“The Law Commission recently described murder as a ‘rickety structure set upon shaky foundations. Law Commission Consultation Paper No 177, New Homicide Act for England and Wales (2005) (LCCP 177), para 1.4. See below, p 633. (...) Murder is when a man of sound memory, and of the age of discretion, unlawfully killed within any county of the realm any reasonable creature in rerum natura under the king’s peace, with malice aforethought, either expressed by the party or implied by law, [so as the party wounded, or hurt, etc die of the wound or hurt, etc within a year and a duty after the same]. (Coke 3 Inst 47)” (ref.1)
The European Court of Human Rights (ECtHR) sates in Article 2 that everyone has a right to live, murder breaks this law directly.
The Smith and Hogan’s Criminal Law states that, “it must be proved that the defendant caused the death of the deceased person.” (ref.1)
“The starting point is that we are concerned with proof of real state of mind. The mens rea for murder is that D must have malice aforethought, that is, D must have intended to kill or cause grievous bodily harm.” (ref.1)
“The mental element required for the crime of murder, as for the crime of manslaughter, has varied over the centuries. From Coke’s time (...) there has been a steady contradiction of definition of murder but for the unfortunate decision in DPP v Smith. Reporting in 1953 the Royal Commission on Capital punishment (RCCP) (Cmd 8932) found it ‘impractical’ to form a satisfactory definition of murder but it did recommend that the reach of murder be curtailed by abolition of the doctrine of ‘constructive’ murder. Under the doctrine a person was guilty of murder if he caused death during the commission of felony involving violence (eg, rape, robbery) or if he caused death while resisting an officer of justice.” (ref.1)
Further on the book explains the concept of abolition of ‘constructive malice’:
“1. Where a person kills another in the course of furtherance of some other offence, the killing shall not amount to murder unless done with the same malice aforethought (express or implied) as it is required for killing to amount to murder when not done in the course of furtherance of another offence.
2. For purposes of the foregoing subsection, a killing done in the course or for the purpose of resisting an officer of justice, or of resisting or avoiding or preventing a lawful arrest, or of effecting or assisting an escape or rescue from legal custody, shall be treated as a killing in the course or furtherance of an offence.” (ref.1)
Studying elements of crime it is essential to have a look into actus reus and mens rea which are components of crime. “Lawyers have long found it convenient to distinguish the mental element from the other elements for the purposes of exposition of the law and have called it ‘mens rea’. This phrase derives from a maximum quoted by Coke in his Institutes (Ch 1, fo 1o) ‘ Actus non facit reum nisi mens sit rea’, an act does not make a man guilty of a crime unless his mind also be guilty. (...) The elements of the actus reus include elements of conduct, circumstances, and in some offences, consequences. (...)
Most crimes require proof of a mental element of some sort. It has to be proved with the same degree of strictness as the other elements of the crime as the case of Woolminghton (...). It is possible for the courts to dispense with mens rea in whole or in part with offences of strict or absolute liability (...), but, except in the anomalous case of an intoxication offender (...) they can never dispense with the actus reus. There are no ‘thought crimes’. (...)
Above all it is essential to emphasise that “these expressions – mens rea and actus reus – are only analytical tools: they help us to identify which elements of the offence are in dispute etc. The only thing that exists in law is the crime.” (ref.1)
There are two points of controversy in a description of the two concepts. “The actus reus generally requires proof that the defendant did an act. It is argued that since an act is essentially a voluntary movement and not a spasm or convulsion, ‘voluntariness’, though a mental element, is part of actus reus. (...) Some of writers and judges have described these mental elements as part of the mens rea. However, the only thing that really matters is whether they area elements in the crime. If they are, it is immaterial whether they are assigned to the actus reus or to the mens rea.”
All these concepts I already explored in my previous post, by reading a different book I wanted to compare and find if the definitions would differ and bring a new meaning into answers that I am looking for in aspect of murder and finding certain defences and understanding judgment through criminal law.
Again, it is clear that "all the elements of crime charged must be proved" and this is what is very important in understanding how prosecution has to act in order to persuade the jury to their side of arguments.
Other aspect on my research involves speculation and suspicion that leads to a suspect and how a suspect becomes a defendant. studying these concepts is crucial in understanding what would have had to be proved or investigated by the prosecution so that the legal guilt could be found and effectively the suspect turned into convicted person.
