Recklessness: the House of Lords and the criminal law

Legal Studies ◽  
1981 ◽  
Vol 1 (3) ◽  
pp. 267-286
Author(s):  
Jenny McEwan ◽  
St. John Robilliard
Keyword(s):  
Criminal Law ◽  
Criminal Court ◽  
Mens Rea ◽  
Criminal Cases ◽  
House Of Lords

‘The House of Lords has a dismal record in criminal cases. All too often their lordships’ decisions have to be reversed by legislation…the present decision could well be another'.In two recent criminal appeals of major importance on the meaning of mens rea, Caldwell and Lawrence, the House of Lords has departed so far from the academically accepted deffition of ‘recklessness’, that Professor Smith is driven to ask, ‘Can we really afford the House of Lords as an appellate criminal court?’. Such desperation surely indicates that their Lordships have got things badly wrong and it is our purpose in this article to examine whether this is indeed the case.

scholarly journals s.V Modalities, Ch.16 A Criminological Approach to the ICC’s Control Theory

2020 ◽  
Author(s):  
Smeulers Alette
Keyword(s):  
Control Theory ◽  
Criminal Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Social Reality ◽  
Criminal Court ◽  
Mens Rea ◽  
The Social ◽  
Actus Reus ◽  
The Individual

This chapter tackles the Control Theory of Perpetration, a German-inspired mode of participation that is applied only by the International Criminal Court (ICC). The Control Theory, developed by the German scholar Claus Roxin, provides a doctrinal apparatus for distinguishing between principal perpetrators and mere accomplices. Instead of defining the principal perpetrator as the individual who performs the actus reus of the offence, or who has the mens rea for the offence, the Control Theory states that they who control the crime are the principal perpetrator, even if that person uses another individual, or even an organization, to carry out the crime. Although much has been said of this mode of liability, this chapter considers a far broader question: whether the Control Theory as applied by today’s ICC (or by other courts that have adopted it) accords with the social reality of how atrocities are committed. In other words, this chapter does not consider whether the Control Theory is a good criminal law theory, but rather whether it could pass a criminological test..

Lawmakers, Law Lords and Legal Fault: Two Tales from the (Thames) River Bank: Sexual Offences Act 2003; R v G and Another

2004 ◽  
Vol 68 (2) ◽  
pp. 130-149 ◽  
Author(s):  
Mitchell Davies
Keyword(s):  
Criminal Law ◽  
Mens Rea ◽  
Sexual Offences ◽  
River Bank ◽  
Subjective Meaning ◽  
Serious Crime ◽  
House Of Lords ◽  
Sexual Offences Act 2003 ◽  
Thames River ◽  
Different Order

This article examines the conflicting approaches of Parliament and the senior courts to the need for mens rea in relation to those offences which are seriously criminal in character. Prompted by the imminent enactment of the Sexual Offences Act 2003 and the recent decision of the House of Lords in R v G and Another, the conclusion is reached that whilst the senior courts have become ever more sensitive to the need for true mens rea to be insisted upon as a precursor to liability for any serious crime, Parliament, in enacting the Sexual Offences Act 2003, has shown itself, in this context at least, to have priorities of a very different order. In applying a purely subjective meaning to the term reckless it is argued however that their Lordships in G have gone too far and have made prosecutions under the Criminal Damage Act 1971 for unintentionally caused criminal damage potentially unwinnable as well as having thereby perpetuated the definitional plurality of this much litigated mens rea term. The reader is accordingly guided to the conclusion that G is far from being the last word on the meaning of recklessness in English criminal law.

