Wait a second!
More handpicked essays just for you.
More handpicked essays just for you.
Criminal justice strict liability offenses
Explain the meaning of mens rea in criminal law
Don’t take our word for it - see why 10 million students trust us with their essay needs.
Mens rea known as the “mental element” of an offence has long been regarded as a crucial factor in criminal law, aiming to ensure that only those who are blameworthy are punished for crimes thus inputting the role of fairness into the criminal law system. H.L.A Hart agreed with this fairness rationale arguing that it would be wrong to convict and punish anyone who had not been given ‘a fair opportunity’ to exercise the capacity for ‘doing what the law requires and abstaining from what it forbids.’ “The general rule is that no crime can be committed unless there is mens rea.” But this is departed from when creating strict liability offences. Strict liability offences require “proof that the defendant performed the prohibited conduct, but do not require proof that the defendant was blameworthy” . There are many interpretations of the term, one of the most accepted formal concept details strict liability offences as those ‘that contain at least one material element for which there is no corresponding mens rea requirement.’ Strict liability offences are not usually indictable offences and are generally regulatory. For example in Harrow LBC v Shah and Shah The majority of driving offences are contained in the Road Traffic Act 1988. This essay will mostly examine causing death by unlicensed, disqualified or uninsured driving (s3ZB) and causing death by careless or inconsiderate driving. (s2B) There is often a distinction between constructive and non constructive strict liability offences. These offences are considered to be constructive strict liability since the prosecution does not need prove there was any fault in relation to causing the death. The case of R v Hughes will be used throughout this essay to supplement ... ... middle of paper ... ...er himself. If the risk to the public is so large, so too should be the punishment even if the result was due to pure luck. However this theory of ‘intrinsic risk’ does have some inadequacies specifically in relation to a section 2B offence. The offence of driving carelessly is judged to an objective standard, the standard of a reasonable man and his driving skills. This poses a number of issues as firstly, what is the reasonable standard and when does the defendant fall under that standard. It is part of human nature to make errors from time to time, whether they are minor or major. Every driver at some point through their driving history has made some error. So when the mistake is a lapse in concentration and they were just under the standard of a careful driver but an unlikely outcome of death occurs, it undoubtedly cannot be justified to convict that person.
The respondent (driver) is required to take reasonable care when operating his vehicle to ensure the safety of the appellant. The primary judge highlighted that "content of this duty depends on the circumstances of the case". However, the respondent breached his duty of care by taking his eyes off the road, violating s 5B and s 5C of the Civil Liability Act (NSW) 2002. The respondent nevertheless is not considered negligent as outlined in s5B (1) if he could prevent the outcome of a risk that was not
Axiak v Ingram (2012) 82 NSWLR 36 (Axiak) was extremely pertinent, standing as the “only decision of this court dealing with the construction of the blameless accident provisions of the MACA”. Critically, the case established that ‘non-tortious negligence’ is excluded from the MACA’s definition of “fault” in s3. Such provisions artificially place fault upon the driver in order to secure CTP claims for victims.
The United States v. Thomas J.L. Smiley et al.. (n.d) retrieved 1 February 2012, from Google Books Web Site:
This paper considers the desert arguments raised to support retributivism, or retribution. Retributivism is "the application of the Principle of Desert to the special case of criminal punishment." Russ Shafer-Landau and James Rachels offer very different perspectives on moral desert which ground their differing views on the appropriate response to wrongdoing. In "The Failure of Retributivism," Shafer-Landau contends that retributivism fails to function as a comprehensive theoretical foundation for the legal use of punishment. In contrast, in his article "Punishment and Desert," Rachels uses the four principles of guilt, equal treatment, proportionality and excuses to illustrate the superiority of retribution as the basis for the justice system over two alternatives: deterrence and rehabilitation. Their philosophical treatment of the term leads to divergence on the justification of legal punishment. Ultimately, Rachels offers a more compelling view of desert than Shafer-Landau and, subsequently, better justifies his endorsement of a retributive justice system.
What is retributive justice? It is a system of criminal justice based on the punishment of offenders rather than rehabilitation. According to our notes, it is the oldest sense of the word justice. Others think of it as “an eye for an eye” or “getting even”. Justice should be more than getting even for crimes and offenses. Retributive justifications of punishments have largely endured the test of time.
Sometimes carelessness can amount to mens rea. Most of the time carelessness can be a crime when a person "recklessly disregards a substantial and unjustifiable risk." It is up to the judge and juries to evaluate a person's actions and decide whether the carelessness is serious enough to fall under mens rea. But people who accidentally commit illegal conduct may be morally innocent. Someone who breaks the law because he or she honestly mis interprets reality lacks “mens rea” and should not be charged with or convicted of a crime. For example, if person A hits person B because the person reasonably but mistakenly thought person B was about to hit him, person A would not have mens rea.
