Restoration of Cunningham Recklessness
The Caldwell recklessness was overruled in the case of G and another, where two defendants age 11 and 12 left after burning paper and threw it into the wheelie-bin of a yard. The fire eventually spread to the buildings which cost approximate damage of £1 million. Neither of them foresaw the risk of destroying the property and genuinely thought the burning paper would extinguished themselves on the concert floor of the yard. It was held that the answer to the certified question
‘can a defendant properly be convicted under s 1 Criminal Damage Act 1971 on the basis the he was reckless as to whether property would be destroyed or damaged when he gave no thought to the risk, but by reason of his age and/or personal characteristics the risk would not have been obvious to him, even if he had thought about it?’
was ‘no’. It was base on four reasons that Cunningham recklessness was restored:
- Conviction of serious crime should base on defendant’s culpable state of mind. It would be ‘clearly blameworthy’ to take an obvious risk, however it is insufficient culpability if the defendant genuinely did not perceive the risk which may occur due to the conduct.
- The Caldwell test was capable of leading to ‘obvious unfairness’.
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Significant judicial and academic criticism on Caldwell and cases which followed it for the sake of judicial precedent.
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Misinterpretation of Parliament’s intention in the decision of Caldwell.
In summary, the test of objective recklessness is no longer use in criminal law.
Standard of Reasonableness
The standard of reasonableness may differ in the sense of higher standard and lower standard for certain group of people. In instances where professional opinions may be needed the doctrine of the reasonable professional has developed. For example children and mentally impaired are usually held to have lower standard of reasonableness. The level of reasonable may be higher for professions which acquire special knowledge such as medical professions. It is only deem to be fair if the defendant is treated equal to his characteristic acquire.
Negligence basically means failure to exercise the degree of care that a reasonable person would exercise under the same circumstances and have legal responsible for any resulting harm. In the sense of gross negligence in criminal law, a very high degree of negligence is required to be proved before the crime is established. Thus if a doctor misdiagnoses a patient, the question "Would a professional acting under the same circumstances, with the knowledge available to the field at the time of the diagnosis, have concluded that the given diagnosis was reasonable?" is posed rather than "Was that diagnosis wrong?"
It is not fair or injustice as whether the reasonable person should be subjectively matched to the accused in cases involving children, and persons with a physical or mental disability as young and inexperienced individuals may not foresee what an reasonable man might foresee, and thus should be judge with regard to a different level of reasonableness.
Provocation
Provocation provides defence for murder in which it reduces the conviction of murder to manslaughter. It is judge base on 2 point, the subjective question whether the accused was provoked to lose his self-control and the objectives question whether a reasonable man would have been provoked to lose his self-control and do as he did. Also, there must be a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her not master of his mind and the loss of control need to be complete. As the approach test was rather objective in the early years, it does not take into account of the characteristic of the defendant. This raise rigidity in which the defendant may have a condition as such as low intelligence or mentally distress in which they may react differently. The defence could only be established base on the reaction of the reasonable man if he had been provoked in such way. In short under the objective test, the reasonable man bore no characteristic of the defendant. This situation was however reversed by s 3 of the Homicide Act 1957 and it was reaffirmed in Camplin that the characteristic of the defendant should be imputed to the reasonable man, but only certain characteristic could be taken into account.
As per the judgement by Lord Diplock in Camplin, the reasonable man is define as “an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today.” It emphasised self-control as the criteria of a hypothetical reasonable man. This raise problem to categorise which characteristic are classified as relevant to the subjective arm of this reasonableness test which would affect the level of self-control.
Exceptional of Characteristic in Provocation
Base on the characteristics of a reasonable man, some people will find that certain conducts are more provoking than other while others may have higher level of tolerance. For example some battered women have high tolerance in which they could tolerate physical violence for years. The question arises on how to judge a case where the level or self-control of every person varies and what characteristics should be taken into account for the purpose of the test of reasonableness as simply regarding the defendant’s characteristics may lead to injustice. If every characteristic is to be taken into account, there is possible that the chances to escape conviction would be greater.
Thus the principle on which characteristic to be taken account in the reasonable man test was later decided in R v Bowen. The irrelevant characteristics are susceptibility, self induced abuse (such as drugs and alcohol), or low intelligence quotient falling short of such an illness or condition. Characteristics which could put the defendant into less resistant of pressure should be taken into account, which includes age, sex, pregnancy, serious physical disability, recognised mental illness or psychiatric condition such as post-traumatic stress disorder leading to learnt helplessness. It was noted in Humphreys that the provocation has to be related directly to the characteristic then it should be included in the limbs of the test.
Diminished Responsibility
However according to Luc Thiet Thuan, it was argued that the proper defence medical condition such as battered woman syndrome or stress disorder should be diminished responsibility rather than provocation. The defence of diminished responsibility was introduced by s 1 of the Homicide Act 1957 and it could be only be use as defence of murder:
‘Where a person kills or is a party to a killing of another, he shall not be convicted for murder if he was suffering from such abnormality of mind (whether arising from a condition of arrest or retarded development of mind or any inherent causes or induce by diseases or injury) as substantial impaired his mental responsibility for his act or omission in doing or being party to the killing’
The purpose is to distinguish those who are different in the standard of reasonableness. By applying the original standard, it will cause injustice as the state of mind and ability of reasoning of these categories of people is different than the ordinary reasonable man.