Actus Reus

Criminology ◽  
2021 ◽  
Author(s):  
Michelle Foster
Keyword(s):  
Criminal Law ◽  
Criminal Court ◽  
Mens Rea ◽  
Contractual Obligation ◽  
The Third ◽  
Actus Reus ◽  
Criminal Intent ◽  
The Individual ◽  
Affirmative Defense ◽  
Do So

Actus reus is an area of substantive criminal law and is an act by an individual that is deemed to be improper by societal laws. It is one of the elements of a crime and works in connection with mens rea or criminal intent. Illegal or immoral thoughts cannot be legally punished, but once those thoughts are put into action, there is a concurrence between the two elements. There are three types of actus reus, which include a voluntary act, possession, and omission. Within actus reus voluntariness is presumed on the part of the actor. If an accused party wishes to claim an action was involuntary, then an excuse defense would be necessary in criminal court. Possession is also a type of actus reus when an individual is in the possession of or has the possession of an item that is known by the individual to be illegal under the law. As an example, if a person is wearing a jacket that contains a bag of marijuana in the pocket and the person knows that the substance is illegal, then even if the marijuana is not the wearer’s marijuana, the action of possession is fulfilled due to the marijuana being an illegal substance. Omission is the third type of criminal act. Omission is satisfied when a person does not act when that person is required under law to do so. A person would be required to act when there is a contractual obligation to act or a duty to act, such as would be the case of a parent and a child. The parent has a duty to act to protect the child from harm. A defense to possession or omission is possible. Defenses include an alibi or an affirmative defense. A justification defense is one type of an affirmative defense where the accused party claims the action was not criminal given the circumstances of the situation such as duress, etc. An excuse defense is the second type of an affirmative defense in which the accused claims they should not be held accountable for the improper conduct for a reason such as age, intoxication, or insanity. Incomplete offenses, known as inchoate crimes, have their own section within criminal law but are treated similarly to completed offenses.

Pleas of the Crown

2019 ◽  
pp. 562-578
Author(s):  
John Baker
Keyword(s):  
Criminal Law ◽  
Civil Law ◽  
Mens Rea ◽  
Criminal Cases ◽  
Modern Times ◽  
Inns Of Court ◽  
History Of

This chapter examines how principles of substantive criminal law emerged, given that the mechanisms which brought about the development of civil law were absent in criminal cases until modern times. Lectures in the inns of court were significant, supplemented from Tudor times by treatise writers and by occasional discussions among the judges in Serjeants’ Inn. Some general principles of liability evolved from medieval times in relation to mens rea, particularly the capacity of infants and the insane, the liability of accessories, and the position of those involved as principals in common enterprises. The second part traces in outline the history of treason, murder, chance medley, manslaughter, burglary and larceny.

Lawmakers, Law Lords and Legal Fault: Two Tales from the (Thames) River Bank: Sexual Offences Act 2003; R v G and Another

1995 ◽  
Vol 68 (2) ◽  
pp. 130-149
Author(s):  
Mitchell Davies
Keyword(s):  
Criminal Law ◽  
Mens Rea ◽  
Sexual Offences ◽  
River Bank ◽  
Subjective Meaning ◽  
Serious Crime ◽  
House Of Lords ◽  
Sexual Offences Act 2003 ◽  
Thames River ◽  
Different Order

This article examines the conflicting approaches of Parliament and the senior courts to the need for mens rea in relation to those offences which are seriously criminal in character. Prompted by the imminent enactment of the Sexual Offences Act 2003 and the recent decision of the House of Lords in R v G and Another, the conclusion is reached that whilst the senior courts have become ever more sensitive to the need for true mens rea to be insisted upon as a precursor to liability for any serious crime, Parliament, in enacting the Sexual Offences Act 2003, has shown itself, in this context at least, to have priorities of a very different order. In applying a purely subjective meaning to the term reckless it is argued however that their Lordships in G have gone too far and have made prosecutions under the Criminal Damage Act 1971 for unintentionally caused criminal damage potentially unwinnable as well as having thereby perpetuated the definitional plurality of this much litigated mens rea term. The reader is accordingly guided to the conclusion that G is far from being the last word on the meaning of recklessness in English criminal law.

