal Procedure of Sri Lanka in respect of crimes referred in the scenario (4.2) Briefly describe the law relating to bail and identify whether the offences referred in the scenario are bailable or non bailable (4.3) Consulted works 69 2 P a g e

3 1.1 Explain with illustrations the nature and definition of crime in the context of criminal law. Introduction "A crime is an unlawful act or default which is an offence against the public and renders the person guilty of the act or default liable to legal punishment. 1 In case Board of Trade v Owen (1957) 2 Lord Tucker also considered that the correct definition of a crime in the criminal law was the above passage from Halsbury's Laws of England. When somebody is participating for a crime he makes himself criminally liable. Discussion According to the peal code offence is a thing made punishable by the penal code or under any other law. 3 Main purposes of criminal law are; a. Protect individuals and there property from harm b. Preserve order in society c. Punish those who deserve punishments There are two branches of criminal law; a. Substantive Criminal law - physical and mental element a crime, general principal of intention and causation, the defense available and other general rules b. Procedural Criminal law include rules of procedure or evidence or sentencing theory and practice Classification of Offences, 4 (1) Police powers a) Indictable offences b) Indictable offences c) Terrorism offences d) "Hybrid" offences (2) Source of law (3) Type offence a) Common law (judge made) b) Statutory (defined in an act of parliament) c) Regulatory (set out in delegated legislation) a) Offence against the person b) Offence against property c) Offence against public order 3 P a g e

4 Penal code has classified criminal offences under 17 topics, 1. offences affecting the human body 2. offences against property of theft 3. offences against the state 4. offences relating to the navy, army and air force 5. offences against the public tranquility 6. offences by or relating to public servants 7. offences relating to elections 8. contempt of the lawful authority of public servants 9. false evidence and offences against public justice 10. offences relating to coin and government stamps 11. offences relating to weights and measures 12. Offences affecting the public health. safety, convenience, Decency. And morals 13. offences relating to religion 14. Offences relating to documents. property-marks, currency Notes and bank notes 15. criminal intimidation, insult, and annoyance 16. unlawful oaths 17. attempts to commit offences Offence against Public order (4) Place of trial a) Indictable only offences b) Trialable either way offences c) Summary offences Also Penal code has stated the punishments which offenders are liable, a. Death b. Imprisonment ( simple & rigorous ) c. Whipping d. Forfeiture of property e. Fine Elements of a crime 1. Actus reus (guilty act); Crime = Actus Reus + Mens rea + Absence of a defense 5 A. A prohibited voluntary act D guilty of manslaughter of V, who died in their care, by gross negligence, not by an unlawful act [Stone & Dobinson (1977)] 6 B. A failure to act (an omission) D found guilty of arson. He failed to put out a fire which came from his lit cigarette. [Miller (1983)] 7 In the case of Actus Reus of a crime, it need not simply be voluntary to satisfy the Actus Reus. D found drunk in hospital. He was chased to public highway by policemen. Later he 4 P a g e

5 was charged with being found drunk in the highway. [Winzar v Chief Constable of Kent (1983)] 8 The Theory of Causation The act of the defendant must cause the result or the crime. Causation is like a chain. That mean defendants actions should be a direct link of the end result which is consider as the criminal act. An intervening act at somewhere of the incident may break the chain of causation. Because of that he will not find guilty. 1. D s action must be a factual cause of criminal act- In R v White (1910) 9 D tried to poison and kill his mother. But unexpectedly she died because of natural causes before he could give it to her. He was not guilty for her death. Because poisoning was not the factual cause of criminal act. 2. D s actions need not be the sole cause of criminal act In case R v Pagett (1983) 10 D used his pregnant girlfriend as a human shield in hostage situation. Later she died in police gunfire. But he found guilty because his actions need only be a substantial cause of death. 3 Thin Skull Rule You must find your victim as you find him. 11 This means that the defendant cannot escape liability if the victim suffers more harm than would otherwise be expected due to his act under normal circumstance. D was not given excuse simply because she didn t know V was more susceptible to serious injury or death fro her act. [R v Blaue (1975) 12 ] 4 If V kills due to Medical intervention, D may still be liable In case R v Smith (1959) 13 an operating and substantial cause of death of V. In R v Cheshire (1991) 14 D s acts need not be the sole or even the main cause of death., he died due to other reasons as well. Again in R v Jordan (1956) 15 palpably wrong medical treatment cause the death of V. In all above three cases V died not directly because of D s act, but it initiate the consequence and final result was the death. 2. Mens rea (guilty mind) - Mens rea has two divisions as Intention and Recklessness. (1) Intention It can be direct or indirect. Direct; - the accused desires the outcome. And he sets out to ensure it occurs; Or Indirect; - the accused does not desire the outcome. But he recognizes that crime is a virtual certainty. (R v Woollin [1998]) 16 (2) Recklessness - There is now only one test for recklessness (subjective). Did the D foresee there was a risk involved? R v G and R (2003) 17 the Ds, aged 11 and 12, set fire to a wheelie bin. Fire spread causing damage to the neighboring building. Ds did not appreciate the risk found not guilty (follows R v Cunningham). 3. Strict liability- In offences under strict liability the Defendant only needs to commit the Actus Reus to be found guilty of the crime. The D s state of mind at the time is irrelevant and not takes into consideration. Someone may think it is unfair on the D who is committing a crime but may 5 P a g e

