criminal law blame steve uglow kent law school

Criminal Law

BlameSteve Uglow

Kent Law School

Act and Intent

•Basic principle is that conduct (or causing a consequence) alone should not be enough -requires state of mind which is ‘blameworthy’:

– D must normally be shown to have relevant mental element at the time that act comprising offence is committed

•This mental element is a FACT that has to be proved

•Actus non fit reus nisi mens sit rea

– the act is not to be regarded as ‘guilty’ unless the mind is also guilty

Blameworthy states of mind

•Different offences have different mental elements

– for example, some require INTENT and others merely FORESIGHT

• Intention to act or to cause a consequence - this is purposive conduct. If offence requires intent, nothing less will do – Whybrow

• Foresight or awareness that there is a risk of acting or causing the consequence - Cunningham 1957

•with intent and foresight, court is interested in the actual state of D’s mind – we refer to this as: subjective state of mind

Blameworthy states of mind

• Other offences do not require subjective states of mind at all

– some require NEGLIGENCE

• where D does not recognise the risk of her acts but a reasonable prudent person would have recognised it

» driving without due care and attention - s.3 RTA88

– some require GROSS NEGLIGENCE»manslaughter

• with these, court is not interested in the actual state of D’s mind but in assessing what a ‘reasonable person’ might have thought– we refer to this as: objective state of mind

Blameworthy states of mind

• There may be other aspects of the defendant’s mental state:

– where offence requires the accused knows or believes in certain circumstances

• handling stolen goods: prosecution must show that D was in possession of the goods, knowing or believing them to be stolen - Theft Act 1968 s.22

• bigamy: ..whosoever, being married, shall marry any other person, during the life of the former husband or wife - OAPA 1861 s.57

– nb intent and knowledge are different:

» D intends to go through a ceremony of marriage but knows that she is already married to someone else

Where blame is not in issue

• Strict liability offences do not require prosecution to prove ANY mental state

– large number of statutes do not use language of ‘knowingly’, ‘intentionally’ etc

– in theory common law has presumption of mens rea

• Sweet v Parsley (1970) - s.5 Dangerous Drugs Act 1965

– involved in management of premises used for smoking cannabis - House of Lords held D had to know

• but courts often exempt prosecution from need to prove mens rea - ie impose strict liability

– whether strict liability depends on the court’s construction of statute: Gammon (1985), Lim Chin Aik (1963)

Strict liability

•Surely strict liability is against principle of legality? natural justice? common law?

– true but remember parliamentary sovereignty

– but parliament must act in accordance with ECHR?

•therefore breach of Article 6(2) – presumption of innocence?

– not necessarily - ECHR does accept strict liability in some cases: eeg Salabiaku v France (1988) - relates to seriousness of offence and severity of punishment

Reversing burden of proof

• Strict liability related to another technique:

– reversing burden of proof - D must proof ‘innocence’

• may contravene Article 6 ECHR - right to a fair trial

• also at common law, Privy Council in Lee Kwong-kut (1993)

– possessing cash suspected of being stolen. D had to disprove guilt - prosecution should have responsibility of proving ‘essential elements of offence’

• see House of Lords in Lambert [2001]:

– s.28 Misuse of Drugs Act 1971 - D has to prove that did not know controlled drug - but evidential burden only

Which mental state applies?

•Subjective, objective, strict liability????

– no single standard for all offences - offence might:

• require intention OR

•sufficient to show gross negligence OR

•be an offence of strict liability

– requires close reading of the statute creating the offence OR of the common law

Which mental state?

•But different mental states might apply to different elements of the SAME offence!

– s.55 Offences Against the Person Act 1861

• …whosoever shall unlawfully take…any unmarried girl being under the age of 16 years out of the possession and against the will of her father or mother

Which mental state?

•Prince (1875) was convicted under s.55 - his defence was that he believed the girl was over 16 and that reasonable people would have also held that belief

– note different elements of offence:

• take girl: must be an intention to take the girl (defence if she smuggled herself into your car?)

• out of parental possession: must know that she was in the possession of her parents

• under 16: but D is strictly liable as to age - reasonable belief is no defence

A further thought…….

•In analysing a situation, do not say ‘That’s intention’ or ‘That’s grossly negligent’.

•Mental states are not abstractions but relate to an act or consequence:

– intention to do or cause what?

– negligence as to what outcome?

– knowledge of what circumstance?

Mens rea and motive

•Do not confuse mens rea with motive:

– reason why D commits the act is motive

• logically separable from whether D intended act or consequence or foresaw the consequence

Doctor who prescribes pain-killers to terminally ill patient and aware that effect is to shorten life– motive is to lessen pain– recognition that act shortens life - thus ‘intending’ to kill?