Medical evidence was practical necessity to the success of this defence.However the jury are not bound to accept the evidence if they found there was other conflicting medical evidence in which they are require to weight up and choose between different opinions. Basically s 2(1) could be break into 3 components:
- an abnormality of mind
- arising from certain specific causes
- which substantially impairs mental responsibility.
It is important that the judge directed the jury the meaning of this section which the failure of it may constitute a different outcome.
‘Abnormality of mind’
The medical evidence is in fact important however it is still left to the jury to decide whether the defendant was suffering from ‘abnormality of mind’. As per definition by Lord Parker CJ in Byrne, ‘abnormality of mind... means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind’s activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgement as to whether an act is right or wrong, but also the ability to exercise will-power to control physical acts in accordance with the rational judgement.’ Base on this definition the conviction in Byrne was quashed as his violent perverted sexual desire was difficult or impossible to control. The inability or difficulty to control impulses could be amounted to abnormality of mind and thus it is concluded that the definition of ‘abnormality of mind’ is wider than ‘diseases of mind’. As in Byrne the court held that defendants condition was partial insanity, it raises confusion of insanity defence. It was then cleared in Seers that depression illness could amount to abnormality of mind and it should avoid the reference of insanity.
External influence such as drugs and alcohol are excluded in this defence, however there are circumstances where it supported factors as such jealousy, depression and rage as defence. If there is more than one alleged cause of abnormality of mind, it should be sufficient that all together constitute such abnormal state of mind.
‘Any inherent cause’
The scope of ‘any inherent cause’ does not require the condition to be an inherited one neither it has to be present from birth. The inherent causes included psychopathy, mental deficiency, paranoia, epilepsy, depression, pre-menstrual tension, and battered woman syndrome. The term ‘disease’ is wide enough to include both physical and mental disease. The word ‘injury’ could cover either physical or physiological injuries or combination of both.
‘Substantial impaired mental responsibility’
As per Lloyd, it was stated by Ashworth J that ‘substantial’ does not necessary mean total however it does not mean trivial or minimal. It is left to the jury’s discretion to decide whether the mental responsibility was substantially impaired. Sympathy and empathy for the defendant stands important role in deciding the case.
Diminished Responsibility and Intoxication
Problems arise when defendant pleas diminished responsibility yet there was presence of intoxication during the killing. It was held that even if there was effect of the brain after consumption of drug and alcohol, it was not an injury and not abnormality of mind. It was also held in Dietschmann that the interpretation in Gittens of whether the defendant had not been intoxicated, he would have killed and would have been under diminished responsibility when he did so was incorrect. The jury’s task is to decide whether despite the effect of intoxication, his abnormality of mind nevertheless substantially impaired his mental responsibility for his fatal act. It is incorrect for the judge to direct the jury that unless it is satisfied that defendant had not taken the drink he would still have kill then the defence must fail. However, there are circumstances if the brain is damaged due to alcoholism, the injury could support diminished responsibility. If defendant is unable to resist drinking, which could mean involuntary, this could amount to the defence of diminished responsibility. Other than that intoxication is not supported as diminished responsibility.
Conclusion
In summary, the current English law now requires the reasonable man to have both mental and physical characteristics of the defendant in relation to defence of the gravity of the provocation and diminished responsibility, which is assessing in a rather subjectively manner. The adoption of the subjective manner has opened a wider perspective of the standard of reasonableness which allows the defence as such of provocation and diminished responsibility. The acknowledgement on the characteristics base on gender, age and inherent cause had provided a wider scope of availability of defence when a crime is committed. However critics view that the escape of conviction of murder become easier as the standard of self-control is base on defendant’s peculiar characteristic except for his irascibility. The question should the standard of reasonableness to be tightened for the sake of justice in the expenses of the liberty on the defendants requires further debate.
http://legal-dictionary.thefreedictionary.com/reasonable
http://dictionary.reference.com/browse/reason
Andrews v DPP [1937] AC 576
R v. Camplin [1978] A.C. 705.
Dix (1982) 74 Crim LR 302.
Gomez (1964) 48 Cr App R 310.
Miller, The Times 16th May 1972.
Seers (1984) 79 Cr App R 261.
Coles (1980) 144 JPN 528.
McGarvie (1985) 5 NSWLR 270.
Gomez (1964) 48 Cr App R 310.
Speak (1957) 41 Cr App R 222.
Simcox [1964] Crim LR 402.
Ahluwalia [1992] 4 ALL ER 869.
Reynolds [1988] Crim LR 679.
Hobson [1998] 1 Cr App R 31.
Di Duca (1959) 43 Cr App R 167.
Tandy [1989] 1 ALL ER 267.