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What offences has Basil (who is educationally subnormal) committed in the following circumstances?

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Introduction

(4) What offences has Basil (who is educationally subnormal) committed in the following circumstances? On his way home from school, Basil experiments with a box of matches that he has taken from home earlier in the day, trying in particular to set alight various substances that he finds in Derek's caravan. Since the box has become soggy, nothing does catch fire. Basil then decides that he will take any money that he can find, and searches a drawer but finds none. In the course of his search, he knocks over and destroys an extremely rare and valuable pot-plant. Irritated by his lack of success, Basil throws a metal door stop in the general direction of the wall of the caravan. The door stop strikes a window (which Basil did not see because it was hidden behind a curtain) shattering the glass and striking Derek who has come to investigate suspicious noises in his caravan. Derek remonstrates loudly and Basil becomes thoroughly alarmed. He takes up a cricket bat and, as Derek lunges at him, strikes him a severe blow on the head, knocking Derek unconscious. Thinking that he has killed Derek, Basil takes two large plastic refuse sacks and secures these around Derek's body. Derek dies of asphyxiation. Firstly, if Basil is under the age of 10, he may not be held liable for any of criminal offence. ...read more.

Middle

Under s.9(1)(b) the ulterior offence, that the accused should steal or attempt theft must also be satisfied. This occurs as he aims to 'take any money he can find', and the actus reus of theft contrary to s1 of the Theft Act 1968 has three elements. The appropriation of property, under s.3(1) of same act states that an appropriation is any assumption of the rights of an owner, and this assumption requires only some rights of the owner(Gomez). As Alan picks up the money such rights have been assumed. Property, as defined in s.4(1) 'includes money'. The requirement that the property belonging to another as specified in s.5(1) is present as the money belongs to Derek Basil did not form mens rea until inside when he decides to look for the money, and this is covered under 9(1)(b) style burglary. Aggravated burglary is that Basil had a 'weapon of offence.' Under s.10(1)(b) this is any article used/adapted for use for causing injury. at the time of the burglary. This requirement is clearly satisfied by the use of the cricket bat he pounds Derek with. Whilst the weapon was not brought into the building with him, this does not matter, as it has been held that picking up some scissors in a hospital during a burglary and using them as a weapon will be sufficient grounds for aggravated burglary(A-G's ref no.1 of 2000). ...read more.

Conclusion

(A-G Ref no.3 of 1998). Following McNaghten's case, three things must be established for this defence to succeed. Defect of reason, disease of the mind and not knowing the nature and quality of the act was wrong. Basil obviously had a disease of the mind, as being educationally subnormal; it is covered by the Kemp definition. Due to this condition, even if she 'retained her normal powers of reason' as they are below that of a reasonable person this is still covered by the McNaghten's Rules. (Clarke). As it is required that the defendant must know his act was legally wrong (Windle), it is likely that being a child also, Basil was not aware that the nature and quality of the act was wrong, however this depends on the extent of his mental illness. If that defence were to fail, Basil may rely on the common law defence of self-defence. Here it must be shown that the threat to oneself was imminent (Fegan), clearly it was, as Derek was about to attack him, and it was adequate. Even if Derek wasn't going to cause any serious harm to Basil, following Beckford, if Basil genuinely believed he was going to, this mistake of fact can be admitted. Critique-shortcomings of recklessness distinctions Caldwell unfair on def's in property damage etc, but in personal injury/homicide unfair on victims as no punishment. Whilst freedom given to autonomy in Cunningham, welfare recognised in Caldwell, perhaps one definition of recklessness would be faire, easy for a jury to understand and introduce consistency into law. ...read more.

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