• motive provides circumstantial evidence that D committed offence and had necessary mens rea

D has taken out large life insurance policy on wife shortly before ‘accidental’ shooting……

Malice aforethought

•Concentrate on the mens rea for murder - known as malice aforethought:

– intent to kill or cause grievous bodily harm

•case law is applicable to any other offence which requires ‘intention’ as an element

•3 issues:

– what constitutes ‘intent’?

– why is ‘intent to cause GBH’ sufficient?

– should the standard be objective or subjective?

1. Intent versus Foresight

• A person may kill another:

– with the purpose of ending that person’s life

– not wishing V’s death but being certain that death will result

– not wishing V’s death but believing it highly probable that death will result

– not wishing V’s death but believing it probable or maybe possible that death will result

– without realising that there’s any risk at all

• Which state is sufficient for malice aforethought?

[Digression: transferred malice]

•Another general principle:

– that where you aim to shoot A but miss and hit and kill B ‘by accident’, you are still liable to be convicted of murder:

• this is the doctrine of transferred malice - Latimer (1886)

• NB the harm caused must coincide with the malice being transferred

• see AG’s Reference 3/94 (1997) and Slimmings (1999) Crim LR 69

1. Intent versus Foresight

•Back to intent:

– Hyam (1976)

•accused sought to frighten lover’s new mistress to leave area. D realised that serious harm was a probability

– is foresight of high probability of death or GBH

– a) equivalent to intent? OR

– b) alternative form of malice aforethought?

1. Intent versus Foresight

•Previously Court of Appeal had treated ‘intent’ as specific and purposive - foresight was not enough – Belfon (1976)

– but HL in Hyam (1976) held that foresight of high probability of death or GBH was equivalent to intent

– reconsidered by HL in Moloney (1985) and Hancock (1986)

– murder requires intent and foresight is not enough

1. Intent versus Foresight

•But in murder trial, often evidence that D foresaw death or serious harm, albeit not wishing it.

– how is such evidence to be left to the jury?

•Jury must find as a fact either that D intended to kill or intended to cause GBH

– BUT they are entitled to infer from evidence of foresight that D had such an intent

1. Intent versus Foresight

•Nedrick (1986) in Court of Appeal:

– D might intend a result albeit not desiring it

– Jury must consider:

• how probable was the consequence?

• did D foresee the consequence?

– if D did NOT foresee, D cannot have intended it

– if D did foresee but thought risk slight, jury might easily infer that D did not intend it

– if D foresaw death as virtually certain, this is fact from which jury may infer D intended that death

1. Intent versus Foresight

•Woollin (1998):– accused throws 3 month old son onto hard surface

–House of Lords approve Nedrick but simplifies:

• jury are not entitled to find necessary intent unless consequence was ‘virtual certainty’ AND

• D appreciated that this was the case

2. Intent to cause GBH

•General principle of correspondence:

– mens rea should correspond to actus reus

•Murder is exception to this - intent to cause GBH is sufficient mens rea for murder: Cunningham (1982) but read Diplock in Hyam

2. Intent to cause GBH

•Explanation to be found in the history:

– common law always treated a killing in the course of a felony (eg burglary) as murder regardless of any intent to kill - this was the felony/murder rule

– this rule was abolished by s.1 Homicide Act 1957 which said that a killing in the course of another offence was not murder unless D possessed the normal malice (express or implied) for murder

2. Intent to cause GBH

– in Vickers (1957) D argued that killing was in the course of another offence (I.e. GBH) and there was no intent to kill. Court of Appeal held that intent to cause GBH was ‘implied’ malice

– but what is being ‘implied’? Can only be intent to kill - thus CA is engaged in the same logical reasoning which existed in the felony murder rule and which was abolished in 1957

– but we’re stuck with it! Cunningham

3. Subjective or Objective?

• In Smith (1961), the House of Lords held that a person is guilty of murder where:

– a reasonable person would have seen death as the natural and probable consequence

– effect was that D’s mental state was irrelevant - judged objectively by what a reasonable person would have contemplated - irrebuttable evidential presumption

3. Subjective or Objective?

•Criminal law dithers between objective and subjective tests depending on offence but for murder?

•Smith is overturned by s.8 Criminal Justice Act 1967:

A court or jury….shall not be bound to infer that he intended or foresaw a result …by reason only of its being the natural or probable consequence…but…shall decide whether he did intend or foresee that result by reference to all the evidence...

3. Subjective or Objective?

•s.8 mentions ….by reference to all the evidence…

– suggests that jury must decide as a fact whether D possessed the necessary intent but may use evidence that a reasonable person would have intended the result as a guide. This would be a rebuttable inference (see Byrne’s judgment in Court of Appeal in Smith)

•Despite wording of s.8, courts direct juries only purely subjective lines without reference to what a reasonable person may have intended.

