Criminal Law (Term Paper Sample)

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Question 1
Introduction
Generally, recklessness in criminal law is the act of taking risks that cannot be justified under the law. It gives a lot of difficulty under criminal law. In particular, there is trouble when it comes to making a determination whether to apply a subjective or the objective test in determining recklessness. In R v G & R [2003] 3 WLR House of Lords, Two appellants, aged went for a camping adventure without their parents consent. They were minors aged 11 and 12 years. They boys came across some used newspapers outside a Co-op which they set on fire and then dropped under a wheelie bin. They assumed that they would burn out and so they left without putting the out. Consequently, the burning papers set on fire the wheelie bin and the fire spread causing damage worth more than £1m. the court quashed the convictions of the two boys. The House overruled by the MPC v Caldwell [1982] AC 341.It came out that the test for recklessness for criminal damage is[E-lawresources.co.UK Mens rea – Reckless Available at http://e-lawresources.co.uk/Mens-rea-reckless.php accessed 27th April 2015.]
"A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to –
1 He is well informed of the risk that is associated with the act he intends to engage in or is aware that such risks will exist.
2 A result when he is aware
3 A circumstance when he is aware of a risk that it exists or will exist;
4 He is aware of a risk that the risk will occur and it is, in the prevailing circumstances well known to him that it is unreasonable to take the risk."
MPC v Caldwell [1982] AC 341 The decision in this case led to what is commonly known as the Caldwell recklessness. According to this principle, a person is said to be reckless when the property is destroyed or damaged where (1) an act which in fact presents a possibility for occurrence of obvious risk that exposes the property to destroyed or damaged. and also, when such a person performs an act that he or she either has not bothered to given any thought as to the probability of there existing any risk or has knowledge may be some risk involved but has nonetheless gone ahead to do it.[E-lawresources.co.UK Mens rea(n 1 above)]
Caldwell recklessness fundamentally changed the law and received extensive criticism. The tension was increased in the pull between subjective and objective tests of recklessness. The trouble with a subjective test is that the test was based wholly on the defendant's state of mind. The duty to prove that the defendant was in a position to foresee the risk solely remained on the prosecutor. It is agreeable in legal practice that it is not easy to prove the state of mind of a person. This approach provided a chance for many defendants to escape the grip of the law. Most of them presented lack of a proper state of mind to foresee risk. Nevertheless, Caldwell recklessness test is adapted to of causing injustices as it places liability on those who frankly did not foresee the occurrence of a risk, including those people who are not in a position to foreseeing a risk as the case of  [E-lawresources.co.UK Mens rea(n 2 above)]
Elliott v C [1983] 1 WLR 939. A 14-year old girl of little intelligence started a fire in a shed. She poured white spirit on the floor and lit it. The court applied the test set in R v Caldwell but confined himself to "an obvious risk" the court acquitted the girl since she might not have given her acts a thought. Therefore the risk would not have been obvious to her.
and this risk would not have been obvious to her or appreciated by her if she had thought about the matter. The prosecution appealed by way of case stated.
Current applied tests
Today, what recklessness is varies, subjective and objective tests are always applied in determining whether there was recklessness. The term subjective recklessness first appeared In R v Cunningham [1957] as a version of recklessness commonly known as ‘Cunningham Recklessness’, was developed. The offences that can be committed due to this recklessness include non-fatal offences against the person as well as rape. The Cunningham recklessness serves as a test for recklessness. Under this test, the court considers whether or not a person A consciously undertook an unjustified risk.
Interestingly, In MPC v Caldwell (1982) and R v Lawrence [1982].objective recklessness was developed on the very same day the subjective test was developed in Cunningham’ first appeared. This became attest for recklessness and it is also known as called ‘Caldwell/Lawrence Recklessness’
There are very limited offences that can be committed with Lawrence Recklessness following the decision in R v G 
Then court under this test examines not mines whether or not there was obvious risk that a person A consciously offered to take or unconsciously took. It is a two limbs test whereby A does any act that creates serous but not negligible risk that have to be obvious to a prudent and reasonable man. Secondly, the court looks at the other limb whereby the court assess whether a person A was aware of existing risk but nonetheless choose to take it.
Evaluating Herring
Based on the current tests used to establish mens rea in recklessness, the law has not stabilized or com up with a balance in the test. As Jonathan Herring observes, Mens rea is the legal term for describing the mental state of a defendant. This mental state describes the criminal element in an offence classified under criminal law. He further states that there is no constant mental state for all crimes. According to him, different crimes possess different mens rea: some necessitate prove of intention while others recklessness. Negligence is also another mental state which may require prove for some crimes. In additional to this, knowledge may need to be proved in other crimes while other may not need prove of mens rea at all. Some crimes do not require proof of any mental state of the defendant. (Herring (2008) p.778)
Conclusion
There are a number of test opposing each other as noted in the paper. Good laws are consistent with each other and where principles are found to operate; different principle should complement rather than contradict each other. As a mater of fact, the existing tests in criminal recklessness should be harmonized to ease the duties of key players in delivery of justice. For instance, when the mental state of an individual is solely relied on when establishing recklessness, prosecutors will have a difficult in trying to prove the mental state of an accused person. In such a case, many guilty persons may escape the grip of the law,
Question 2
Advise to Gary
First the issues identified from the conduct of Gary are as followed. Gary seems to have been offending Ann by blocking the entrance to the house. His actions seems to be encouraged by the fact that he has been instructed that shelly does not move out more often so it would not be an issue if he parks outside Anna’s entrance. Due to his actions, Ann is angry and she comes yelling at him. In reaction to this, Gary grabs a spanner from his tool box and runs out of the house towards Anna. Gary smashes the spanner down on the head of the garden rake. The garden rake breaks into two pieces. In additional to that, Gary seems to be angry with Mark who comes shouting at them. Consequently, makes a dent in the side of the raspberry bath with the blunt end of a hammer and instruct Julie to take it back from where it ws bought now that it contained a dent. Further, Gary he places his tile cutter on the shelf. He knows that the shelf is only partially attached to the wall but he thinks it will be fine for a minute. However, the shelf gives way. The tile cutter falls into the sink causing a large crack
Following the following case scenario, Gary is to be found liable for a criminal offences committed by him as evident by his actions. To begin with, for him to be liable under criminal law, two things must be established, mens rea and actus reas.Gary has is liable for criminal recklessness for the in the following acts- grabbing a spanner from his tool box and runs out of the house towards Anna. Which results in smashing the spanner down on the head of the garden rake garden rake breaks it into two pieces. He has caused damage to the garden rake by breaking it into two pieces.
He is also liable for causing damage to the makes a dent in the raspberry bath with the blunt end of a hammer.
Assessing his actions, he is liable for damages mentioned above. The reasons for his liability is due to his action of engaging in actions which are reasonably foreseen as acts which could be risky to engage in. in addition to this, Gary is liable for criminal recklessness for throwing a brick towards Shelly’s front window. Particularly at this point of time, Gary’s intention to cause a crime is more pronounced, ‘’He wants Shelly to suffer the same inconvenience of carrying out repairs and also hopes she suffers a fright at having a brick land in her front room. His acts results in injuries of another neighbor’s feet. It is clear that he had no intention to harm that particular neighbor. Nonetheless, mistake is no defense in law. He cannot say that he did n...