1. General  

Limitations on Criminal Responsibility

A number of issues arise in relation to criminal responsibility, quite apart from the consideration

of actus non Facit reum, nisi mens sit rea. Where an offence has been committed, there

may be some reason why its perpetrator cannot be held responsible.

  

There are three categories of such reasons:

(a)Jurisdictional Limitation;

(b) Incapacity;

(c) General defenses.

   

2. Jurisdictional Limitations

 

(a) Lapse of time:

Generally, lapse of time is no bar to criminal prosecution. The Limitation Acts do not, generally,

 apply to crimes, but in some cases, particular statutes bar prosecution for certain offences after

prescribed periods.

(b) Territorial limits:

Generally, a person cannot be tried in the courts of a given country for an offence committed on

 land abroad. Again particular statutes create exceptions.

3. Incapacity

Certain persons may be incapable of criminal responsibility by virtue of belonging to a class of

persons who are subject to special rules or privileges.

The only persons who are effectively "incapable" of committing crimes are children under the

age of ten years. Even if such a child commits an act which would otherwise be an offence, no

offence has been committed; thus, where a seven-year­ old child "stole" a tricycle, his parents

could not be guilty of receiving stolen goods when they took it from him.

 

Children between the ages of ten and fourteen are capable of criminal acts; they are exempt

unless it can be shown:

 

(i) they committed an actus reus with mens rea; and

(ii) they did so with a "mischievous discretion", i.e. knowledge that they were doing wrong.

In a case of manslaughter, it was said that the child must know he was doing something

 "gravely wrong".

A boy below the age of fourteen years cannot be convicted of rape or attempted rape but he can

 be convicted of indecent assault

 

 

Children over the age of fourteen have full responsibility. They are, however, subject to different

treatment from adult offenders, so that care orders, etc. may be utilized by the juvenile court,

where most of the offenders between fourteen and eighteen are tried.

4. Employers and Corporations

Whilst neither of these categories are completely exempt or incapable, in practice, circumstances

may be such that they cannot be responsible.

 

(a) Employers:

A master is not, generally, liable for the crimes of his servant. He may be liable, however, if:

(i) he  counselled or abetted the offence; or

(ii) the servant's act can be attributed to the master in law, e.g. only the master can "sell" goods,

 legally  or otherwise, since only he has legal ownership of the goods.

(iii) the master has delegated the running of his business to the servant

 

 

 

(b) Corporations:

 

They are generally liable for crimes, but limitations are in fact dictated by their artificial nature. A corporation cannot commit certain offences.

 

(e.g. rape or burglary), and cannot be subject to certain punishments

(e.g. death or imprisonment).

 

 

 

5. General Defenses

There are several such defenses: they differ considerably in that some may amount to a deprivation,

possibly temporary, of volition (therefore no actus reus can have voluntarily been committed);

others may entail the absence of mens rea; others may arise from other factors.

 

6. Insanity

This is a complete defense, provided that the accused can show that at the time the offence was committed, he was "labouring under such defect of reason, from disease of the mind, as not to know the nature and quality of his act, or, if he did know it, that he did not know he was doing what was wrong".

 

(a) Everyone is presumed sane. It is up to the accused to prove insanity, but the burden of proof

is not the same as that required of the prosecution in proving guilt (i.e. beyond all reasonable

 doubt). To justify a verdict of "not guilty by reason of insanity" the accused must prove he was

(or is) insane on the balance of probabilities (i.e. more likely than not).

 

(b) There must be some actual disease of the mind. This is a legal, not a medical, question: accordingly neither external factors, nor mere stupidity, will suffice.

 

 

 

(c) The defendant must be in such a condition as not to know the nature and quality of his acts; or not to know they are wrong. Strong impulse, even if uncontrollable, is not enough, though it might amount to another defense such as automatism (involuntary conduct) or if the case is one of murder, diminished responsibility which, if successful, would mitigate so as to make the accused guilty only of manslaughter.

 (d) Partial delusions may be sufficient, but only to the extent that the defendant is to be judged "as if the facts with respect to which the delusion exists were real": thus, if D kills P thinking P to be attacking him, he may be acquitted. If, on the other hand. he does so thinking he has been "divinely ordained", he is guilty of murder

(e) If proven, a plea of insanity results in a verdict of "not guilty by reason of insanity" .

7.Automatism

An act is not punishable if it is done involuntarily, e.g., while sleepwalking.

Such involuntariness may be the result of a recognized disease of the mind: thus, where a disease of the mind induces loss of control, we sometimes speak of "insane automatism".

In cases where the defense raises the defense of diminished responsibility (and possibly also in cases involving the defense of automatism, where it depends upon some abnormality of mind) it is now open to the prosecution to lead evidence of insanity.

Automatism is not available where the state of unconsciousness is self-­induced: a driver charged

with manslaughter when he fell asleep at the wheel of his car could not plead automatism since

 he could have stopped the car when he felt too sleepy to drive.

 

8. Intoxication

This includes both drunkenness and intoxication by drugs. Neither of these is a defence in itself: it might be the case, however, that the accused, through intoxication, is denying that he had mens rea. It is unlikely that he could establish automatism through intoxication; if intoxication is prolonged, though, it might cause a disease of the mind such as would form the basis of the defence of insanity.

 

The rules may be summarized as follows:

 

 (a) Involuntary intoxication:

An example is shown by the defendant's drink being "laced" without his knowledge: this is a defence if it means that the defendant has no mens rea.

(b) Voluntary intoxication:

 

(i) Where the intention to commit the offence is formed before intoxication, this is obviously no

defence.

