CRIMINAL LAW
TABLE OF CONTENT
Task 01 Page No.
3-6 I. Explain with illustrations the nature and definition of crime in the context of criminal law (1.1)
7 II. What illustrations the relevant elements of crime which you can identify in the given scenario 01? (1.2)
8-19
III. There are different levels of mens rea. To be guilty, the accused must have at least the minimum level of mens rea required for the offence. Critically analyze this statement with the relevant statutes and relevant case law. (1.3)
IV. Critically analyse with the relevant provisions of Penal code 20 and decided cases whether Janaka and Amal criminally liable for Sujith’s death. (1.4)
Task 02
I. Describe the defense available under the Penal Code of Sri 21-23 Lanka for the offences referred in the given Scenario (2a) (2.1)
II. Critically assess whether defence of duress is available to 24 Kannan for the offence referred in the given scenario 2(b) under the Sri Lankan and English law.(2.2)
III. With reference to relevant section and illustrations of Penal 25-33 critically discuss the defense of Private defense and necessity (2.3)
Task 03
I. In the context of the above statement (task 3) critically 34 examine the position of law relating to offences where secondary party (to an offence) could be found guilty even though the principal offender is acquitted.(3.1)
II. Identify the role of principal offender and secondary offender 35-37 under the criminal law (3.2)
III. The legal effect and punishment for attempted crimes are 38 different fro committed crimes. Discuss (3.3)
39
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IV. Critically evaluate the legal principles articulated in the cases of R v Bourne (1952) App R 1251 and R v Coagan and Leak (1976) QB 217, in the context of participation in crimes. (3.4)
V. The offence under the Criminal law, generally classified into 40-51 offence committed against person and offence committed against property. Critically evaluate this statement with relevant statutory provisions and decided cases. (3.5)
Task 04
I. Critically examine the jurisdiction of the criminal courts and 52-62 Criminal procedures in the context of criminal proceeding in Sri Lanka. (4.1)
II. Identify the provisions in the Penal Code and Code of 63-67 Criminal Procedure of Sri Lanka in respect of crimes referred in the scenario (4.2)
III. Briefly describe the law relating to bail and identify whether 68 the offences referred in the scenario are bailable or non bailable (4.3)
Consulted works 69
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1.1 Explain with illustrations the nature and definition of crime in the context of criminal law.
Introduction
"A crime is an unlawful act or default which is an offence against the public and renders the person guilty of the act or default liable to legal punishment.” 1 In case Board of Trade v Owen (1957)2 Lord Tucker also considered that the correct definition of a crime in the criminal law was the above passage from Halsbury's Laws of England. When somebody is participating for a crime he makes himself criminally liable.
Discussion
According to the peal code offence is a thing made punishable by the penal code or under any other law.3
Main purposes of criminal law are;
a. Protect individuals and there property from harm b. Preserve order in society c. Punish those who deserve punishments
There are two branches of criminal law;
a. Substantive Criminal law - physical and mental element a crime, general principal of intention and causation, the defense available and other general rules
b. Procedural Criminal law – include rules of procedure or evidence or sentencing theory and practice
Classification of Offences, 4
(1) Police powers a) Indictable offences b) Indictable offences c) Terrorism offences d) "Hybrid" offences
(2) Source of law
a) Common law (judge made) b) Statutory (defined in an act of parliament) c) Regulatory (set out in delegated legislation)
(3) Type offence
a) Offence against the person b) Offence against property c) Offence against public order
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Penal code has classified criminal offences under 17 topics,