"There are may serious offences with law level mensrea requirements such as 'suspiction' and ' having reasonable grounds to suspect'. "
"In Da Silva [2006] EWCA Crim 1654, 'supicion' was held to impose a subjective test: D's suspicion need no be based on 'reasonable grounds'. D must think that there is a possibility, which is more than fanciful, that the relevant facts exist. Use of words like 'fleeting thought' and 'inkling' [vague idea of suspiction] is apt to mislead.(...) the court held that the essential element in the word 'suspect' and its affiliates, in this content, is that the defendant must think that there is a possibility, which is more than fanciful, that the relevant facts exist. A vague feeling of unease would not suffice. But the statue does not require the suspicion to be 'clear' or 'firmlygrounded and targeted on specific facts', or based upon 'reasonable grounds'." (ref.1)
Lord Devlin in Hussien v Chang Fook Kam [1970] AC 942 at 948 defined suspicion as its common meaning to be "in state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove'. Susption arises at or near the starting point of an investigation of which the obtaining of prima facie prof is the end." (ref.1)
The presumption of innocence is measured within the necessity for the Crown to establish every element of the offence to the standard of proof which will be measured on the balance of probabilities or beyond reasonable doubt depending what sort of offence did the person commit. As mentioned in my previous post the side of the argument that berries the burden of proof does not satisfy the jury/court they lose the case. The defendant on the other hand is not obliged to prove the particular defence in order to be not guilty. However, the defendant still needs to 'raise evidence' of the "defence in order get it on its feet". (ref.1)
As soon as he does so the Crown will have to disprove it, if it fails to do so the defendant is acquitted.
"In a criminal trial, the prosecution will have to satisfy the court of defendant's guilt to 'criminal standard': that is beyond reasonable doubt." (ref.1) which is what I have already learnt from the previous reading, in here there comes another aspect of exception in which "the defence bears the burden of proof the defendant must satisfy the court on the balance of probabilities - that is that it more likely than not. Crudely, that equates to 51 per cent. There is no standard of proof in relation to evidential burdens of proof. The requirement is that the party adduces enough evidence to raise the issue."
"The presumption of innocence is found in all international instruments of human rights and the constitutions of many states throughout the world. It is rightly perceived as a fundamental principle; many would say that it is foundational principle of criminal process.
...
It is submitted that when a challenge is made to the compatibility of a reverse onus the present law requires a three-stage process of decision-making.
1. interpretation of the statue: does the provision in question, interpreted in accordance with the ordinary principles of construction, place a burden on the accused? If so, is it a legal or an evidential burden? If it is evidential no further inquiry need [to] be made about compatibility with Art. 6 (2). If it is a legal burden, the court must move to stage 2 to assess the question of compatibility.
2. Justification of the reverse onus: does the provision in question serve a legitimate aim and is it proportionate to that aim? If the answer is Yes, the provision is an acceptable qualification to the presumption of innocence. The defendant will then bear the burden of proof on the matter in question, although to a lower standard of proof than the prosecution (namely the balance of probabilities), if the answer is No the court must move to stage 3.
3. Reading down the provision: if the reverse legal burden cannot be justified can the court 'read down' the burden to an evidential one, using s.3 of the HRA? If it can it should do so. If it cannot the court should make a declaration of incompatibility of the provision under s.4 of the HRA. (ref.1)
All the above is essential in understanding processes of conviction and at the same time learning the ways that Criminal law works.
Reference:
1. Smith and Hogan, Ormerod. D (2009) Criminal Law, Cases and Materials, 10th Edition
Wednesday, 30 March 2011
Criminal Law by Alan Reed and Ben Fitzpatrick, chosen aspects- studying Investigative Journalism
" Throughout the web of the English criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt, subject to... the defence of insanity and subject also to any statutory exception... No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained". Woolmington v DPP, Viscount Sankey L.C.
Investigative Journalists are probably experts in this part of law or just as well informed as they know their Media Law. Main focus of Criminal Law turns into facts of the case, "on what happened, rather than on the criminal law itself."(ref.1) And investigating facts and finding the factual innocence rather tan only looking at legal innocence or guilt.
"However, underpinning any discussion, factual or fictitious, of the criminal justice process, is the possibility more mundane question of what behaviour amounts to a criminal offence. Thus, if the question in a television drama is whether a suspect has committed murder, somebody needs to know what, at law, constitutes the offence of murder." (ref.1)
"Criminal Law operates in the area in which the interests of citizens conflict with each other, and where the state claims a legitimate stake in people's behaviour. It is therefore one of many ideal subjects for developing an understanding of how society fits together, and is regulated." (ref.1)
Looking into the burden of proof and standard of proof. "The basic rule of criminal evidence is that the prosecution must prove the case against the defendant. Thus, if a defendant is charged with murder, the prosecution must prove that all the elements of murder are present - that is, that the defendant unlawfully caused the death of human being, with the intention to kill or to grievous bodily hard. The requirement for the prosecution to prove the case reflects what is known as the presumption f innocence." (ref.1) Which in other words means 'innocent until proven guilty'. Essentially it is only prosecution that has to prove the case.