 

 

This includes both drunkenness and intoxication by drugs. Neither of these is a defence in itself:

 it might be the case, however, that the accused, through intoxication, is denying that he had

 mens rea. It is unlikely that he could establish automatism through intoxication; if intoxication

 is prolonged, though, it might cause a disease of the mind such as would form the basis of the

 defence of insanity.

 

 

(ii) Intoxication and "specific intent". Self-induced intoxication may serve as a partial defense

. It has been held, therefore, that when the defendant was charged with an offence involving

 a "specific intent", then, by reason of his intoxication through drink and drugs, he should be

 acquitted of that offence, but should be convicted of a crime of "basic intent" only, if the

 facts permitted. "Specific intent" is a novel concept in the law. Certainly crimes involving

ulterior intent (e.g. burglary), or crimes whose definitions involve a particular intent

(e.g. "malice aforethought" in murder), fall within its scope.

(iii) Where, on the other hand, a crime of "basic intent" (such as manslaughter) is charged, and

the defendant attempts to deny mens rea, then evidence of intoxication is likely to be fatal to his

defense, since the intention to take the drink or drugs may, in itself, be sufficient mens rea."

9. Duress

It is a defense to show that the accused committed the offence against his will and under

 compulsion which deprived him of choice (in other words, made his act effectively involuntary).

(a) Superior orders are not, in themselves, sufficient to amount to duress.

(b) Where the compulsion amounts to threats, then these must be of physical violence, such

as leaves the defendant with no choice. It is traditional to maintain that threats to someone

other than the accused himself (including his family) are not enough; recently this has been

 doubted. The violence must also be to the person - destruction of property is not enough.

(c) Duress in murder cases:

The traditional view is that duress is not available as a defense to murder. Recently, however,

it was held that the question of duress should have been put to the jury where D was accused

 of aiding and abetting murder.

(d) Duress and treason:

 

(e) Marital coercion: The old rule is that duress is no answer to treason. There are, however,

 various offences of treason, and duress has been allowed as a defense to several of these, such

as: supplying  food to the enemy, and helping the enemy with propaganda.

The old rule is that duress is no answer to treason. There are, however, various offences of

treason, and duress has been allowed as a defense to several of these, such as: supplying food

to the enemy,and helping the enemy with propaganda.

 

10. Necessity

It is a defence to show that the accused committed an offence to prevent some graver occurrence or offence. It is usually only a defence in certain well-defined situations, such as where "reasonable force" may be used in preventing crimes (this would include self-defence) or making an arrest.

The defense is certainly not available to murder, on the ground that killing one person enables others to survive.

Duress may in some cases be regarded as a modified form of the defense of necessity.

Statutes have occasionally adopted a modified form of the defense of necessity in circumstances not involving self-defense.

 

11. Mistake

 

It is now settled that, where a mistake of fact is such that it prevents the defendant from having

 the  required mens rea, then it is a defense.

 

Three situations may arise.

 

(a) Where the law requires intention or recklessness as to some element in the actus reus.

 Here, a mistake will be a good defense.

 

 

(b) Where the offence may be committed negligently: here, to be a defense, a mistake must be a

reasonable one

(c) Strict liability:

Here, mistake is no defence at all."

Mistake of law, on the other hand, is no defence to crime.

 

 

12. Accident

This is only a defence in circumstances where the accused is not charged with a crime of

negligence; nor is a defence that the accused intended to commit an offence, but his intended

 victim is not the person who is, in fact, affected. Thus, where A intended to strike B, but missed

 and struck C instead, he was still guilty of assault (known as the "doctrine of transferred malice").

Similarly, if the accused is mistaken as to the identity of his victim, this is no defence. On the other

hand, if no crime whatsoever is intended, as when the accused shoots at a rabbit, but hits A, he

is not guilty of any crime (unless, in so doing, he was reckless or negligent).

Offences Against the Person Fatal Offences

1. Homicide

This is the general term given to all unlawful killings, including murder and manslaughter. It is

normal to deal with these offences separately.

 

2. Murder

This is the "unlawful killing of a reasonable creature in being, with malice aforethought, so as

the party wounded or hurt dies of the wound or hurt within a year and a day".

 (a) "Unlawful killing" is necessary.

Killing an enemy in war, for instance, is not unlawful, so is not murder, even if done with malice aforethought

(b) Reasonable creature, means a "human life in being".

The difficulty here arises in the case of unborn or newly born children. It is not murder to kill a

child in  the womb (though it might be an offence). To be the victim of murder the child must

 have an existence independent of its mother, though it is not necessary that it should have

 breathed.

 

(c) Causation - the "year and a day rule".

The rule itself is an ancient one, which acknowledges the difficulty of tracing causation when the

 interval (between the wound and eventual death) is a long one. Whatever the interval, however,

there is no doubt that death must have been occasioned or expedited by the accuser’s act or

omission. Thus, when P was stabbed during a fight, and died, the fact that there was inadequate

 medical care available made no difference, so long as the stab wound was still an

"operative cause of death"."

On the other hand, when P was wounded, but death was caused, not by the wounded, but

by the injection of a drug to which P was intolerant, then this was not murder.

 

 

(d) Malice aforethought:

 

This is the mens rea of murder - it is a technical term, which covers various states of mind. "Malice" in the sense of "ill will" is not necessary; nor is premeditation, in the sense of advance planning. Malice aforethought consists of:

(i) The intention to cause death in any person; or

( ii ) The intention to do grievous bodily harm to any person; or

(iii) Knowingly  to expose the victim to the real and probable risk of death or grievous bodily harm

 

 

Items (i) and (ii) are well-established; (iii) is a recent formulation

derived from a new decision. It requires that the act be "aimed" at

 someone (the victim), and the risk must, of course, be known to the accused.