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.
Aggravated Burglary
Basil could be charged with aggravated burglary, contrary to the Theft Act 1968 s.10. This is satisfied by demonstrating that a burglary was committed and at the time of the burglary a weapon was present. The offence of burglary contrary to the Theft Act s.9 as amended by Criminal Justice Act 1991, s.26(2) was committed, covered under s9(1)(b). To satisfy the actus reus of the crime it must be shown that Basil made ‘an effective and substantial entry (Collins) Having entered the caravan this is clearly satisfied. It must then be shown that Alan entered as a trespasser ‘that is to say knowing perfectly well that he had no invitation to enter or reckless of whether or not his entry was with permission. As he is on his way home from school, he obviously does not live there, and as Derek is only alerted to his entry by the suspicious noises,it appears that Basil has been given no permission to enter, one can infer that he is a trespasser, and the other element, that he must enter a building is clearly satisfied as he is inside the caravan. 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).
The mens rea has two elements. The appropriation must be deemed ‘dishonest’ ‘according to the standards of reasonable and honest people what was done was dishonest …and if it was…whether the defendant himself must have realised that what he was doing by those standards was dishonest (Ghosh) Being educationally subnormal, perhaps Basil is not aware that such standards are dishonest, thus such a charge is unlikely to succeed. If it did there it must also be proved that Basil intended to permanently deprive Derek of the money, which would be similarly difficult.
Criminal Damage
Basil could also be charged with criminal damage contrary to s.1 of the Criminal Damage Act 1971 for the window that he smashes. The actus reus is clearly satisfied as a window is smashed, thus damaging it. The mens rea occurs as whilst there is no direct intention to smash the window, the doctrine of transferred malice can be applied. This is because, by throwing a metal door stop at the wall it is virtually certain consequence that some form of damage will occur to the wall, albeit a minor scratch, and even if only a small and temporary blemish, this still classifies as criminal damage however minimal (Hardman v CC of Avon & Somerset), and as damage did in fact occur to the window, following Latimer, as the act caused is the same as intended, the crime has been committed.
He could also be charged with criminal damage contrary to s.1 of the Criminal Damage Act 1971 for there are vase that he knocks over. With the external element of damage caused satisfied. This was committed in the course of his search and accidental, thus Caldwell recklessness must be established. The two stage test states that the accused’s actions must have created a risk of a consequence obvious to others, and the accused failed to give thought to it. Following Elliot v C (a minor), it was held that ‘obvious risk’ means obvious to the reasonable person, and following this case where a 14 year old girl with disabilities was convicted of arson through recklessness, it is likely that Basil would be found guilty of criminal damage.
Basil may also be have committed murder, for the death of Derek, as he has killed another human being under the Queen’s peace satisfying the actus reus of the crime (AG ref no.3 of 1994). Whilst the initial blow did not cause the death of Derek, Basil still caused the death of Derek, as whilst the mens rea for murder were absent at the actual killing, as long as they existed in a series of continuing acts, the contemporaneity has still been formed (Church) and he has the direct intention to cause grievous bodily harm by lunging at Derek with a cricket bat, thus satisfying the malice aforethought requirement (Moloney) necessary to for Mens Rea.
Being ‘educationally subnormal’ Basil could rely on the defence of insanity, and under the circumstances, whether the defendant raises it or not, the Judge is entitled to raise it as a defence. Also, the prosecution are only required to prove the actus reus of the crime and not the mens rea. (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.