6 not realize it. In Meah v Roberts (1977) 18 two children asked for lemonade. But by mistake they were served with caustic soda. D found guilty of selling food unsuited for human consumption. Conclusion Criminal law is usually categorized under the public law. Because of the crimes are considered as wrong doings against the people, though it might affect only one person. Hence it considers as the acts against the State and they are punished by the State. Again the person who is committed an offence will be punished in some manner prescribed by the State. In Woolmington v DPP (1935) 19 articulating the ruling, Viscount Sankey made his famous "Golden thread" speech; Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defense of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. When dealing with a murder case the Crown must prove; 1. Death as the result of a voluntary act of the accused; and 2. Malice of the accused. Reference 1. Halsbury s Laws of England, Edited by: The Right Honourable Lord MacKay of Clashfern, ISBN: , LexisNexis Butterworths 3rd Ed., Vol 10, p Trade v Owen (1957) [1957] AC 602, HL(E) 3. S.38 Penal code 4. UNLOCKING CRIMINAL LAW, Jacqueline Martine & Tony Storey, ISBN: , Hodder Education an Hachette UK Company, 3 rd Ed., pp definition.htm on 24 Sept Stone & Dobinson (1977) QB Miller (1983) UKHL 6 8. Winzar v Chief Constable of Kent (1983) 9. R v White (1910) 10. R v Pagett (1983) on 24 Sept R v Blaue (1975) 13. R v Smith (1959) 14. R v Cheshire (1991) 15. R v Jordan (1956) 16. R v Woollin [1998] 17. R v G and R (2003) 18. Meah v Roberts (1977) 19. Woolmington v DPP (1935) AC P a g e

7 1.2 What illustrations the relevant elements of crime which you can identify in the given scenario 01? (Presentation) 7 P a g e

8 1.3 There are different levels of mens rea. To be guilty, the accused must have at least the minimum level of mens rea required for the offence. Critically analyze this statement with the relevant statutes and relevant case law. Introduction Mens rea is the mental elements of a crime. Different levels of mens rea can be identified under following categories; 1 1. intention Direct intention 2. recklessness 3. negligence 4. dishonesty 5. transferred malice Discussion 1. intention Oblique intention a) Direct intention- Someone s aim, desire or purpose. In Calhaem [1985] 2 D was infatuated with her solicitor and wished to remove his girlfriend from him. She hired a professional killer to murder the girl. He alleged that he visited V's house with an attempt to pretend to kill. However after she screamed and panicked and he killed her. Then he was convicted of Murder and D found guilty of being a secondary offender. She appealed on the basis that her counseling of the contract killer had to be a substantial cause of the killing. Court of Appeal rejected the appeal and agreed with the trial judge that clearly D has direct intent to kill. b) Oblique intention-here D does not necessarily desire an outcome but realizes that it is almost inevitable. 3 DPP v Smith [1960] 4 D tried to escape from the police in a car. He was signaled to stop. He did not stop. A Police man jumped onto the car's bonnet. D drove at high speed until the officer was thrown off and killed. The court held that it was clear that he had intended to cause grievous bodily harm, which meant no more and no less than really serious injury. His initial intention was just to escape from the police but later it changed. Criminal Justice Act 1967 explains about Proof of criminal intent; A court or jury, in determining whether a person has committed an offence; 8 P a g e

9 a. shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but b. shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances Recklessness- Here D takes an unjustifiable risk of a particular consequence occurring with awareness of that risk. This is a sufficient mens rea for mans rea. E.g.: Manslaughter, Malicious wounding, Inflicting grievous bodily harm, Assaulting occasioning actual bodily harm To prove mens rea of Recklessness court uses the Cunningham test which explain later part of this question. R v Kimber (1983) 6 D assaulted indecently a female patient in a mental hospital. He admitted that he was not interested in her feelings at all and this was recklessness. Court held that recklessness in indecent assault cases is subjective. D found guilty no miscarriage of justice despite misdirection. 3. Negligence- D IS liable if he or she fails to appreciate circumstances or consequences that would have been appreciated by the reasonable man. 4. Dishonesty- This form of mens rea is stated in Theft Act 1968 & Fraud Act 2006, but neither of them has defined it exactly. Therefore there was an argument whether this should be tested subjectively or objectively. Anyway in Ghosh (1982) 7 the court was introduced a hybrid test. 5. Transferred malice- The word "maliciously" meant foresight of the consequence. R v Latimer (1886) 8 A soldier argued with another man C in a pub. During the argument soldier took off his belt swung it at C. It missed C and wounded the V. Court held that the intention to strike C was transferred to V under the doctrine of transferred malice. The soldier found guilty. There is a maxim, saying that; Actus non facit reum nisi mens sit rea 9 P a g e

