Judgment
The Court of Appeal acknowledged that the Caldwell test had been criticised and had not been applied in a number of Commonwealth jurisdictions and saw great force in these criticisms but held that it was not open to it to depart from it.
That Court agreed to refer upwards to the Judicial Committee of the House of Lords (the highest court) where Lord Bingham, giving the leading opinion of the unanimous five-judge decision, saw the need to modify (in Caldwell) 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. [Emphasis added] [1]
This brings the test back to a subjective standard so that defendants can be judged on the basis of their age, experience and understanding rather than on the standard of a hypothetical reasonable person who might have better knowledge and understanding.
Application
In Booth v Crown Prosecution Service (2006) All ER (D) 225 (Jan), the Divisional Court upheld the defendant pedestrian's conviction of an offence of Criminal Damage that, by rashly dashing into the road, he recklessly damaged the vehicle that hit him.
British criminal law senior academics have written, in publications reviewed by an independent editorial team, this result must be correct if a pedestrian does actually consider the possibility of damage to any vehicle that might become involved in an accident, but it seems more likely that, if the defendant was aware of the risk of going into a road without looking, the overwhelming result learnt through experience or a repeated teaching would be the risk of self-injury. On analysing the rule in R v G the second limb would not seem to apply without imputing to people walking into the road a new teaching, which may require extrinsic evidence – such as an active campaign against jaywalking in a district or region.
In criminal law, mens rea is the mental state of the crime committed and the legal determination of a crime may depend upon both a mental state and actus reus, like the designation of a homicide as murder is a matter of intention to commit a crime or in some jurisdictions knowledge that one's action would cause a crime to be committed. The mitigation of culpability under some established legal doctrines may reduce the severity of some criminal charges, and so mental state is an element of most crimes, other than crimes of strict liability.
Entrapment is a practice in which a law enforcement agent or agent of the state induces a person to commit a "crime" that the person would have otherwise been unlikely or unwilling to commit. It "is the conception and planning of an offense by an officer or agent, and the procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion or fraud of the officer or state agent".
In criminal law, criminal negligence is an offence that involves a breach of an objective standard of behaviour expected of a defendant. It may be contrasted with strictly liable offences, which do not consider states of mind in determining criminal liability, or offenses that requires mens rea, a mental state of guilt.
Malice is a legal term which refers to a party's intention to do injury to another party. Malice is either expressed or implied. For example, malice is expressed when there is manifested a deliberate intention to unlawfully take away the life of a human being. Malice is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. Malice, in a legal sense, may be inferred from the evidence and imputed to the defendant, depending on the nature of the case.
Section 11 of the Canadian Charter of Rights and Freedoms is the section of the Canadian Constitution that protects a person's legal rights in criminal and penal matters. There are nine enumerated rights protected in section 11.
In criminal law and in the law of tort, recklessness may be defined as the state of mind where a person deliberately and unjustifiably pursues a course of action while consciously disregarding any risks flowing from such action. Recklessness is less culpable than malice, but is more blameworthy than carelessness.
In criminal law, intent is a subjective state of mind that must accompany the acts of certain crimes to constitute a violation. A more formal, generally synonymous legal term is scienter: intent or knowledge of wrongdoing.
Common assault is an offence in English law. It is committed by a person who causes another person to apprehend the immediate use of unlawful violence by the defendant. In England and Wales, the penalty and mode of trial for this offence is provided by section 39 of the Criminal Justice Act 1988.
In law, an omission is a failure to act, which generally attracts different legal consequences from positive conduct. In the criminal law, an omission will constitute an actus reus and give rise to liability only when the law imposes a duty to act and the defendant is in breach of that duty. In tort law, similarly, liability will be imposed for an omission only exceptionally, when it can be established that the defendant was under a duty to act or duty of care.
Self-defence is a defence permitting reasonable force to be used to defend one's self or another. This defence arises both from common law and the Criminal Law Act 1967. Self-defence is a justification defence rather than an excuse.
In the criminal law of Australia, self-defence is a legal defence to a charge of causing injury or death in defence of the person or, to a limited extent, property, or a partial defence to murder if the degree of force used was excessive.
R v Tutton, [1989] 1 S.C.R. 1392 was a decision of the Supreme Court of Canada on the mens rea requirements for criminal offences related to manslaughter. The Court was split three to three over whether two parents, believing that their diabetic child was cured by God, are guilty of manslaughter for intentionally failing to give the child his insulin.
Duress in English law is a complete common law defence, operating in favour of those who commit crimes because they are forced or compelled to do so by the circumstances, or the threats of another. The doctrine arises not only in criminal law but also in civil law, where it is relevant to contract law and trusts law.
In the English law of homicide, manslaughter is a less serious offence than murder, the differential being between levels of fault based on the mens rea or by reason of a partial defence. In England and Wales, a common practice is to prefer a charge of murder, with the judge or defence able to introduce manslaughter as an option. The jury then decides whether the defendant is guilty or not guilty of either murder or manslaughter. On conviction for manslaughter, sentencing is at the judge's discretion, whereas a sentence of life imprisonment is mandatory on conviction for murder. Manslaughter may be either voluntary or involuntary, depending on whether the accused has the required mens rea for murder.
Criminal damage in English law was originally a common law offence. The offence was largely concerned with the protection of dwellings and the food supply, and few sanctions were imposed for damaging personal property. Liability was originally restricted to the payment of damages by way of compensation.
English criminal law concerns offences, their prevention and the consequences, in England and Wales. Criminal conduct is considered to be a wrong against the whole of a community, rather than just the private individuals affected. The state, in addition to certain international organisations, has responsibility for crime prevention, for bringing the culprits to justice, and for dealing with convicted offenders. The police, the criminal courts and prisons are all publicly funded services, though the main focus of criminal law concerns the role of the courts, how they apply criminal statutes and common law, and why some forms of behaviour are considered criminal. The fundamentals of a crime are a guilty act and a guilty mental state. The traditional view is that moral culpability requires that a defendant should have recognised or intended that they were acting wrongly, although in modern regulation a large number of offences relating to road traffic, environmental damage, financial services and corporations, create strict liability that can be proven simply by the guilty act.
Fault, as a legal term, refers to legal blameworthiness and responsibility in each area of law. It refers to both the actus reus and the mental state of the defendant. The basic principle is that a defendant should be able to contemplate the harm that his actions may cause, and therefore should aim to avoid such actions. Different forms of liability employ different notions of fault, in some there is no need to prove fault, but the absence of it.
Rape is a statutory offence in England and Wales. The offence is created by section 1 of the Sexual Offences Act 2003:
(1) A person (A) commits an offence if—
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
(3) Sections 75 and 76 apply to an offence under this section.
(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.
The omissions of individuals are generally not criminalised in English criminal law, save in many instances of a taking on of a duty of care, having contractual responsibility or clearly negligent creation of a hazard. Many comparator jurisdictions put a general statutory duty on strangers to rescue – this is not so in English law. Defenders and reasoners of the position regard it as wrong for the criminal law to punish people in many circumstances for committing no physical act, which it is argued would be an infringement on human autonomy. Academics arguing for reform argue that a social responsibility to assist others should exist, particularly where there would be no danger to the rescuer.
Culpable and Reckless Conduct is a common law crime under Scots Law.
