" 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