10 This means it is not proper to punish a man criminally unless he had a guilty mind. According to this it is very clear accused s state of mind has a vital bearing on his responsibility. Mistake is a general defense. If someone is done an offence by mistake no mens rea can be found. To prove mistake need a subjective test. In B (a minor) v DPP [2000] 9 D was aged 15 boy incited a girl under 14 years and asked her several times for a shiner (oral sex). He honestly believed the girl to be over 14. The court held defendant not guilty. There court defined, the mental element in a crime was concerned with a subjective state of mind. Is there here a compellingly clear implication that Parliament should be taken to have intended that the ordinary common law requirement of a mental element should be excluded in respect of the age ingredient of the new offence? Thus far, having regard especially to the breadth of the offence and the gravity of the stigma and penal consequences which a conviction brings, I see no sufficient ground for so concluding. It is clear that the law never require the mistake have been reasonable if the honesty of the mind is proved. Some offences need specific intention. [E.g. unlawful wounding (s18) under English law] in R v Belfon [1976] 10 D attacked and slashed victims with a razor, causing severe wounds to his head and chest, with intent. But court held that he was not guilty, by saying that; [D]..had certainly foreseen the risk of such consequences, but it had not been proved that he had the specific intent required for the more serious offence In R v Caldwell (1982) 11 Lord Diplock stated that; It is unnecessary to classify the offence as one of specific or basic intent, since, as far as recklessness is concerned, evidence of intoxication is logically irrelevant and therefore no defence anyway. There D was guilty for setting fire by night to a residential hotel where he had been employed. House of Lords formulated the test later known as Caldwell recklessness : A person is reckless as to whether property is destroyed or damaged where: (1) His act creates an obvious risk that property will be destroyed or damaged and (2) When he does it he either; a) has not given enough consideration about the possibility of such risk; or b) has recognised the risk and has nonetheless gone on to do it. But in R v G & R [2003] 12 House of overruled MPC v Caldwell [1982] decision. Two boys, aged 11 and 12, went out at night without their parents permission. They lit old newspapers with a lighter and threw them under a wheelie bin. They then left without putting them out and the fire spread to a shop and caused over 1m of damage. Court quashed convictions and introduced new test for recklessness. The appropriate test of recklessness for criminal damage 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; 10 P a g e

11 and it is, in the circumstances known to him, unreasonable to take the risk." R v Crossman (1986) 13 is a case where D found Guilty for driving recklessly. He was driving with the knowledge that by doing so he was putting other road users at risk of serious injury or death. It is clear that though someone do not have intend to do a crime, if he has done the Actus reus of the crime because of recklessness still it is a crime. Murder is most serious offence against human body. In a murder it is not need to be proved the intention for murder. Intention to commit homicide or grievous bodily harm, but not to cause death is sufficient to prove Mens rea. R v Cunningham (1981) 14 D attacked V by hitting him repeatedly with a chair, which resulted in V s. death. Court held D guilty and said he must have foreseen a risk and recklessly gone ahead and taken it. Lord Hailsham LC: "malice aforethought has never been limited to the intention to kill or to endanger life". Lord Edmund-Davies: "I find it strange passing that a person can be convicted of murder if death results from, say, his intentional breaking of another's arm, it no doubt constituting "really serious harm. But I recognise the force of the contrary view that the outcome of intentionally inflicting serious harm can be so unpredictable that anyone prepared to act so wickedly has little ground for complaint if, where death results, he is convicted and punished as severely as one who intended to kill." In Data Protection Registrar v Amnesty International [1995] 15 court held only some regulatory offences such as the requirements of the Data Protection Act (offences of misusing data), require Caldwell recklessness. Rose LJ stated that: To establish recklessness, the prosecution must prove first that there is something in the circumstances that would have drawn the attention of an ordinary, prudent individual to the possibility that this act was capable of causing the kind of mischief that the Act intended to prevent and that the risk of those mischief occurring was not so slight that the ordinary, prudent individual would feel justified in regarding them as negligible. Secondly the prosecution must prove that before doing the act, the defendant either failed to give any thought to the possibility of their being such a risk, or, having recognised that there was such a risk, he nevertheless went on to do it. W (A minor) v Dolbey [1983] 16 was a case which defines recklessness and malice intention is not the same. D shot V with an air rifle believing that it had run out of pellets. Court said that he genuinely believed that he had used the last pellet. He ignored the risk that it might be loaded and so D was reckless. The court squashed the conviction of D and held that, to prove malice intention prosecutor must show D actually foresaw that a particular kind of harm might be done to his victim. In this case he had not. In Caldwell malice intention and recklessness were clearly distinguished. DPP v A [2000] 17, here court explain the level of foresight required to prove the mens rea of an offence. A and S entered to a game. They agreed to shoot at each other below the knee with air pistols. Both were wearing cricket pads for protection. But A fired a shot at S which hit the eye. Court held, Maliciously for the purposes of s 20 of the Offences Against the 11 P a g e