scholarly journals MENS REA AS THE BASIS OF DIVERSION IN THE CHILD CRIMINAL JUSTICE SYSTEM BASED ON RESTORATIVE JUSTICE

2021 ◽  
Vol 9 (04) ◽  
pp. 62-67
Author(s):  
Nur Chasanah ◽  
◽  
Arief Darmawan SU ◽  
Otto Yudianto ◽  
◽  
...  
Keyword(s):  
Restorative Justice ◽  
Criminal Law ◽  
Justice System ◽  
Research Method ◽  
Mens Rea ◽  
Criminal Cases ◽  
Legal Research ◽  
Government Regulations ◽  
Criminal Penalty ◽  
Criminal Procedure Law

Restorative justice or more precisely keadilan restoratif in the Indonesian context is based on the principle of building joint participation between perpetrators, victims, and community groups in resolving a criminal act. The problem has been that in the formulation of the laws and government regulations diversion (diversi) is carried out if a criminal act is committed by a child who is punishable by imprisonment under seven years other than that if criminal acts that were committed by a child is not a repetition of criminal acts (recidive). A research using a normative legal research method found that through legal findings or rechtsvinding (penemuan hukum), judges can formulate criminal law policies through their decisions based on mens rea. Tt is a must for judges to settle criminal cases with a child of 12-years-old age perpetrator and/or the delinguent actor is a recidive via diversion. The provisions of Indonesian criminal procedure law dicates that judges are also obliged to seek diversion towards the settlement of all criminal cases whose actions were committed by children, both those with a criminal penalty over seven years and/or recidive or those who does not included in the two categories.

Errors in the Application of the Criminal Law on Certain Corruption Crimes in Practice of Appeal and Cassation Courts

2020 ◽  
Vol 6 ◽  
pp. 72-80
Author(s):  
A. V. Galahova ◽  
Y. I. Antonov ◽  
Keyword(s):  
Criminal Law ◽  
Criminal Case ◽  
Criminal Cases ◽  
Retroactive Effect

The article is devoted to systematization of generalized appeal and cassation practice on errors in criminal cases of corruption crimes in 2017–2018. Errors are systematized in such areas as the unfairness of the sentence; the absence of a crime in the act; inconsistency of the conclusions of the court set out in the sentence, the actual circumstances of the criminal case; incorrect application of the provisions of the criminal law in time and its retroactive effect.

Theft and Fraud Committed Using Electronic Payment Systems (Regional Judicial and Investigative Practice)

2020 ◽  
Vol 2 ◽  
pp. 66-79
Author(s):  
S. L. Morozov ◽  
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Criminal Law ◽  
Legal Analysis ◽  
Payment Systems ◽  
Criminal Cases ◽  
Electronic Payments ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Russian Federation

The advent of the electronic currency and the effecting of electronic payments has caused new forms of thefts and types of acquisitive crimes. The judicial investigative practice of criminal cases of embezzlement committed using bank cards and other types of electronic payments has encountered problems with the qualification of such acts. The author identifies the most common enforcement problemsand their causesby a retrospective study of judicial practice, the changing norms of the criminal law. At the same time, a ten-year period of work of the judicial investigating authorities was studied. On the basis of traditional general scientific methods of cognition, as a result of a system-legal analysis of the considered set of specific situations, the author gives an author's view of the complex of causes that cause a lack of uniformity in judicial investigative practice. Using the hermeneutic approach, the author paid special attention to the application by the courts of the interpretation of the criminal law by the Plenum of the Supreme Court of the Russian Federation in different years. In conclusion, ways of resolving contentious issues of qualification of thefts and fraud in the field of electronic means of payment are proposed. It has been ascertained that high-quality and uniform law enforcement can provide additional clarification on the delimitation of related and competing theft from the Plenum of the Supreme Court of the Russian Federation. It is concluded that in general, the current concept of the Plenum of the Supreme Court of the Russian Federation does not contain contradictions with the novels of the criminal law, but can be improved. The rationale and edition of possible additions to the relevant decision of the Plenum of the Supreme Court of the Russian Federation are given.

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