PQ in Actus Reus and Mens Rea + Essay Recklessnes - Formative Assessment - UoB - 72% PDF

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1. Ronny and Reggie were drinking in the pub at 9:00pm when Ronny told Reggie that, as Reggie had not repaid him the money he owed when it was due, he had spread a rumour around town that Reggie’s daughter was a prostitute. Incensed, Reggie left the pub and drove three miles to his house. Reggie g...

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1. Ronny and Reggie were drinking in the pub at 9:00pm when Ronny told Reggie that, as Reggie had not repaid him the money he owed when it was due, he had spread a rumour around town that Reggie’s daughter was a prostitute. Incensed, Reggie left the pub and drove three miles to his house. Reggie got a container of petrol from his garage and drove to Ronny’s house, arriving in the early hours of the morning. Reggie then poured the petrol through the letterbox of Ronny’s house and set it alight. Ronny woke to find his house consumed by fire and smoke. To escape, Ronny jumped from the balcony of his upstairs bedroom. Ronnie suffered serious injuries as a result of the fall and died one week later. Reggie told police that he only wanted to frighten Ronny and teach him not to spread rumours. Discuss the criminal liability of Reggie.

2. “Creating an obvious risk and giving it no thought is, morally, no different to foreseeing such a risk and running it anyway. Both should lead to criminal culpability.” Discuss.

1- Liability of Reggie:

This question requires careful consideration of Reggie's liability for Ronny's death. Death's usual offence is either murder or manslaughter. The starting point of analysis is the actus reus elements. Ronny is a person with no evidence of selfdefence, making the killing unlawful and under the Queen's peace (Coke). The factual causation is established as Ronny would not have jumped from the window and died 'but for Reggie's fire (R v White). However, establishing the legal causation may be problematic; Reggie may argue the presence of an intervening cause breaking the chain of causation, primarily the reaction of Ronny and the one-week prior to Ronny's death. Precedents demonstrated that a victim's reasonably foreseeable and involuntary action would not break the chain of causation (R v Roberts and R v Williams and Davies). Returning to the facts, Ronny's escape was foreseeable, given that the fire was spread all over his house. The facts of the case were silent about any other possible reasonable routes of escape meaning that a reasonable person would have acted like Ronny. Similarly, Reggie will not be able to argue that the death did not occur instantly after the incident, as it is clear that his actions were 'substantial' and 'significant because of death (R v Smith). Considering the mens rea of murder, Reggie made it clear that he did not intend to kill Ronny and merely wanted to frighten him, so he stopped spreading rumors. Reggie did not have a direct intention to either kill or cause GBH to Ronny, but applying the virtual certainty test in Woollin may reveal an oblique intention for murder. The test in Woollin requires first: the action to be virtually specific and the defendant to personally foresee this. Different from the facts of Woollin, Reggie should have virtually foreseen that anyone in Ronny's position would try to escape through any route, regardless of how dangerous it may be, to avoid death. However, it may not be virtually certain that Ronny would die if he jumped from his upstairs bedroom, although it would be certain that he would suffer from some serious injuries (GBH). Accordingly, this will mean that Reggie has the mens rea of murder. However, Reggie may argue a partial defence against murder to reduce his liability to manslaughter through the loss of control. Loss of control is a statutory defence recognised under S 54(1), requiring three elements. In relation to the first element, Reggie may claim that there was a loss of self-control at the time of killing because of the rumours Ronny spread. While the new law of defence of provocation no longer requires the loss of self-control to be 'sudden and temporary' ( Duffy), a more significant delay between provocation and killing is less likely to be deemed a loss of control (R v Ahulwalia). The delay between Reggie knowing about the rumours and his harmful act suggests that he acted out of a 'considered desire for revenge' rather than loss of control as stipulated under S 54(4) (R v Jewell). Nonetheless, assuming Reggie was successful in arguing the loss of self-control, he then can rely on the occurrence of the anger trigger as Ronny was sending false rumors about his daughter S 55(1)(b) (4). As per this Section, the anger trigger is 'attributable to a thing or things done or said (or both) which (a) constituted circumstances of an extremely grave character (rumours about Reggie's daughter), and (b) caused (Reggie) to have a justifiable sense of being seriously wronged' (R v Clinton).