12 Person Act 1861 meant actual intention or recklessness as to whether a particular type of harm "might" be done, thus it would be sufficient that only slight harm had been foreseen. Anyway the matter would therefore be remitted to a fresh bench of justices for reconsideration. R v Farrell [1989] 18 showed objective recklessness which expressed in Caldwell is not enough for some offences. [E.g. Assault (s 20)] D shot V with a crossbow. But he said it was an accident. Held that not guilty. Objective recklessness was not enough to support a s.20 conviction. Even a clear intention to frighten V, which is sufficient for common assault, would not be enough for unlawful wounding unless D had given some thought to the possible consequences. Flack v Hunt (1979) 19 D shot M by firing into bushes. M was hiding there. D was only intending to frighten him. D suspected M was poaching in his woods. It was held that D had not foreseen the risk of harm. Again he had considered the matter and decided there was no risk and D was not guilty. R v Forbes (2000) 20 D imported two pornographic videos. Although he believed the videos were banned in the UK. He did not know that they contained indecent photographs of children under the age of 16. Court held that it was not necessary for the prosecution to prove that D knew the nature of the material. It is sufficient only that he knew it was indecent. He was guilty. R v Grimshaw (1984) 21 D was in a pub when someone insulted her boyfriend. She pushed the glass he was holding into his face. It was held, she would only have had the mens rea if she had at least foreseen that he might suffer some harm. It was satisfied only by proof of what D actually foresaw. The trial judge directed the jury to consider whether she should have foreseen the risk of harm. Anyway it was only a minor harm. Not Guilty. DPP v K (1990) 22 D who was a student placed acid in a hot air drier to hide it from his teachers. Later V used the drier and the acid caused burns on his face. The court held if the charge was simply battery, it is not necessary to prove harm, and he was guilty. Parker LJ stated: D had "just as truly assaulted the next user of the machine V as if D had himself switched the machine on". This case was decided on Caldwell Recklessness but on that point was overruled by Sprat, which was later confirmed by Parmenter, which states that Cunningham Recklessness is the test for assaults. The House of Lords settled the issue in Parmenter and Savage They also upheld Roberts (1971). R v Scalley [1995] 23 D set fire to a house by pushing lighted newspaper through the letterbox. A child died in the fire. D was charged with murder. The judge told the jury they should convict the defendant if they were sure that D intended death or grievous bodily harm. The judge should have made it clear that foresight was merely evidence of intent and it was not to be equated with. It held that not guilty of murder but guilty of manslaughter. R v Seymour (1983) 24 a driver collided his lorry with a car. When the driver of the car V got out of the car D drove his lorry into the car and V was crushed between the two vehicles. V was killed. D was convicted of manslaughter. Court held: Defendant was Guilty of death by reckless driving and manslaughter. Case where death was caused by reckless driving was Lord Diplock's dicta in Lawrence. Lord Roskill: 12 P a g e

13 "there is. a need to prescribe a single and simple meaning of the adjective "reckless" and the adverb recklessly throughout criminal law... That simple and single meaning should be the ordinary meaning of those words as stated in this House in R v Caldwell and in R v Lawrence". R v Sheehan & Moore [1975] 25 Two defendants in a drunken state poured petrol over V and burned him to death. It was held that the question was not whether defendants were capable of forming the necessary intention but whether they had in fact done so. They were not guilty of murder but guilty of manslaughter. R v Stubbs (1989) 26 D in a drunken state stabbed V causing grievous hurt. He was charged under s.18. Held that although the absence of mens rea due to drunkenness would be a defence to a crime of specific intent that drunkenness would have to be very extreme to justify reducing a s.18 offence to s.20. He was not guilty. Accused must have at least the minimum level of mens rea as well as correct mens rea to be guilty for specific offence. R v Taaffe (1984) 27 D wrongly believed that importing currency was illegal. Therefore he sought to smuggle several currency packages from Holland. He had been enlisted by a third party to import cannabis. There was no such offence of importing currency at that time. He could not be liable for attempting a crime that does not exist. The court held that, for this offence D must be judged on the facts as he believed them to be. His mens rea for a non existent crime could not be imported to the smuggling of drugs. D's mistake of law could not convert the importation of currency into a criminal offence and importing currency is what D had assumed he was doing. He was not guilty. Hereafter this has know as the Taaffe defence. This is much favoured by smugglers. Actus Reus and mens rea of an offence can be quite separate in time and geography. In Jakeman (1982) 28 the mens rea occurred in Ghana, and the Actus Reus was by the innocent agency of Paris. Conclusion Different offences need different level of mens rea. To be guilty, the accused must have at least the minimum level of mens rea required for the offence. Level of mens rea needed for different offences has mentioned in common law and statutes. Penal code has clearly stated the level of mens rea needed for different offences under each section. They can be highlighted as follow. (Table 1.0) 13 P a g e