There are also situations where the prosecution does not bear the burden of proof in case that the defendant wants to claim that they are insane, in order to avoid conviction and this is when the defendant will have to prove that they are insane. Further more it is important to know how much proof is needed (the standard proof), " the prosecution must prove their case beyond reasonable doubt" (ref.1), however "it does not mean with absolute certainty". (ref .1)
The meaning of the 'reasonable' in there means that the prosecution has to make you to be sure of it, so strength of persuasion of the prosecution is crucial in presenting the evidence in that case as from what it looks like even though the defence' stand and evidence were factually correct and the person would be factually innocent if the defence doesn't have a strong persuasion and skill to present it, prosecution can win still win the case. It seems like this phrase, 'beyond reasonable doubt' all of the sudden brings up hesitation in fair judgement and it looks like there is room for doubt.
"If after considering all the evidence you are sure that the defendant is guilty, you must return a verdict of 'Guilty'. If you are not sure, your verdict must be 'Not Guilty'." This is what the Judicial Studies Board (...) suggests that judges direct juries on so called standard of proof.
"If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence 'of course it is possible, but not in the least probable.' the case is proved, but nothing short of that will suffice." (Miller v Minister of Pensions, Denning J,) (ref.1)
However, “if the burden of proof is on the defendant, it need never be satisfied beyond reasonable doubt. Rather, the required standard is 'the balance of probabilities'. This means, effectively, more likely than not.” (ref.1)
“The … degree of cogency... required... is well settled. It must carry a reasonable degree of probability … If the evidence is discharged, but, if the probabilities are equal, it is not.” (ref.1) In other words the burden of proof in a criminal trial lies in hands of the prosecution not for the accused to prove his innocence, as long defendant pleas 'not guilty' (nothing is admitted) every argument of the prosecution is questionable and will have to prove his guilt.
External element of the offence (actus reus) is guilty act of the crime, and the so called internal elements (mens rea) are in other words guilty mind, meaning that a guilty person committed the crime with intention of doing so. These two main ingredients of crime.
“As a general rule the larger the penalty the less likely the court is to treat it as a crime involving strict liability. The reasoning behind this is that a heavy maximum penalty is an indication of Parliament's intention that the accused should be shown to be blameworthy. “ (ref.1)
In light of the above rule it appears that the question should be asked, what about these who have been wrongly accused. Why this judgement which is supposed to be beyond reasonable doubt can still be within a level of doubt that can allow for an innocent person to be convicted of crime that they did not commit. It does happen, and again looking at the rule above it would make 'in eyes' of law and 'Parliament's intention' that an innocent person can be judged to be blameworthy and convicted and imprisoned while being innocent.
Within the aspect of so called 'mentally abnormal offender (insanity and unfitness to plead) it is very interestingly stated that “the defence of insanity is raised by a defendant who is claiming that at the time he was alleged to have committed the offence he was suffering from a mental condition which would excuse him from criminal responsibility.” (ref.1) This would lead to verdict 'not guilty by a reason of insanity'. Going further into the phrase above, how about if a defendant's mind and skill wasn't sharp enough, 'equipped' in knowledge and skill to commit presumably premeditated crime that would involve from could be classed as a high skill as well as knowledge to cover the evidence so that there is close to none on the crime scene. Would this classify as “a mental condition which would excuse him from criminal responsibility”?
“ The law is not concerned with the brain but with the mind, in the same sense that 'mind' is ordinarily used, the mental faculties of reason, memory and understanding. If one read for 'disease of mind' 'disease of the brain', it would follow that in many cases pleas of insanity would not be established because it could not be proved that the brain had been affected in any way, either by degeneration of cells orin any other way. “ This judgement was said Davlin J. in Kemp (ref.1, page 190), it was also added that “the condition of brain is irrelevant and so is the question whether the condition of the mind is curable or incurable, transitory or permanent.” (ref.1, page 190)
In case of Podola (ref.1, page 181), “ where D sought to rely on hysterical amnesia preventing him from remembering events material to the commission of the crime which involved the murder of a police officer. This emphasises that it is the state of the person's mind at the time of the trial that in in issue. By the time of the trial Padola was clearly able to understand the charges that had been brought against him and knew difference between pleading 'guilty' or 'not guilty'. In this case, if his claims as to hysterical amnesia were true, his difficulty lay in knowing whether to plead' guilty' or 'not guilty' since he could not recall what happened.