1. offences affecting the human body 2. offences against property of theft 3. offences against the state 4. offences relating to the navy, army and air force 5. offences against the public tranquility 6. offences by or relating to public servants 7. offences relating to elections 8. contempt of the lawful authority of public servants 9. false evidence and offences against public justice 10. offences relating to coin and government stamps Offence against 11. offences relating to weights and measures 12. Offences affecting the public health. safety, convenience, Public order Decency. And morals 13. offences relating to religion 14. Offences relating to documents. property-marks, currency Notes and bank notes 15. criminal intimidation, insult, and annoyance 16. unlawful oaths 17. attempts to commit offences
(4) Place of trial a) Indictable only offences b) Trialable either way offences c) Summary offences
Also Penal code has stated the punishments which offenders are liable,
a. Death b. Imprisonment ( simple & rigorous ) c. Whipping d. Forfeiture of property e. Fine
Elements of a crime
Crime = Actus Reus + Mens rea + Absence of a defense5
1. Actus reus (guilty act);
A. A prohibited voluntary act – D guilty of manslaughter of V, who died in their care, by gross negligence, not by an unlawful act [Stone & Dobinson (1977)]6
B. A failure to act (an omission) – D found guilty of arson. He failed to put out a fire which came from his lit cigarette. [Miller (1983)]7
In the case of Actus Reus of a crime, it need not simply be voluntary to satisfy the Actus Reus. D found drunk in hospital. He was chased to public highway by policemen. Later he
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was charged with being found drunk in the highway. [Winzar v Chief Constable of Kent (1983)] 8
The Theory of Causation The act of the defendant must cause the result or the crime. Causation is like a chain. That mean defendants actions should be a direct link of the end result which is consider as the criminal act. An intervening act at somewhere of the incident may break the chain of causation. Because of that he will not find guilty.
1. D’s action must be a factual cause of criminal act- In R v White (1910)9 D tried to poison and kill his mother. But unexpectedly she died because of natural causes before he could give it to her. He was not guilty for her death. Because poisoning was not the factual cause of criminal act.
2. D’s actions need not be the sole cause of criminal act – In case R v Pagett (1983)10 D used his pregnant girlfriend as a human shield in hostage situation. Later she died in police gunfire. But he found guilty because his actions need only be a substantial cause of death.
3 Thin Skull Rule – “You must find your victim as you find him.”11 This means that the defendant cannot escape liability if the victim suffers more harm than would otherwise be expected due to his act under normal circumstance. D was not given excuse simply because she didn’t know V was more susceptible to serious injury or death fro her act. [R v Blaue (1975)12]
4 If V kills due to Medical intervention, D may still be liable – In case R v Smith (1959)13 “an operating and substantial cause of death” of V. In R v Cheshire (1991)14 D’s acts need not be the sole or even the main cause of death. , he died due to other reasons as well. Again in R v Jordan (1956)15 “palpably wrong medical treatment” cause the death of V. In all above three cases V died not directly because of D’s act, but it initiate the consequence and final result was the death.
2. Mens rea (guilty mind) - Mens rea has two divisions as Intention and Recklessness.
(1) Intention – It can be direct or indirect.
Direct; - the accused desires the outcome. And he sets out to ensure it occurs;
Or
Indirect; - the accused does not desire the outcome. But he recognizes that crime is a virtual certainty. (R v Woollin [1998]) 16
(2) Recklessness - There is now only one test for recklessness (subjective). Did the D foresee there was a risk involved? R v G and R (2003)17 – the Ds, aged 11 and 12, set fire to a wheelie bin. Fire spread causing damage to the neighboring building. Ds did not appreciate the risk – found not guilty (follows R v Cunningham).
3. Strict liability-
In offences under strict liability the Defendant only needs to commit the Actus Reus to be found guilty of the crime. The D’s state of mind at the time is irrelevant and not takes into consideration. Someone may think it is unfair on the D who is committing a crime but may
5 | P a g e CRIMINAL LAW not realize it. In Meah v Roberts (1977)18 two children asked for lemonade. But by mistake they were served with caustic soda. D found guilty of selling food unsuited for human consumption.