14 Criminal offences (1) culpable homicide (2) Murder (3) Abetment of suicide (4) Miscarriage (5) Cruelty to children (6) Cause hurt/ Grievous hurt Penal code section A Physical element causes death by doing an act commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid any act causes a woman with child to miscarry assaults, ill-treats, neglects, or abandons such person or causes or procures such person Mental element intention of causing death or causing such bodily injury as is likely to cause death or with the knowledge intention of causing death intention of causing bodily knows that it is so imminently dangerous injury intention or knowledge voluntarily. not caused in good faith (intention) willfully(intention) (7) Assault (8) Sexual harassment (9) Kidnapping 310 & causes bodily pain, disease, or infirmity makes any gesture or any preparation assault or use of criminal force, sexually harasses Causes (Intention or knowledge) intending or knowing causes sexual annoyance or harassment (with Intention) 14 P a g e

15 (10) Abduction 350 conveys any person beyond the limits of Sri Lanka without the consent or takes or entices any without the consent (Intention ) (11) Sexual exploitation of children (12) Trafficking (13) Soliciting a child (14) Rape B by force compels abuse of authority child to be sexually abused.. participate in any form of sexual activity by force compels, or by any deceitful means, or by abuse of authority (Intention) Knowingly (15) Incest (16) Unnatural offence 360C 360E buys, sells or barters or instigates another person to buy solicits Intention (17) Acts of gross indecency between persons (18) Grave sexual abuse A 365 sexual intercourse sexual intercourse carnal intercourse Purpose(= Intention) Without consent Intention or knowledge (19) Theft (20) Extortion 365A act of gross indecency Voluntarily (Intention or knowledge) gross indecency (Intention) (21) Robbery (22) Dishonest misappropriation of property (23) Criminal breach of trust 365B committed any act moves that property puts any person in fear for sexual gratification (=Intention) intending to take dishonestly intentionally 15 P a g e

16 (24) Cheating committing of the theft misappropriate dishonestly voluntarily (=Intention) Dishonestly 388 misappropriate Dishonestly 398 deceived to deliver any property fraudulently or dishonestly Table 1.0 The Common law approach on the level of mens rea is appreciatable. Level of mens rea for different offences can be identified in case law. They show much progressive approach by being much flexible than statutory law. They have been developed through many cases over centuries. (Table1.2) Related offence or concept Common Law rules on Mens Rea Related Case examples Criminal Damage In criminal damage recklessness is the Caldwell, R v (1982) test for Criminal Damage is always objective recklessness reckless or Mens rea subjective recklessness used in Cunningham, v[1957] intention most crimes malice means reckless or intention murder Mens rea of murder, intention to commit Cunningham,R v 1981) homicide or grievous bodily harm murder For Mens rea of murder, intention to kill or Smith, DPP v [1960] intention to GBH is needed. intention can be formed instantly and can be inferred murder Mens rea of murder, intention can be Re A (Children) (2000) inferred held to have caused that death and to have done so intentionally, even though that would not have been his primary motive. murder Mens rea of murder, intention includes Nedrick, R v (1986) knowledge or foresight murder In mens rea of murder foresight is evidence Scalley, R v [1995] of intent, not necessarily is intent. The judge should have made it clear that foresight was merely evidence of intent and was not to be equated with it. murder For murder intention must be proved Sheehan & Moore, R v [1975] 16 P a g e