Where the issue is raised by the defendant he has burden of proving on a balance of probabilities that he is unfit to plead; where it is raised by the judge or prosecution, the prosecution bears the burden of proving beyond reasonable doubt that the accused is unfit.” (ref.1) (All the aspects of levels of the defendant to be 'unfit' are understandably to be explored in depth with attendant medical evidence.)
“ The 1991 Act provides that no jury may make a finding that the accused is insane or unfit to plead unless they have received evidence from at least two qualified medical practitioners, at least one of whom must be approved by the Home Secretary as having special experience in the diagnosis or treatment of mental disorder. (…) Once a jury have returned a finding that the defendant is unclear a disability and hence unfit to plead, the jury will then determine, on the evidence already received or now adduced, whether they are satisfied that the defendant did in fact do the act or make the omission charged against him.” (ref.1, page 184)
Insanity as a defence today is seen as a wider range of conditions and "in theory, it could be raised as a defence to even the most trivial assault. However, the result of a successful defence of insanity may be committed to a mental institution for an indeterminate length of time. In effect, therefore, insanity will rarely be raised by the accused on anything but a charge of murder and even there a plea of diminished responsibility would normally be preferred which could lead there a plea of diminished responsibility would normally be preferred which could lead to a determinate prison sentence. " (ref.1) Insanity may be raised indirectly as a defence today. "This could occur because the accused has attempted to plead that he did not possess the necessary mens rea for the offence only to find that the judge has ruled that as a matter of law reason he is advancing amounts to a disease of the mind." (ref.1)
This could partly answer my question from earlier on, for example in Clarke case (ref.1, page 193), "the accused was charged with stealing from a shop. She pleaded that she had taken the items from the shelf absent-mindedly as a result of the depression that she was suffering. If Mrs Clarke had simply rested her case on absent-mindedness, all would probably have been well. Unfortunately, medical evidence was called to support her statements and it was the effect of this evidence which led the trial judge to decide she was raising the defence of insanity." (ref.1)
From what it looks the aspect of the defendant to be not capable of the crime because of not high level of intelligence with dyslexia for example and therefore I can clarify this state of mind to any of the particular of being unfit or call it 'disease of the mind' or example of a non-insane automatism, question is whether it could be defined under any of the mentioned states of mind?
Moving into other aspects of my interest in here, intoxication. As it is given in Criminal Law by Alan Reed and Ben Fitzpatric is that there is posible argument for questioning the mens rea in situstion when defendant is intoxicated, occasion when "he will be so drunk that he does not form the necessary mens rea." (ref.1)
Good question to ask here is whether a certain level of intoxication could give a defendant some sort of alibi that he couldn't commit the crime because of certain level of the intoxication in other words could it be used as a defence?
Alan Reed & Ben Fitzpatrick give this general rule, " intoxication will provide a defence only when it negatives the required mens rea, and even here the defence is severely restricted. We can say that where the effect of intoxication is simply to remove the inhibitions, it will be no defence (...). The defendant will have a defence in these circumstances only if he can bring himself within a defence such as diminished responsibility. "(ref.1)
"Lord Birkenhead took murder as an example. If the accused did not form intention to kill or cause greviou bodily harm bacause he was intoxicated , he could not be convicted of murder (...). The positon would appear to be that voluntary intoxication is a defence only to crimes requiring a specific intent (...)." Could this parts of statements answer my question about having intoxication as part of the defence of being incapable of commiting a crime? Well eventhough it may sound like it is, journalistic nature some aspects that I am questioning doesnt allow me to satisfy myelf with that answer untill I see direct an factual answer as above was in different context and so it may answer it indirectly which is not enough to make it a fact.
Looking at the offences against the person, "murder for example, requires proof that the accused caused death and the offence under s.47 of the Offence Against the Person act 1861 requires proof that the accused caused bodily harm." (ref.1) Further on attempt of definig a murder was "murder is when a man of sound memory, and of age of discretion, unlawfully killeth within any country of realm any reasonable creature in rerum natura under the King's peace, with malice aforethought, ... " (ref.1)
"Historicaly, when an offender was convicted of murder, they would be required to serve a minimum term of imprisonment - known as 'tarif' - which was fixed by the House secretary, after which they become eligable for release on license. " (ref.1) However, the Criminal Justice Act 2003 placed the sentencing regime for murder on a "stautory footing". (ref.1) To prove Unlawful killing prosecution needs to prove that defendant killed the victim and that the killing was unlawful and the proof must be beyound reasonable doubt. To establish a charge of murder the prosecution also has to prove that "the defendant possessed the necessary mens rea on each element of the actus reus." (ref.1)
References:
1. Criminal Law by Alan Reed and Ben Fitzpatric, (2009) 4th Edition
Investigative Journalists are probably experts in this part of law or just as well informed as they know their Media Law. Main focus of Criminal Law turns into facts of the case, "on what happened, rather than on the criminal law itself."(ref.1) And investigating facts and finding the factual innocence rather tan only looking at legal innocence or guilt.