Conclusion
Criminal law is usually categorized under the public law. Because of the crimes are considered as wrong doings against the people, though it might affect only one person. Hence it considers as the acts against the State and they are punished by the State. Again the person who is committed an offence will be punished in some manner prescribed by the State. In Woolmington v DPP (1935)19 articulating the ruling, Viscount Sankey made his famous "Golden thread" speech;
“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 what I have already said as to the defense of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. 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. When dealing with a murder case the Crown must prove;
1. Death as the result of a voluntary act of the accused; and
2. Malice of the accused.”
Reference
1. Halsbury’s Laws of England, Edited by: The Right Honourable Lord MacKay of Clashfern, ISBN: 0406047766 , LexisNexis Butterworths 3rd Ed., Vol 10, p. 271 2. Trade v Owen (1957) [1957] AC 602, HL(E) 3. S.38 Penal code 4. UNLOCKING CRIMINAL LAW, Jacqueline Martine & Tony Storey, ISBN: 978 444 109 153, Hodder Education an Hachette UK Company, 3rd Ed. , pp 11-12 5. http://sixthformlaw.info/01_modules/mod3a/3_10_principles/01_principles_actus_crime_ definition.htm on 24 Sept 2011 6. Stone & Dobinson (1977) QB 354 7. Miller (1983) UKHL 6 8. Winzar v Chief Constable of Kent (1983) 9. R v White (1910) 10. R v Pagett (1983) 11. http://www.lawiki.org/lawwiki/Thin_skull_rule on 24 Sept 2011 12. R v Blaue (1975) 13. R v Smith (1959) 14. R v Cheshire (1991) 15. R v Jordan (1956) 16. R v Woollin [1998] 17. R v G and R (2003) 18. Meah v Roberts (1977) 19. Woolmington v DPP (1935) AC 462
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1.2 What illustrations the relevant elements of crime which you can identify in the given scenario 01? (Presentation)
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1.3 There are different levels of mens rea. To be guilty, the accused must have at least the minimum level of mens rea required for the offence. Critically analyze this statement with the relevant statutes and relevant case law.
Introduction
Mens rea is the mental elements of a crime. Different levels of mens rea can be identified under following categories; 1
Direct intention 1. intention Oblique intention 2. recklessness 3. negligence 4. dishonesty 5. transferred malice Discussion
1. intention
a) Direct intention- Someone’s aim, desire or purpose.
In Calhaem [1985]2 D was infatuated with her solicitor and wished to remove his girlfriend from him. She hired a professional killer to murder the girl. He alleged that he visited V's house with an attempt to pretend to kill. However after she screamed and panicked and he killed her. Then he was convicted of Murder and D found guilty of being a secondary offender. She appealed on the basis that her counseling of the contract killer had to be a substantial cause of the killing. Court of Appeal rejected the appeal and agreed with the trial judge that clearly D has direct intent to kill.
b) Oblique intention-Here D does not necessarily desire an outcome but realizes that it is almost inevitable.3
DPP v Smith [1960]4 D tried to escape from the police in a car. He was signaled to stop. He did not stop. A Police man jumped onto the car's bonnet. D drove at high speed until the officer was thrown off and killed. The court held that it was clear that he had intended to cause grievous bodily harm, which meant no more and no less than really serious injury. His initial intention was just to escape from the police but later it changed.
Criminal Justice Act 1967 explains about Proof of criminal intent; “A court or jury, in determining whether a person has committed an offence;
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a. shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but
b. shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.5 2. Recklessness-
Here D takes an unjustifiable risk of a particular consequence occurring with awareness of that risk. This is a sufficient mens rea for mans rea.
E.g.: Manslaughter, Malicious wounding, Inflicting grievous bodily harm, Assaulting occasioning actual bodily harm
To prove mens rea of Recklessness court uses the Cunningham test which explain later part of this question.
R v Kimber (1983)6 D assaulted indecently a female patient in a mental hospital. He admitted that he was not interested in her feelings at all and this was recklessness. Court held that recklessness in indecent assault cases is subjective. D found guilty no miscarriage of justice despite misdirection. 3. Negligence-
D IS liable if he or she fails to appreciate circumstances or consequences that would have been appreciated by the reasonable man.