17 murder manslaughter mistake Offences under Data Protection Act Grievous bodily harm(gbh) Grievous bodily harm(gbh) pornography transferred malice assault assault assault assaults Mens rea of murder, intention not formed when intoxicated. Mens rea of transferred malice in manslaughter. D intention to assault X can transferred to C. to prove mens rea general defences of mistake need subjective test Only some regulatory offences, such as the requirements of the Data Protection Act require Caldwell Recklessness Mens rea of assault (s20) GBH need to foresee some harm not necessarily the harm caused. She would only have had the mens rea if she had at least foreseen that he might suffer some harm. s.20 was satisfied only by proof of what D actually foresaw In Mens rea of (s20) GBH not only foresaw but also level of foresight required For mens rea in pornography knowledge is sufficient. video recordings It was not necessary for the prosecution to prove that D knew the nature of the material only that he knew it was indecent Mens rea of transferred malice must be same crime. The intention to strike C was transferred to V under the doctrine of transferred malice, although the result, in some respects, is an unintended one. Mens rea of transferred malice in assault cannot be transferred to a different offence; His "malice" in intending to strike another person could not be transferred to an intention to break the window. Mens rea of assault did D, or would D, if sober, foresee the consequences V can consent to horseplay what another person would have foreseen but what DD themselves would have foreseen had they been sober. Mens rea of Cunningham recklessness required in assault. D had "just as truly assaulted the next user of the machine V as if D had himself switched the machine on" Mens rea of Cunningham Recklessness applicable in assaults. In cases involving offences against the person, subjective Lipman, R v [1969] Mitchell, R v [1983] B (a minor) v DPP Data Protection Registrar v Amnesty International[1995] Grimshaw, R v(1984) DPP v A [2000] Forbes (Giles), R v (2000) Latimer, R v (1886 Pembliton, R v(1874) Richardson & Irwin, R v [1999] K, DPP v (1990) Spratt, R v (1990) 17 P a g e

18 foresight under the Cunningham test is required to prove recklessness. Assault Assault (Sec 20) objective recklessness (Caldwell) not enough. Assault Mens rea assault specific intent needed for (Sec 18) Assault Mens rea in assault (Sec 20) recklessness and malice intention are not the same. Assault Assault (malicious wounding) intention no risk seen D had not foreseen the risk of harm; on the contrary, he had considered the matter and decided there was no risk Assault In Assault no mens rea because of drunkenness indecent assault Mens rea of Recklessness in indecent assault cases is subjective actual bodily Mens rea of ABH, occasioning refers to harm causation not the assault, and is an objective test. If the (common) assault was intentional there is no need to consider Farrell, R v [1989] Belfon, R v [1976] Dolbey, W (A minor) v [1983] Flack v Hunt (1979) Stubbs, R v (1989) Kimber, R v (1983) Roberts, R v (1971) Recklessness. actual bodily subjective recklessness apply in ABH and Savage; Parmenter, R harm and common assault, intention or recklessness v (1992) common assault foresee some harm not necessarily the harm caused driving offences& Mens rea of reckless driving model Lawrence, R v(1982) motoring cases direction driving offences& driving knowing load is unsafe is reckless Crossman, R v(1986) motoring cases driving offences Objective recklessness is relevant to Reid, R v (1992) & motoring cases motoring cases. Recklessness could not be restricted to a subjective test and included failing to appreciate an obvious risk. driving offences& Caldwell recklessness applicable to prove Seymour, R v(1983) motoring cases the Mens rea of a manslaughter caused by reckless driving action not aimed D willfully obstructed a police man of his Lewis v Cox [1985] at police duty if he deliberately did an act which, though not necessarily aimed at or hostile to the police, in fact prevented a police man from carrying out his duty or made it more difficult for him to do so, and if he knew and intended that his conduct would have that effect. attempt Intent is an essential ingredient of an Mohan, R v (1976) attempt and is the only mens rea of attempts. rape To be guilty of rape Mens rea required Satnam, R v; Kewal, R 18 P a g e

19 is recklessness of Cunningham type. D must know the woman did not want to have sexual intercourse, or was reckless as to whether she wanted it or not. v (1985) Table1.2 Therefore it is clear that, to be guilty for different offences, the accused must have at least the minimum level of mens rea required for the offence. This concept was a result of evolution over centuries by the judges through their decisions and then through the statutes. Reference: 1. UNLOCKING CRIMINAL LAW, Jacqueline Martine & Tony Storey, ISBN: , Hodder Education an Hachette UK Company, 3 rd Ed., Ch 3, pp R v Calhaem [1985] QB UNLOCKING CRIMINAL LAW, Jacqueline Martine & Tony Storey, ISBN: , Hodder Education an Hachette UK Company, 3 rd Ed., Ch 3, p56 3. DPP v Smith [1960] 3 All ER (section 8) Criminal Justice Act R v Kimber [1983] 1 WLR R v Ghosh [1982] 3 WLR R v Latimer (1886) 17 QBD B (a Minor) v Director of Public Prosecutions (2000) 1 ALL ER R v Belfon [1976] 1 WLR R v Caldwell [1982] AC R v G and R [2003] UKHL R. v.crossman [1986] R.T.R R ν Cunningham [1981] 2 All ER Data Protection Registrar -v- Amnesty International (British Section) CO 1323/94; [1995] Crim L R W (a Minor) v Dolbey [1983] Crim L. R DPP v Armstrong 1999 EWHC QB 270, 2000 Crim LR R v Farrell [1989]. CLR Flack v Hunt (1980) Crim. L.R R v Forbes (2000) All ER (D) R v Grimshaw [1984] Crim LR DPP v K (a minor)[1990] 1 WLR R v Scalley [1995] Crim LR R v Seymour [1983] 2 AC v Sheehan and Moore (1975) 60 Cr App R R v Stubbs (1989) 88 Cr App R R v Taaffe [1984] AC R v. JAKEMAN. (1982) 76 Cr App R P a g e