"However, underpinning any discussion, factual or fictitious, of the criminal justice process, is the possibility more mundane question of what behaviour amounts to a criminal offence. Thus, if the question in a television drama is whether a suspect has committed murder, somebody needs to know what, at law, constitutes the offence of murder." (ref.1)
"Criminal Law operates in the area in which the interests of citizens conflict with each other, and where the state claims a legitimate stake in people's behaviour. It is therefore one of many ideal subjects for developing an understanding of how society fits together, and is regulated." (ref.1)
Looking into the burden of proof and standard of proof. "The basic rule of criminal evidence is that the prosecution must prove the case against the defendant. Thus, if a defendant is charged with murder, the prosecution must prove that all the elements of murder are present - that is, that the defendant unlawfully caused the death of human being, with the intention to kill or to grievous bodily hard. The requirement for the prosecution to prove the case reflects what is known as the presumption f innocence." (ref.1) Which in other words means 'innocent until proven guilty'. Essentially it is only prosecution that has to prove the case.
There are also situations where the prosecution does not bear the burden of proof in case that the defendant wants to claim that they are insane, in order to avoid conviction and this is when the defendant will have to prove that they are insane. Further more it is important to know how much proof is needed (the standard proof), " the prosecution must prove their case beyond reasonable doubt" (ref.1), however "it does not mean with absolute certainty". (ref .1)
The meaning of the 'reasonable' in there means that the prosecution has to make you to be sure of it, so strength of persuasion of the prosecution is crucial in presenting the evidence in that case as from what it looks like even though the defence' stand and evidence were factually correct and the person would be factually innocent if the defence doesn't have a strong persuasion and skill to present it, prosecution can win still win the case. It seems like this phrase, 'beyond reasonable doubt' all of the sudden brings up hesitation in fair judgement and it looks like there is room for doubt.
"If after considering all the evidence you are sure that the defendant is guilty, you must return a verdict of 'Guilty'. If you are not sure, your verdict must be 'Not Guilty'." This is what the Judicial Studies Board (...) suggests that judges direct juries on so called standard of proof.
"If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence 'of course it is possible, but not in the least probable.' the case is proved, but nothing short of that will suffice." (Miller v Minister of Pensions, Denning J,) (ref.1)
However, “if the burden of proof is on the defendant, it need never be satisfied beyond reasonable doubt. Rather, the required standard is 'the balance of probabilities'. This means, effectively, more likely than not.” (ref.1)
“The … degree of cogency... required... is well settled. It must carry a reasonable degree of probability … If the evidence is discharged, but, if the probabilities are equal, it is not.” (ref.1) In other words the burden of proof in a criminal trial lies in hands of the prosecution not for the accused to prove his innocence, as long defendant pleas 'not guilty' (nothing is admitted) every argument of the prosecution is questionable and will have to prove his guilt.
External element of the offence (actus reus) is guilty act of the crime, and the so called internal elements (mens rea) are in other words guilty mind, meaning that a guilty person committed the crime with intention of doing so. These two main ingredients of crime.
“As a general rule the larger the penalty the less likely the court is to treat it as a crime involving strict liability. The reasoning behind this is that a heavy maximum penalty is an indication of Parliament's intention that the accused should be shown to be blameworthy. “ (ref.1)
In light of the above rule it appears that the question should be asked, what about these who have been wrongly accused. Why this judgement which is supposed to be beyond reasonable doubt can still be within a level of doubt that can allow for an innocent person to be convicted of crime that they did not commit. It does happen, and again looking at the rule above it would make 'in eyes' of law and 'Parliament's intention' that an innocent person can be judged to be blameworthy and convicted and imprisoned while being innocent.