4. Dishonesty-
This form of mens rea is stated in Theft Act 1968 & Fraud Act 2006, but neither of them has defined it exactly. Therefore there was an argument whether this should be tested subjectively or objectively. Anyway in Ghosh (1982)7 the court was introduced a hybrid test.
5. Transferred malice-
The word "maliciously" meant foresight of the consequence.
R v Latimer (1886)8 A soldier argued with another man C in a pub. During the argument soldier took off his belt swung it at C. It missed C and wounded the V. Court held that the intention to strike C was transferred to V under the doctrine of transferred malice. The soldier found guilty.
There is a maxim, saying that;
‘Actus non facit reum nisi mens sit rea’
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This means it is not proper to punish a man criminally unless he had a guilty mind. According to this it is very clear accused’s state of mind has a vital bearing on his responsibility.
Mistake is a general defense. If someone is done an offence by mistake no mens rea can be found. To prove mistake need a subjective test. In B (a minor) v DPP [2000]9 D was aged 15 boy incited a girl under 14 years and asked her several times for a ‘shiner’ (oral sex). He honestly believed the girl to be over 14. The court held defendant not guilty. There court defined, the mental element in a crime was concerned with a subjective state of mind.
“Is there here a compellingly clear implication that Parliament should be taken to have intended that the ordinary common law requirement of a mental element should be excluded in respect of the age ingredient of the new offence? Thus far, having regard especially to the breadth of the offence and the gravity of the stigma and penal consequences which a conviction brings, I see no sufficient ground for so concluding.”
It is clear that the law never require the mistake have been reasonable if the honesty of the mind is proved.
Some offences need specific intention. [E.g. unlawful wounding (s18) under English law] in R v Belfon [1976]10 D attacked and slashed victims with a razor, causing severe wounds to his head and chest, with intent. But court held that he was not guilty, by saying that; “[D]..had certainly foreseen the risk of such consequences, but it had not been proved that he had the specific intent required for the more serious offence”
In R v Caldwell (1982)11 Lord Diplock stated that; ”It is unnecessary to classify the offence as one of specific or basic intent, since, as far as recklessness is concerned, evidence of intoxication is logically irrelevant and therefore no defence anyway.” There D was guilty for setting fire by night to a residential hotel where he had been employed. House of Lords formulated the test later known as ‘Caldwell recklessness’: A person is reckless as to whether property is destroyed or damaged where:
(1) His act creates an obvious risk that property will be destroyed or damaged and
(2) When he does it he either; a) has not given enough consideration about the possibility of such risk; or b) has recognised the risk and has nonetheless gone on to do it.
But in R v G & R [2003]12 House of overruled MPC v Caldwell [1982] decision. Two boys, aged 11 and 12, went out at night without their parents’ permission. They lit old newspapers with a lighter and threw them under a wheelie bin. They then left without putting them out and the fire spread to a shop and caused over £1m of damage.
Court quashed convictions and introduced new test for recklessness. The appropriate test of recklessness for criminal damage is:
"A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to –
(I) a circumstance when he is aware of a risk that it exists or will exist;
(ii) a result when he is aware of a risk that it will occur;
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and it is, in the circumstances known to him, unreasonable to take the risk."
R v Crossman (1986)13 is a case where D found Guilty for driving recklessly. He was driving with the knowledge that by doing so he was putting other road users at risk of serious injury or death. It is clear that though someone do not have intend to do a crime, if he has done the Actus reus of the crime because of recklessness still it is a crime. Murder is most serious offence against human body. In a murder it is not need to be proved the intention for murder. Intention to commit homicide or grievous bodily harm, but not to cause death is sufficient to prove Mens rea.
R v Cunningham (1981)14 D attacked V by hitting him repeatedly with a chair, which resulted in V s. death. Court held D guilty and said he must have foreseen a risk and recklessly gone ahead and taken it.
Lord Hailsham LC: "malice aforethought has never been limited to the intention to kill or to endanger life".