The subjective definition of recklessness is where the defendant takes an unjustified risk and was actually aware of the consequence, has been seen here to be the best approach when understanding reckless behaviour. Although within criminal law, the term recklessness has a second definition which is known to be objective recklessness. The objective definition argues that a person is reckless when the defendants take an unjustified risk and was actually aware or should have been aware. This essay establishes that the subjective definition of recklessness takes into account the individuals characteristics, the mental state of a defendant but also help to understand certain cases like rape. It has also been established here that elements of the objective definition is an extension from the subjective definition of recklessness, which therefore allows the subjective side holds greater weight and in terms of looking at if the reasonable man may have be incapable of foreseeing a consequence. Thus, it has been argued here that the subjective definition of recklessness in criminal law must be maintained.
To be criminally liable of any crime in the UK, a jury has to prove beyond reasonable doubt, that the defendant committed the Actus Reus and the Mens Rea. The Actus Reus is the physical element of the crime; it is Latin for ‘guilty act’. The defendant’s act must be voluntary, for criminal liability to be proven. The Mens Rea is Latin for guilty mind; it is the most difficult to prove of the two. To be pronounced guilty of a crime, the Mens Rea requires that the defendant planned, his or her actions before enacting them. There are two types of Mens Rea; direct intention and oblique intention. Direct intention ‘corresponds with everyday definition of intention, and applies where the accused actually wants the result that occurs, and sets out to achieve it’ (Elliot & Quinn, 2010: 59). Oblique intention is when the ‘accused did not desire a particular result but in acting he or she did realise that it might occur’ (Elliot & Quinn, 2010: 60). I will illustrate, by using relevant case law, the difference between direct intention and oblique intention.
part of the Doctrine Hedley Byrne and Co. Ltd V Heller and. Partners Ltd (1964), Rondel V Worsley (1969).
Distracted driving is a prime example of being irresponsible when the lives of the driver and others are at stat. One quick glance at a texted massage can cause multiple fatalities leading to pain and suffering for the surviving loved ones of the victim and distracted driver. Even without fatalities or injury distracted driving has cause hundreds of accidence leading to unnecessary spending for emergency resources, i.e. police and ambulances calls. Simple choices
It is morally right as the when the person is convicted, they must get the punishment. It is opinion of the public to the bad guy without concerning with the outcome of the punishment. This theory also is regarded as the offenders deserve to get the punishment not as to prevent from future wrongdoing . This theory also as the metaphorical to scared the society for not doing the same offense. Richard Swinbume, in his recommendation of retributive punishment, indicated that the state only has authority to impose punishment for criminal harm where it serves as a proxy for the individual harmed.' This is ‘‘one of the oldest and most basic justifications for
In this essay, I will describe the elements of a criminal act, address the law of factual impossibility, the law of legal impossibility, and distinguish whether the alleged crime in the scenario is a complete but imperfect attempt or an incomplete attempt. I will address the ethical or moralistic concerns associated with allowing a criminal defendant to avoid criminal responsibility by successfully asserting a legal defense such as impossibility. The court was clearly wrong to dismiss the charge against Jack of attempted murder of Bert.
In search of these answers I came across the traditional theory of criminal law. In this theory I came across two aspects. The first one is utilitarianism and the other “retributivism” which talks about moral behavior.
Offenders are protected today by both the rule of law, ensuring that all offenders are treated equally, regardless of their age, sex or position in the community, and due process, which ensures that all offenders are given a fair trial with the opportunity to defend themselves and be heard (Williams, 2012). Beccaria’s emphasis on punishment being humane and non-violent has also carried through to modern day corrections. It is still the case today that offenders must only receive punishment that is proportionate to the crime they have committed and the punishment is determined by the law. The power of the judges and the magistrates to make decisions on punishment is guided by the legislation and they do not have the power to change the law (Ferrajoli,
The main form of reckless driving that a large amount of people are aware of is drinking and driving. When an individual is under the influence while driving, it can become detrimental in regards to other lives, not just to the individual behind the wheel because it impairs the driver 's ability to make quick and smart decisions. Within the last year there was a 15 year old boy who had lost his life due to driving under the influence. Somehow the boy had managed to veer off the road and wrap his car around a pole and into a Whataburger, not only taking his own life but also risking the lives of anyone who was inside the restaurant. The fact that he was drinking impaired his ability to drive, thus resulting in not having control of his vehicle. Another major issue of reckless driving is speeding. Many times drivers will reach dangerous speeds on the road as the result of racing. Once reaching the high speeds, the individual is risking the amount of control they have over the car. When lacking control of the vehicle the said person is