Within the aspect of so called 'mentally abnormal offender (insanity and unfitness to plead) it is very interestingly stated that “the defence of insanity is raised by a defendant who is claiming that at the time he was alleged to have committed the offence he was suffering from a mental condition which would excuse him from criminal responsibility.” (ref.1) This would lead to verdict 'not guilty by a reason of insanity'. Going further into the phrase above, how about if a defendant's mind and skill wasn't sharp enough, 'equipped' in knowledge and skill to commit presumably premeditated crime that would involve from could be classed as a high skill as well as knowledge to cover the evidence so that there is close to none on the crime scene. Would this classify as “a mental condition which would excuse him from criminal responsibility”?
“ The law is not concerned with the brain but with the mind, in the same sense that 'mind' is ordinarily used, the mental faculties of reason, memory and understanding. If one read for 'disease of mind' 'disease of the brain', it would follow that in many cases pleas of insanity would not be established because it could not be proved that the brain had been affected in any way, either by degeneration of cells orin any other way. “ This judgement was said Davlin J. in Kemp (ref.1, page 190), it was also added that “the condition of brain is irrelevant and so is the question whether the condition of the mind is curable or incurable, transitory or permanent.” (ref.1, page 190)
In case of Podola (ref.1, page 181), “ where D sought to rely on hysterical amnesia preventing him from remembering events material to the commission of the crime which involved the murder of a police officer. This emphasises that it is the state of the person's mind at the time of the trial that in in issue. By the time of the trial Padola was clearly able to understand the charges that had been brought against him and knew difference between pleading 'guilty' or 'not guilty'. In this case, if his claims as to hysterical amnesia were true, his difficulty lay in knowing whether to plead' guilty' or 'not guilty' since he could not recall what happened.
Where the issue is raised by the defendant he has burden of proving on a balance of probabilities that he is unfit to plead; where it is raised by the judge or prosecution, the prosecution bears the burden of proving beyond reasonable doubt that the accused is unfit.” (ref.1) (All the aspects of levels of the defendant to be 'unfit' are understandably to be explored in depth with attendant medical evidence.)
“ The 1991 Act provides that no jury may make a finding that the accused is insane or unfit to plead unless they have received evidence from at least two qualified medical practitioners, at least one of whom must be approved by the Home Secretary as having special experience in the diagnosis or treatment of mental disorder. (…) Once a jury have returned a finding that the defendant is unclear a disability and hence unfit to plead, the jury will then determine, on the evidence already received or now adduced, whether they are satisfied that the defendant did in fact do the act or make the omission charged against him.” (ref.1, page 184)
Insanity as a defence today is seen as a wider range of conditions and "in theory, it could be raised as a defence to even the most trivial assault. However, the result of a successful defence of insanity may be committed to a mental institution for an indeterminate length of time. In effect, therefore, insanity will rarely be raised by the accused on anything but a charge of murder and even there a plea of diminished responsibility would normally be preferred which could lead there a plea of diminished responsibility would normally be preferred which could lead to a determinate prison sentence. " (ref.1) Insanity may be raised indirectly as a defence today. "This could occur because the accused has attempted to plead that he did not possess the necessary mens rea for the offence only to find that the judge has ruled that as a matter of law reason he is advancing amounts to a disease of the mind." (ref.1)
This could partly answer my question from earlier on, for example in Clarke case (ref.1, page 193), "the accused was charged with stealing from a shop. She pleaded that she had taken the items from the shelf absent-mindedly as a result of the depression that she was suffering. If Mrs Clarke had simply rested her case on absent-mindedness, all would probably have been well. Unfortunately, medical evidence was called to support her statements and it was the effect of this evidence which led the trial judge to decide she was raising the defence of insanity." (ref.1)
From what it looks the aspect of the defendant to be not capable of the crime because of not high level of intelligence with dyslexia for example and therefore I can clarify this state of mind to any of the particular of being unfit or call it 'disease of the mind' or example of a non-insane automatism, question is whether it could be defined under any of the mentioned states of mind?
Moving into other aspects of my interest in here, intoxication. As it is given in Criminal Law by Alan Reed and Ben Fitzpatric is that there is posible argument for questioning the mens rea in situstion when defendant is intoxicated, occasion when "he will be so drunk that he does not form the necessary mens rea." (ref.1)
Good question to ask here is whether a certain level of intoxication could give a defendant some sort of alibi that he couldn't commit the crime because of certain level of the intoxication in other words could it be used as a defence?