Lord Edmund-Davies: "I find it strange passing that a person can be convicted of murder if death results from, say, his intentional breaking of another's arm, it no doubt constituting "really serious harm. But I recognise the force of the contrary view that the outcome of intentionally inflicting serious harm can be so unpredictable that anyone prepared to act so wickedly has little ground for complaint if, where death results, he is convicted and punished as severely as one who intended to kill."
In Data Protection Registrar v Amnesty International [1995]15 court held only some regulatory offences such as the requirements of the Data Protection Act (offences of misusing data), require Caldwell recklessness.
Rose LJ stated that: “To establish recklessness, the prosecution “must prove first that there is something in the circumstances that would have drawn the attention of an ordinary, prudent individual to the possibility that this act was capable of causing the kind of mischief that the Act intended to prevent and that the risk of those mischief occurring was not so slight that the ordinary, prudent individual would feel justified in regarding them as negligible. Secondly the prosecution must prove that before doing the act, the defendant either failed to give any thought to the possibility of their being such a risk, or, having recognised that there was such a risk, he nevertheless went on to do it.”
W (A minor) v Dolbey [1983]16 was a case which defines recklessness and malice intention is not the same. D shot V with an air rifle believing that it had run out of pellets. Court said that he genuinely believed that he had used the last pellet. He ignored the risk that it might be loaded and so D was reckless. The court squashed the conviction of D and held that, to prove malice intention prosecutor must show D actually foresaw that a particular kind of harm might be done to his victim. In this case he had not. In Caldwell malice intention and recklessness were clearly distinguished.
DPP v A [2000]17, here court explain the level of foresight required to prove the mens rea of an offence. A and S entered to a game. They agreed to shoot at each other below the knee with air pistols. Both were wearing cricket pads for protection. But A fired a shot at S which hit the eye. Court held, “Maliciously for the purposes of s 20 of the ‘Offences Against the
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Person Act 1861’ meant actual intention or recklessness as to whether a particular type of harm "might" be done, thus it would be sufficient that only slight harm had been foreseen.” Anyway the matter would therefore be remitted to a fresh bench of justices for reconsideration.
R v Farrell [1989]18 showed objective recklessness which expressed in Caldwell is not enough for some offences. [E.g. Assault (s 20)] D shot V with a crossbow. But he said it was an accident. Held that not guilty. Objective recklessness was not enough to support a s.20 conviction. Even a clear intention to frighten V, which is sufficient for common assault, would not be enough for unlawful wounding unless D had given some thought to the possible consequences.
Flack v Hunt (1979)19 D shot M by firing into bushes. M was hiding there. D was only intending to frighten him. D suspected M was poaching in his woods. It was held that D had not foreseen the risk of harm. Again he had considered the matter and decided there was no risk and D was not guilty.
R v Forbes (2000)20 D imported two pornographic videos. Although he believed the videos were banned in the UK. He did not know that they contained indecent photographs of children under the age of 16. Court held that it was not necessary for the prosecution to prove that D knew the nature of the material. It is sufficient only that he knew it was indecent. He was guilty.
R v Grimshaw (1984)21 D was in a pub when someone insulted her boyfriend. She pushed the glass he was holding into his face. It was held, she would only have had the mens rea if she had at least foreseen that he might suffer some harm. It was satisfied only by proof of what D actually foresaw. The trial judge directed the jury to consider whether she should have foreseen the risk of harm. Anyway it was only a minor harm. Not Guilty.
DPP v K (1990)22 D who was a student placed acid in a hot air drier to hide it from his teachers. Later V used the drier and the acid caused burns on his face. The court held if the charge was simply battery, it is not necessary to prove harm, and he was guilty.
Parker LJ stated: D had "just as truly assaulted the next user of the machine V as if D had himself switched the machine on".
This case was decided on Caldwell Recklessness but on that point was overruled by Sprat, which was later confirmed by Parmenter, which states that Cunningham Recklessness is the test for assaults. The House of Lords settled the issue in Parmenter and Savage They also upheld Roberts (1971).