Lastly, the defence of loss of control requires that someone of the same age and sex, with a normal degree of tolerance and self-restraint and in the same circumstances as Reggie, might have reacted similarly S(54)(c). The test is objectively assessed upon the gravity of provocation (DPP v Camplin). Typically, a person with Reggie's circumstances will not attempt to fire the house. Similarly, Reggie will be unsuccessful should he argue that he was not acting in his full capacity as he was drunk. In R v Asmelash, the court held that voluntary intoxication might not be taken into account as a control characteristic, and thus Reggie's response must be measured against a sober person of normal tolerance and self-restraint. In conclusion, Reggie's defence of loss of control is unlikely to be successful since he is unlikely to satisfy the requirements as per S (54), and therefore he will be liable for the murder of Ronny. Words Count: 739

2Criminal law theory requires the presence of a harmful act (the actus reus) and, generally, proof of a particular state of mind ( mens rea), like intention and recklessness. The determination of the state of mind directs the jury to ascertain the level of a defendant's blameworthiness; however, precedents proved not to be an easy task resulting in two opponent schools of thought. Subjectivists determine criminal culpability by considering the intentions or foresight of a defendant, whereas objectivists focus on the defendant's behaviour assessing whether he acted as a reasonable person. Recklessness manifests this conflict as it has been argued that morally a defendant should be criminally culpable for his acts as long as the risk is obvious regardless of his failure to foresee such a result. In general, recklessness' core element is risk-taking. Initially, the courts differentiated between two types of recklessness: the Cunningham recklessness and the Caldwell recklessness. In R v Cunningham, the defendant was convicted of murder as he repeatedly hit the victim with the chair despite his lack of intention to kill. The court adopted the subjective stance in Cunningham by recognising two elements for Cunningham recklessness: firstly, the defendant was aware of the risk that his conduct may cause and secondly, the risk was an unreasonable one for the defendant to take. In Caldwell, the court radically shifted from the subjective test and adopted an objective test deeming a person as reckless where he creates an obvious and serious risk, but he fails to consider the existence of such risk. Case law established that criminal culpability could not be assessed solely on moral blameworthiness (Yip Chiu-Cheung). Nonetheless, it is hard to agree that "creating an obvious risk and giving it no thought is, morally, no different to foreseeing such a risk and running it anyway". While it may be argued that applying the subjective test of Cunningham will disadvantage the victim by acquitting the defendant from his unlawful act merely because he is so angry or self-absorbed, the objective test is more likely to be morally problematic. The Cunningham test follows the choice theory, which is more morally sound despite its criticism, as it criminalises those who are responsible for the things they choose to do. However, the Caldwell recklessness is much more "morally" disadvantageous to the defendant as it criminalises an innocent party who, given his circumstances (i.e. the age as in R v G&R), could not act as a reasonable person and foresee the risk. The authorities following Caldwell reasoning proved to be very immoral and injustice. In Elliott v C , a 14-year old girl of low intelligence was considered criminally culpable as the court applied the Caldwell recklessness test disregarding her mental

incapability. Similarly, in Cooles the defendant's appeal was dismissed as he failed to act as a standard prudent person would do despite his incapacity. The House of Lords, later in the leading authority of R v G&R, abolished the Caldwell recklessness. Lord Bingham stated that the "moral blameworthiness" principle could not allow the objective test to criminalise a defendant who is incapable of foreseeing the risk. While the courts now follow the Cunningham recklessness test, some commentators and academics proposed a more morally sound test for recklessness. Victor Tadros proposed a middle way between objectivists and subjectivists where a defendant fails to realise his action's risks. He argued that the defendant will be reckless if: "the action was of a kind that might carry risks with it according to the beliefs of the individual; and either: (i) given those beliefs the agent failed to fulfil his duty of investigating the risks; or (ii) the agent willfully blinded himself to the existence of the risks." ( Victor Tadros, 2002). Alternatively, Antony Duff suggested a test based on the concept of practical indifference. He argued that the central question would be, did the agent's conduct display a seriously culpable practical indifference to the interests which his action threatened? (Antony Duff, 1990). In conclusion, the subjective and objective tests of recklessness cannot be morally equal and accordingly lead to criminal culpability. The law in recklessness is now clear, and the subjective Cunningham test is followed by all courts marking the injustices of the objective stance. Nonetheless, the adoption of the Cunningham recklessness may bring us to the established conclusion that criminal law is not solely based on “moral blameworthiness”, despite the existnace of some other viable academic suggestions like Tadros and Duff.

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