Alan Reed & Ben Fitzpatrick give this general rule, " intoxication will provide a defence only when it negatives the required mens rea, and even here the defence is severely restricted. We can say that where the effect of intoxication is simply to remove the inhibitions, it will be no defence (...). The defendant will have a defence in these circumstances only if he can bring himself within a defence such as diminished responsibility. "(ref.1)
"Lord Birkenhead took murder as an example. If the accused did not form intention to kill or cause greviou bodily harm bacause he was intoxicated , he could not be convicted of murder (...). The positon would appear to be that voluntary intoxication is a defence only to crimes requiring a specific intent (...)." Could this parts of statements answer my question about having intoxication as part of the defence of being incapable of commiting a crime? Well eventhough it may sound like it is, journalistic nature some aspects that I am questioning doesnt allow me to satisfy myelf with that answer untill I see direct an factual answer as above was in different context and so it may answer it indirectly which is not enough to make it a fact.
Looking at the offences against the person, "murder for example, requires proof that the accused caused death and the offence under s.47 of the Offence Against the Person act 1861 requires proof that the accused caused bodily harm." (ref.1) Further on attempt of definig a murder was "murder is when a man of sound memory, and of age of discretion, unlawfully killeth within any country of realm any reasonable creature in rerum natura under the King's peace, with malice aforethought, ... " (ref.1)
"Historicaly, when an offender was convicted of murder, they would be required to serve a minimum term of imprisonment - known as 'tarif' - which was fixed by the House secretary, after which they become eligable for release on license. " (ref.1) However, the Criminal Justice Act 2003 placed the sentencing regime for murder on a "stautory footing". (ref.1) To prove Unlawful killing prosecution needs to prove that defendant killed the victim and that the killing was unlawful and the proof must be beyound reasonable doubt. To establish a charge of murder the prosecution also has to prove that "the defendant possessed the necessary mens rea on each element of the actus reus." (ref.1)
References:
1. Criminal Law by Alan Reed and Ben Fitzpatric, (2009) 4th Edition
Wednesday, 23 March 2011
'Conviction' an amazing true story about ultimate sacrifice and real victory of justice - it should have received higher rating!
I completely do not agree with the rating of the film which I saw was even given 3/5 on some websites or newspaper reviews. This film's value and narrative story has something very special to offer, this film was one of the most valuable and significant films I have ever watched in my life and if films of this type do not deserve a high rating then all the rating system may be thrown out of the window.
One first comments underneath this film's trailer follows: " Someone please tell me what is wrong with Hollywood and why this movie was not awarded an Oscar or Golden Globe? This movie was the best I have ever seen. (...) I hope this movie inspires you to do the same for your family if God forbid something like this should happen. I wish Hollywood would have reconsidered. I say it was better then Black Swan and deserved an award. Hillary Swank was awesome as was Sam Rockwell who played Kenny." (Ref. 5)
"Conviction is a 2010 drama film directed by Tony Goldwyn. It stars Hilary Swank as Betty Anne Waters and Sam Rockwell as her brother Kenneth Waters. The film premiered on September 11, 2010, at the Toronto Film Festival and was released on October 15, 2010." (Ref.1)
The film is based on the true story of Betty Anne Waters, an unemployed single mother who, with the help of attorney Barry Scheck from the Innocence Project, exonerated her wrongfully convicted brother. In order to do this she earned her GED, then her bachelor's, a master's in education, and eventually a law degree from Roger Williams University in Rhode Island. She accomplished this while raising two boys alone and working as a waitress part-time. While in law school, she began investigating her brother's case.
The story of a true murder and real conviction of Kenny who was so fantastically acted as by Sam Rockwell took place in1983.
The murder of Katharina Brow in Ayer, Massachusetts in 1980 led the investigation to a completely wrong source and an innocent man was imprisoned.
This story also brings the significance of the Innocence Project to our cinema screens. Winchester University is currently a member of the project and I am proud of it.
Betty Anne (played by Hilary Swank), single mother spends a decade earning a law degree so she can represent her brother at court. She managed to locate biological evidence and then worked with the Innocence Project, to obtain DNA testing on the evidence. Her love, faith and devotion led to proving Waters' innocence and his exoneration on June 19, 2001.
Betty crushes the conviction by revealing the corruption of the police officer Nancy Taylor played by Melissa Leo, a cop who pins the murder on Kenny.
The story is deeply moving and shows heroic actions of Betty, who from a just an average citizen living peacefully with her family and enjoying her life became an extraordinary hero, fearless and unbreakable even when her whole world stood against her. She did not give in and never lost her faith in her brother's innocence.
The fact that the film was based on this extraordinary story shows a great taste and idea for film played by award winning actors.
Bearing all above in mind I was unpleasantly surprised by the lack of audience in the cinema and some of the reviews in the cinema I happened to be watching it at.