R v Scalley [1995]23 D set fire to a house by pushing lighted newspaper through the letterbox. A child died in the fire. D was charged with murder. The judge told the jury they should convict the defendant if they were sure that D intended death or grievous bodily harm. The judge should have made it clear that foresight was merely evidence of intent and it was not to be equated with. It held that not guilty of murder but guilty of manslaughter.
R v Seymour (1983)24 a driver collided his lorry with a car. When the driver of the car V got out of the car D drove his lorry into the car and V was crushed between the two vehicles. V was killed. D was convicted of manslaughter. Court held: Defendant was Guilty of death by reckless driving and manslaughter. Case where death was caused by reckless driving was Lord Diplock's dicta in Lawrence. Lord Roskill:
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"there is………. a need to prescribe a single and simple meaning of the adjective "reckless" and the adverb recklessly throughout criminal law ... That simple and single meaning should be the ordinary meaning of those words as stated in this House in R v Caldwell and in R v Lawrence".
R v Sheehan & Moore [1975]25 Two defendants in a drunken state poured petrol over V and burned him to death. It was held that the question was not whether defendants were capable of forming the necessary intention but whether they had in fact done so. They were not guilty of murder but guilty of manslaughter.
R v Stubbs (1989)26 D in a drunken state stabbed V causing grievous hurt. He was charged under s.18. Held that although the absence of mens rea due to drunkenness would be a defence to a crime of specific intent that drunkenness would have to be very extreme to justify reducing a s.18 offence to s.20. He was not guilty.
Accused must have at least the minimum level of mens rea as well as correct mens rea to be guilty for specific offence. R v Taaffe (1984)27 D wrongly believed that importing currency was illegal. Therefore he sought to smuggle several currency packages from Holland. He had been enlisted by a third party to import cannabis. There was no such offence of importing currency at that time. He could not be liable for attempting a crime that does not exist. The court held that, for this offence D must be judged on the facts as he believed them to be. His mens rea for a non existent crime could not be imported to the smuggling of drugs.
D's mistake of law could not convert the importation of currency into a criminal offence and importing currency is what D had assumed he was doing. He was not guilty. Hereafter this has know as the Taaffe defence. This is much favoured by smugglers.
Actus Reus and mens rea of an offence can be quite separate in time and geography. In Jakeman (1982)28 the mens rea occurred in Ghana, and the Actus Reus was by the innocent agency of Paris.
Conclusion
Different offences need different level of mens rea. To be guilty, the accused must have at least the minimum level of mens rea required for the offence. Level of mens rea needed for different offences has mentioned in common law and statutes.
Penal code has clearly stated the level of mens rea needed for different offences under each section. They can be highlighted as follow. (Table 1.0)
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Criminal offences Penal code Physical element Mental element section (1) culpable homicide 293 causes death by intention of causing doing an act death or causing such bodily injury as is likely to cause death or with the (2) Murder knowledge 294 commits such act without any excuse intention of causing for incurring the risk death intention of of causing death or causing bodily such injury as knows that it is so (3) Abetment of suicide aforesaid imminently dangerous injury 299 any act (4) Miscarriage intention or 303 causes a woman with knowledge child to miscarry (5) Cruelty to children voluntarily……. not caused in good faith 308A assaults, ill-treats , (intention) neglects, or abandons such willfully(intention) person or causes or (6) Cause hurt/ Grievous procures such hurt person
(7) Assault 310 & 311 causes bodily pain, disease, or infirmity Causes (Intention or (8) Sexual harassment knowledge) 342 makes any gesture or any preparation intending or knowing 345 assault or use of criminal force, (9) Kidnapping sexually harasses causes sexual annoyance or harassment (with Intention)