20 1.4 Critically analyse with the relevant provisions of Penal code and decided cases whether Janaka and Amal criminally liable for Sujith s death. (Class activity) 20 P a g e

21 2.1 Describe the defense available under the Penal Code of Sri Lanka for the offences referred in the given Scenario (2a) Scenario (2a) Hassan on a train when he saw what he thought was a man assaulting a youth. In fact it was a man trying to arrest the youth of mugging a young lady. Hussain got off the train at Gampola station and asked what was happening. The man said he was a police officer arresting the youth, but when Hussain asked him to show his police ID card he could not do so. There was then a struggle between Hussain and the man in which the man was seriously injured. Introduction The defences which are available to offences depend on the wording of the statute and rules of the common law. There are two types of defences. General Defence Insanity (Section 77) self defence (Section 89-99) Mitigatory Defence Duress (except murder, attempted murder and some forms of treason) (Section 87) Necessity (except murder, attempted 21 P a g e

22 mistake automatism Intoxication (involuntary) (Section 78) Marital coercion (except treason and murder) murder and some forms of treason) (Section 74) mistake infanticide Intoxication Diminished responsibility Infancy (Section 75 & 76) Consent (Section 80-85) Private defence (section 89-99) Loss of control Table 2.1 Discussion Section 89 of the Penal code explains; Nothing is an offence which is done in the exercise of the right of private defence. Again in the section 90 shows extent of the defence which some person can plea under it. Every person has a right., to defend;. His own body and the body of any other person, against any offence affecting the human body; According to this it is very clear the idea of the defence available in broad sense not only ones own body but also to the human body. Section 92 states the limitation of the defence, instances which no right of private defence available against certain acts. There the law has covered and protect public servants by disallowing the private defence against their acts. But in Explanation 1 and 2 say that; A person is not deprived of the right of private defence against an act done, or attempted to be done by, a public servant, as such, unless he knows, or has reason to believe, that the person doing the act is such public servant. Or the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction ; or unless such person states the authority under which he acts, or. if he has authority in writing, unless he produces such authority, if demanded. Therefore it is clear that if the public servant unable to prove his authority still private defence is available for the defendant. In Gladstone (1984) 1 D was not guilty of assault to a police officer. There D saw a man assaulting a youth. The youth was calling for help. In the fact man was a police officer who 22 P a g e

23 was arresting the youth lawfully at that time. But D intervened to the struggle, honestly believing that he was preventing an unlawful assault. According to the fact the court decided that his belief was not unreasonable. Therefore he cannot uphold for assaulting the police officer though the officer was acting in good faith under color of his office. Hassan s case can be identified misjudging circumstance mistakenly as to self-defence on the facts. Hassan honestly believes that he is helping the youth. Again he could not verify the authority of the officer, may be because of he was not on duty. But Hassan asked his police ID card but he was failed to do so. Therefore his plea under private defence would no be restricted under the section 92 of the penal code. Hassan did not have a reasonable ground to believe that he was a police officer. Lord Lane CJ said in the Gladstone case that the jury should be directed first of all that the prosecution have the burden or duty of proving the unlawfulness of the defendant's actions; secondly, if the defendant may have been labouring under a mistake as to the facts, he must be judged according to his mistaken view of the facts; thirdly, that is so whether the mistake was, on an objective view, a reasonable mistake or not. In Beckford (1988) 2 D, police officer shot dead a suspect. The suspect had told that he was armed and dangerous. D shot him because he feared for his own life. But later found he was unarmed at that time. The prosecution case was that the victim had been unarmed and thus presented no threat to the defendant. The trial judge directed the jury that the defendant's belief in the need to shoot in self-defence had to be both honest and reasonable. Therefore he upheld the conviction. But the Privy Council rejected this direction and approved the approach in Williams. Lord Griffiths commented that juries should be given the following guidance: "Whether the plea is self-defence or defence of another, if the defendant may have been labouring under a mistake as to facts, he must be judged according to his mistaken belief of the facts: that is so whether the mistake was, on an objective view, a reasonable mistake or not." Here three elements had been outlined clearly. 1. He honestly believed the facts he was aware were true. 2. He reacted on his belief. 3. His reaction was reasonable. The police officer therefore, had a defence of self-defence because the killing was not unlawful if, in the circumstances as he perceived them to be, he had used reasonable force to defend himself. Hassan was not guilty of assault the man. Accordingly to accept the defence on the ground private defence those facts should make clear. In Hassan s case those elements are very clear; 1. Hassan attacked under a mistake as to facts, 2. he judged according to his mistaken belief of the facts; and 3. it was a reasonable mistake on an objective view. 23 P a g e