The Age of Innocence

- by Edith Wharton

The Age of Innocence

- by Edith Wharton

The Age of Innocence

時代背景介紹1870~1920

維多利亞時代的社會價值觀

≡ 婚姻= 婚姻被視為一種商業交易= 互補觀 瘦而冷酷 vs. 豐滿而熱情 ; 心直口快 vs. 冷靜謹慎

≡ Rules of courting- 遵照之以維持名聲= 階層 : 下層人必須透過中間人來認識上層人 上層人在介紹後得以不保持熟稔= 性別 : 女人不得單獨與非親戚男人同乘封閉馬車 女人不得與未婚男子共處一室 社會不鼓勵女人展現智慧及對政治的興趣

女性地位的提升

≡ 第十九修正案浪潮促進女性自覺 ≡ 工作機會大幅提升

= 原男屬職位平等化 , 開放女性謀職空間– ex: 木匠、石匠、郵差、銀行家等

= 原女屬職位就業率更高 (6.4%~13.3%)– ex: 護士、教師、記者等　

= 出現數種新興女屬職位– ex: 速記員、打字員、百貨公司職員等

女性地位的提升

≡ 女性教育受重視 : 女性入公 (1000%) 、私立 (482%) 機構受教比例大幅增加

≡ 道德觀的解放= 話題解放：控制生育、性娛樂= 社會規範解放：接受稍短髮、揚棄束腹= New Woman:

– 自信 (confident) 、– 獨立 (self-reliant) – 社交面落 落大方 (capable of playing a public role as well as a

private role in society) 　 傳統與新思維的對立 !!

The Summary (1)

≡ Well-ordered Life

= Encounter

= Defended

= Realized

= Dilemma

The Summary (2)

= Struggling

= Marriage

= Re-Encounter

= Frustrating

The Summary (3)

= Domestic Life

= Happiness(?!)

The Author (1)

≡ Edith Wharton= 1862-1937= Edith Newbold Jones to

George and Lucretia Jones = was born in an aristocratic

New York family = was privately educated at

home and in Europe by the governess and the tutor.

The Author (2)

= 1885, Wharton married Teddy Wharton, who was twelve years older than she was .

= 1913, divorced= 1900-1938, created

a lot of novels.

The Author (3)

= 1905, The House of Mirth marked the true beginning of her career.

= 1911, Ethan Frome= WWII, traveled extensively by

motorcar helped with refugees in Paris, and only once again back to America for the Pulitzer prize for The Age of Innocence.

The Author (4)

= The Age of Innocence was considered as her best novel, “Masterful portrait of desire and betrayal set in the New York of her youth”

= A historical novel, and it was titled originally as Ole New York. This novel also describes her own adolescence.

= Edith Wharton hold a salon with the gifted intellectuals like Teddy Roosevelt, F. Scott Fitzgerald and Ernest Hemingway.

= Henry James also influenced her a lot.

The Analysis (1)

≡ The Meaning of The Novel, “The Age of Innocence”= The original source is the distorted expectation

provided by the whole society to both men and women.

= Men: be expected to be some specific professional job.

– no fail can be made in their duties

= Women: innocent wives, mothers and daughters.

The Analysis (2)

≡ The Characters = Named as labels= Mythology reference= External and Internal Differences (May

and Ellen)

The Analysis (3)

≡ May Welland (Mingott)= the peak of spring; Diana, the

goddess of nature.

≡ Countess Ellen Olenska= The rhyme of Helen,

Aphrodite, the ideal of beauty and passion.

≡ Newland Archer= Archery, a pun, ironic name

May and Ellen– Who is innocent?

May Welland Ellen Olenska

Conservative Mingott family

Background was educated and raise in Europe

Innocent, virginal Represented Provocative,

sensual

Appropriated manner, Newland’s proud wife

Gossip comment

Dangerous, a betrayer of marriage.

? Personal

quality

?

討論女性如何面對情欲與社會規範的衝突

The Age of Innocence

VS. The Awakening

當女性情慾與社會規範衝突 ..

≡ Edna - 無法抵抗社會責任而選擇自戕= 勇於面對並重新思考自己身為女人的價值= 原因 : 自我覺醒

≡ Ellen - 自己選擇離開= 自始至終皆抑制守禮= 原因 : 基於對 Newland 及 May 的感情，不

打算成全不倫之戀

Edna vs. Ellen

人格特質 了解自己的需求並勇於追求所屬階層 中產階級 貴族階層

成長背景 傳統 開放

轉變過程 傳統覺醒實現 一直忠於自己想法

情慾事件 外遇 ( 拉力 ) 成為第三者( 推力 )

結果 嘗試 自殺 離開 Newland

Beside madness 　　　 and death..

當女性與社會既定角色衝突

Ellen’s divorce

≡ 原因 : 丈夫的冷落≡ 決定 : 選擇了第三條路– 為自己而活 !