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(10) Abduction 350 conveys any person beyond the limits of Sri Lanka without the without the consent consent or takes or (Intention ) entices any …
(11) Sexual exploitation of 353 by force compels children abuse of authority by force compels, or by any deceitful means, or by abuse (12) Trafficking of authority (Intention) 360B child to be sexually (13) Soliciting a child abused.. participate in any form of sexual Knowingly… (14) Rape activity
(15) Incest 360C buys, sells or barters or instigates another person to buy Intention (16) Unnatural offence 360E solicits
(17) Acts of gross 363 sexual intercourse Purpose(= Intention) indecency between persons Without consent 364A sexual intercourse (18) Grave sexual abuse Intention or 365 carnal intercourse knowledge
(19) Theft Voluntarily (Intention 365A act of gross or knowledge) indecency (20) Extortion gross indecency (Intention) (21) Robbery 365B committed any act for sexual (22) Dishonest gratification misappropriation of (=Intention) property 366 moves that property intending to take (23) Criminal breach of dishonestly trust 372 puts any person in fear intentionally …
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(24) Cheating dishonestly 379 committing of the theft voluntarily (=Intention) 386 misappropriate Dishonestly
388 misappropriate Dishonestly
398 deceived to deliver any property fraudulently or dishonestly
Table 1.0
The Common law approach on the level of mens rea is appreciatable. Level of mens rea for different offences can be identified in case law. They show much progressive approach by being much flexible than statutory law. They have been developed through many cases over centuries. (Table1.2)
Related offence Common Law rules on Mens Rea Related Case or concept examples Criminal Damage In criminal damage recklessness is the Caldwell, R v (1982) test for Criminal Damage is always objective recklessness reckless or Mens rea subjective recklessness used in Cunningham, v[1957] intention most crimes malice means reckless or intention murder Mens rea of murder, intention to commit Cunningham,R v 1981) homicide or grievous bodily harm murder For Mens rea of murder, intention to kill or Smith, DPP v [1960] intention to GBH is needed. intention can be formed instantly and can be inferred murder Mens rea of murder, intention can be Re A (Children) (2000) inferred held to have caused that death and to have done so intentionally, even though that would not have been his primary motive. murder Mens rea of murder, intention includes Nedrick, R v (1986) knowledge or foresight murder In mens rea of murder foresight is evidence Scalley, R v [1995] of intent, not necessarily is intent. The judge should have made it clear that foresight was merely evidence of intent and was not to be equated with it. murder For murder intention must be proved Sheehan & Moore, R v [1975]
16 | P a g e CRIMINAL LAW murder Mens rea of murder, intention not formed Lipman, R v [1969] when intoxicated. manslaughter Mens rea of transferred malice in Mitchell, R v [1983] manslaughter. D intention to assault X can transferred to C. mistake to prove mens rea general defences of B (a minor) v DPP mistake need subjective test Offences under Only some regulatory offences, such as the Data Protection Data Protection requirements of the Data Protection Act Registrar v Amnesty Act require Caldwell Recklessness International[1995] Grievous bodily Mens rea of assault (s20) GBH need to Grimshaw, R v(1984) harm(GBH) foresee some harm not necessarily the harm caused. She would only have had the mens rea if she had at least foreseen that he might suffer some harm. s.20 was satisfied only by proof of what D actually foresaw Grievous bodily In Mens rea of (s20) GBH not only foresaw DPP v A [2000] harm(GBH) but also level of foresight required pornography For mens rea in pornography knowledge is Forbes (Giles), R v sufficient. video recordings It was not (2000) necessary for the prosecution to prove that D knew the nature of the material only that he knew it was indecent transferred malice Mens rea of transferred malice must be Latimer, R v (1886 same crime. The intention to strike C was transferred to V under the doctrine of transferred malice, although the result, in some respects, is an unintended one. assault Mens rea of transferred malice in assault Pembliton, R v(1874) cannot be transferred to a