24 Conclusion Hassan is liable to plea under on the footing private defence under sections 89 and 90 of the penal code. He will not comes under restrictions of section 92 because had no reason to believe that he was a police officer. According to the judgments at R v Williams (Gladstone) (1984) and R v Beckford (1988) it is further clear that he is not guilty for attacking the police officer. Reference 1. R v Williams (Gladstone) (1984) 78 Cr App R R v Beckford (1988) 1 AC Critically assess whether defence of duress is available to Kannan for the offence referred in the given scenario 2(b) under the Sri Lankan and English law. (Class Activity) 24 P a g e

25 2.3 With reference to relevant section and illustrations of Penal critically discuss the defense of Private defense and necessity Scenario (2a) Kannan was 19 years old boy whose parents were separated. His mother is working as a house maid in Kandiah s house. Kandiah is a reputed lawyer. Kannan s father thought that his separated wife had a special and intimate relationship with Kandiah. Kannan was threatened with violence by his father unless he agreed to stab his mother. Kannan attacked his mother but did not kill her. He was charged for an attempted murder. Introduction An accused person is presumed innocent until proven guilty. In the prosecution the prosecutor may have to disapprove a defence which the defendant raises. For all common law defences except insanity the defendant only has to raise some evidence to the key point defence. 1 Private defence and necessity are two defences available for defendants under different circumstances. 25 P a g e

26 Private defence can divide into two branches according to it are extending; a) Self-defence b) Public defence According to U.S. law the right of self-defense is the right for civilians acting on their own behalf to engage in violence for the sake of defending one's own life or the lives of others, including the use of deadly force. 2 Public defence in preventing the crimes protecting others. In U.S. criminal law, necessity may be either a possible defence or exculpation for breaking the law. Defendants seeking to rely on this defense argue that they should not be held liable for their actions as a crime because their conduct was necessary to prevent some greater harm and when that conduct is not excused under some other more specific provision of law such as self defense. 3 Discussion Private defense According to the section 89 of the penal code Nothing is an offence which is done in the exercise of the right of private defence. Again it says Every person has a right.. to defend 4 under private defense for a threat against; 1. His own body, and the body of any other person, against any offence affecting the human body ; 2. The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief, or criminal trespass, or which is an attempt to commit theft, robbery, mischief, or criminal trespass. Therefore it is very clear that private defence available for protection from offence affecting; 1. His own body 2. Any other human body 3. His own property 4. Property of any other person Offences which the property must be protected also stated clearly; theft, robbery, mischief, or criminal trespass, an attempt to commit theft, an attempt to commit robbery, an attempt to commit mischief, or an attempt to commit criminal trespass. There are other circumstances where every person has the same right of private defence against, they are; 1. offence by reason of the youth, 2. the want of maturity of understanding, 26 P a g e

27 3. the unsoundness of mind, or 4. the intoxication of the person doing that act or 5. by reason of any misconception on the part of that person. 5 As an example if Z, under the influence of madness, attempts to kill A; Z is guilty of no offence. But A has the same right of private defence which he would have if Z were sane. (Illustrations a) A enters by night a house which he is legally entitled to enter. Z, in good faith, taking A for a housebreaker, attacks A. Here Z, by attacking A under this misconception. Here A commits no offence, but A has the same right of private defence against Z which-.he would have if Z were not acting under that misconception. (Illustrations b) These are the circumstances which can be justified by the either angles of A or Z. Anyway this concept ensures the right of all people to protect against the attacks of the others. This is a very vital concept. Because of the security is an essential requirement for all, through out their lifetime. Also right of this defence is subjected to the restrictions contained in section 92. It states the acts against which there is no right of private defence. 1. There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under color of his office, though that act may not be strictly justifiable by law. 2. There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law. 3. There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. 4. The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. A person is not deprived of the right of private defence against an act done, or attempted to be done by a public servant, or other person by the direction of a public servant, as such, unless he knows, or has reason to believe, that the person doing the act is such public servant or that the person doing the act is acting by such direction or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded. (Explanation 1 & 2) The right of private offence of the body extends to the voluntary causing of death or of any other harm to the assailant in a case of; (Section 93) 1. Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; 2. Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; 3. An assault with the intention of committing rape; 27 P a g e