Reading comments and reviews on the film like for example one of popular websites, has only given Conviction "generally positive reviews" with an average score of 6.2/10 which I completely disagree with. Further on I read "he critical consensus is: Less compelling -- and more manipulative -- than it should be, Conviction benefits from its compelling true story and a pair of solid performances from Swank and Rockwell. Another review aggregator Metacritic assigned the film a weighted average score of 59 out of 100, indicating "mixed or average reviews".
True stories like this should be rated in it's own individual and category. The play of actors perhaps can be judged performance wise (which I would give 9/10) but the story is real, we can not judge the reality in which someone's life has nearly been wasted in prison for a wrongful conviction. The answer to that is quite simple. We can not.
References:
1. http://en.wikipedia.org/wiki/Conviction_(film)
2. http://www.imdb.com/title/tt1244754/
3. http://www.telegraph.co.uk/culture/film/filmreviews/8070463/Conviction-London-Film-Festival-review.html
4. http://www.guardian.co.uk/film/2011/jan/13/conviction-review
5. shttp://www.youtube.com/watch?v=NrPtr0aQx3s
One first comments underneath this film's trailer follows: " Someone please tell me what is wrong with Hollywood and why this movie was not awarded an Oscar or Golden Globe? This movie was the best I have ever seen. (...) I hope this movie inspires you to do the same for your family if God forbid something like this should happen. I wish Hollywood would have reconsidered. I say it was better then Black Swan and deserved an award. Hillary Swank was awesome as was Sam Rockwell who played Kenny." (Ref. 5)
"Conviction is a 2010 drama film directed by Tony Goldwyn. It stars Hilary Swank as Betty Anne Waters and Sam Rockwell as her brother Kenneth Waters. The film premiered on September 11, 2010, at the Toronto Film Festival and was released on October 15, 2010." (Ref.1)
The film is based on the true story of Betty Anne Waters, an unemployed single mother who, with the help of attorney Barry Scheck from the Innocence Project, exonerated her wrongfully convicted brother. In order to do this she earned her GED, then her bachelor's, a master's in education, and eventually a law degree from Roger Williams University in Rhode Island. She accomplished this while raising two boys alone and working as a waitress part-time. While in law school, she began investigating her brother's case.
The story of a true murder and real conviction of Kenny who was so fantastically acted as by Sam Rockwell took place in1983.
The murder of Katharina Brow in Ayer, Massachusetts in 1980 led the investigation to a completely wrong source and an innocent man was imprisoned.
This story also brings the significance of the Innocence Project to our cinema screens. Winchester University is currently a member of the project and I am proud of it.
Betty Anne (played by Hilary Swank), single mother spends a decade earning a law degree so she can represent her brother at court. She managed to locate biological evidence and then worked with the Innocence Project, to obtain DNA testing on the evidence. Her love, faith and devotion led to proving Waters' innocence and his exoneration on June 19, 2001.
Betty crushes the conviction by revealing the corruption of the police officer Nancy Taylor played by Melissa Leo, a cop who pins the murder on Kenny.
The story is deeply moving and shows heroic actions of Betty, who from a just an average citizen living peacefully with her family and enjoying her life became an extraordinary hero, fearless and unbreakable even when her whole world stood against her. She did not give in and never lost her faith in her brother's innocence.
The fact that the film was based on this extraordinary story shows a great taste and idea for film played by award winning actors.
Bearing all above in mind I was unpleasantly surprised by the lack of audience in the cinema and some of the reviews in the cinema I happened to be watching it at.
Reading comments and reviews on the film like for example one of popular websites, has only given Conviction "generally positive reviews" with an average score of 6.2/10 which I completely disagree with. Further on I read "he critical consensus is: Less compelling -- and more manipulative -- than it should be, Conviction benefits from its compelling true story and a pair of solid performances from Swank and Rockwell. Another review aggregator Metacritic assigned the film a weighted average score of 59 out of 100, indicating "mixed or average reviews".
True stories like this should be rated in it's own individual and category. The play of actors perhaps can be judged performance wise (which I would give 9/10) but the story is real, we can not judge the reality in which someone's life has nearly been wasted in prison for a wrongful conviction. The answer to that is quite simple. We can not.
References:
1. http://en.wikipedia.org/wiki/Conviction_(film)
2. http://www.imdb.com/title/tt1244754/
3. http://www.telegraph.co.uk/culture/film/filmreviews/8070463/Conviction-London-Film-Festival-review.html
4. http://www.guardian.co.uk/film/2011/jan/13/conviction-review
5. shttp://www.youtube.com/watch?v=NrPtr0aQx3s
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