= 離婚= 不被當成財產 ( 用錢買不回 )

≡ 代價 : = 社會的不諒解與閒言閒語= 獨自生活的勇氣

Conclusion

≡ 植物 女人≡ 盆外的鐘形罩 社會中的父系框架≡ 結果：受限、枯萎、突變、破盆而出。≡ 女人的生活永遠籠罩在父系價值觀根

深蒂固的社會當中。≡ 女人必須自己尋求最適其生存之方式。

Innocence Betrayed:Innocence Betrayed:

Overview of Typical Overview of Typical Reactions of Children Who Reactions of Children Who are Victims are Victims of Sex Traffickingof Sex Trafficking

Cheryl Guidry Tyiska

The Big PictureThe Big Picture

Maslow’s Hierarchy of Human Needs

Adaptive Capacities Stressed by:– Acute Crisis Compounded by

Chronicity and Enduring Nature of Trafficking

– Basic Human Needs Not Being Met

More of the Big PictureMore of the Big Picture

Symptoms of Extreme Stress Impact on Health and GrowthReactions Often Relived Through

Developmental StagesTrauma May be Accompanied by

Ongoing Crises and Challenges in Life

Physical RamificationsPhysical Ramifications Chronic Eating and Sleeping

Disturbances Fear of Confinement Diminished General Health and Well-

Being No Experience of Positive Human

Contact Sexual Exploitation and Rape

– Pregnancy– Sexually Transmitted Diseases

Death in Severe Cases

Spiritual RamificationsSpiritual Ramifications

Loss of Faith or Belief System– In God, Other People, One’s Self– Or . . . Never Acquired ?

Loss of TrustLoss of HopeLoss of InnocenceLoss of Values Clarification

Cognitive RamificationsCognitive Ramifications

Lack of Access to EducationMay be Too Young to Process

Information Inability to Understand at Any AgeConfusionBrain Function and Development

ImpactedSocial Functioning Inhibited

Emotional RamificationsEmotional Ramifications

Loss of Control Dependency . . . Or Isolation Fears Helplessness Guilt, Shame and Humiliation

(May be Exacerbated by Egocentrism) Secrecy Entrapment

Emotional (Continued)Emotional (Continued)

OstracismFantasy as Escape from RealityDenial of the FutureNeed to be “Perfect”Withdrawal and DepressionActing Out and RebellionVarious Accommodation

Syndromes

. . . But There is Hope. . . But There is Hope

Scope and Magnitude of the Problem is Beginning to be Acknowledged

Organizations and Government Agencies are Seeking Systemic Solutions

Training is Being Developed for Service Providers

When Your Teen Rejects Your Values

Rick Rood

Parental Reaction to Teen Rebellion

• Denial• Shock• Shame• Fear• Grief• Anger• Guilt

• Denial• Shock• Shame• Fear• Grief• Anger• Guilt

• Acceptance• Openness• Trust• Forgiveness• Love

• Acceptance• Openness• Trust• Forgiveness• Love

The Teen Transition

• Physical changes• Emotional changes• Intellectual changes• Social changes• Search for identity and

independence• Search for values and beliefs

• Physical changes• Emotional changes• Intellectual changes• Social changes• Search for identity and

independence• Search for values and beliefs

The Teen Transition

• Who am I?• Does anyone love me?• Who is God?• Where do I fit in with my friends?

• Who am I?• Does anyone love me?• Who is God?• Where do I fit in with my friends?

It’s a Different World

• Loss of support• Loss of place• Loss of innocence• Loss of absolutes• Loss of heroes

• Loss of support• Loss of place• Loss of innocence• Loss of absolutes• Loss of heroes

Roots of Rebellion

• Nature of adolescence• Temperament• Physiology• Disconnection at home• Parenting style• “X” factor

• Nature of adolescence• Temperament• Physiology• Disconnection at home• Parenting style• “X” factor

Response to Rebellion

• End the blame game• “Search me, O God…”• Live your life• Make love your aim• Guide toward responsible

maturity• Release them to God

• End the blame game• “Search me, O God…”• Live your life• Make love your aim• Guide toward responsible

maturity• Release them to God

Parenting Styles

• Autocratic– strong control, little support

• Permissive– strong support, little control

• Indifferent– little or no control, little or no support

• Relational/Authoritative– strong support, appropriate control

• Autocratic– strong control, little support

• Permissive– strong support, little control

• Indifferent– little or no control, little or no support

• Relational/Authoritative– strong support, appropriate control

Teaching through Choices

and Consequences

• Increasing choices• Natural consequences• Logical consequences

• Increasing choices• Natural consequences• Logical consequences

Primary Influencers on Teenagers

1. Parents2. Extended family3. Adults outside the

home4. Same age peers5. Media

1. Parents2. Extended family3. Adults outside the

home4. Same age peers5. Media