different offence; His "malice" in intending to strike another person could not be transferred to an intention to break the window. assault Mens rea of assault did D, or would D, if Richardson & Irwin, sober, foresee the consequences V can R v [1999] consent to horseplay what another person would have foreseen but what DD themselves would have foreseen had they been sober. assault Mens rea of Cunningham recklessness K, DPP v (1990) required in assault. D had "just as truly assaulted the next user of the machine V as if D had himself switched the machine on" assaults Mens rea of Cunningham Recklessness Spratt, R v (1990) applicable in assaults. In cases involving offences against the person, subjective
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foresight under the Cunningham test is required to prove recklessness. Assault Assault (Sec 20) objective recklessness Farrell, R v [1989] (Caldwell) not enough. Assault Mens rea assault specific intent needed for Belfon, R v [1976] (Sec 18) Assault Mens rea in assault (Sec 20) recklessness Dolbey, W (A minor) and malice intention are not the same. v [1983] Assault Assault (malicious wounding) intention no Flack v Hunt (1979) risk seen D had not foreseen the risk of harm; on the contrary, he had considered the matter and decided there was no risk Assault In Assault no mens rea because of Stubbs, R v (1989) drunkenness indecent assault Mens rea of Recklessness in indecent Kimber, R v (1983) assault cases is subjective actual bodily Mens rea of ABH, occasioning refers to Roberts, R v (1971) harm causation not the assault, and is an objective test. If the (common) assault was intentional there is no need to consider Recklessness. actual bodily subjective recklessness apply in ABH and Savage; Parmenter, R harm and common assault, intention or recklessness v (1992) common assault foresee some harm not necessarily the harm caused driving offences& Mens rea of reckless driving model Lawrence, R v(1982) motoring cases direction driving offences& driving knowing load is unsafe is reckless Crossman, R v(1986) motoring cases driving offences Objective recklessness is relevant to Reid, R v (1992) & motoring cases motoring cases. Recklessness could not be restricted to a subjective test and included failing to appreciate an obvious risk. driving offences& Caldwell recklessness applicable to prove Seymour, R v(1983) motoring cases the Mens rea of a manslaughter caused by reckless driving action not aimed D willfully obstructed a police man of his Lewis v Cox [1985] at police duty if he deliberately did an act which, though not necessarily aimed at or hostile to the police, in fact prevented a police man from carrying out his duty or made it more difficult for him to do so, and if he knew and intended that his conduct would have that effect. attempt Intent is an essential ingredient of an Mohan, R v (1976) attempt and is the only mens rea of attempts. rape To be guilty of rape Mens rea required Satnam, R v; Kewal, R
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is recklessness of Cunningham type. D v (1985) must know the woman did not want to have sexual intercourse, or was reckless as to whether she wanted it or not.
Table1.2
Therefore it is clear that, to be guilty for different offences, the accused must have at least the minimum level of mens rea required for the offence. This concept was a result of evolution over centuries by the judges through their decisions and then through the statutes.
Reference:
1. UNLOCKING CRIMINAL LAW, Jacqueline Martine & Tony Storey, ISBN: 978 444 109 153, Hodder Education an Hachette UK Company, 3rd Ed., Ch 3, pp 55-66 2. R v Calhaem [1985] QB 808 1. UNLOCKING CRIMINAL LAW, Jacqueline Martine & Tony Storey, ISBN: 978 444 109 153, Hodder Education an Hachette UK Company, 3rd Ed., Ch 3, p56 3. DPP v Smith [1960] 3 All ER 161 4. (section 8) Criminal Justice Act 1967 5. R v Kimber [1983] 1 WLR 1118 6. R v Ghosh [1982] 3 WLR 110 7. R v Latimer (1886) 17 QBD 359 8. B (a Minor) v Director of Public Prosecutions (2000) 1 ALL ER 833 9. R v Belfon [1976] 1 WLR 741 10. R v Caldwell [1982] AC 341 11. R v G and R [2003] UKHL 50 12. R. v.Crossman [1986] R.T.R. 49 13. R ν Cunningham [1981] 2 All ER 863 14. Data Protection Registrar -v- Amnesty International (British Section) CO 1323/94; [1995] Crim L R 633 15. W (a Minor) v Dolbey [1983] Crim L. R.681 16. DPP v Armstrong 1999 EWHC QB 270, 2000 Crim LR 379 17. R v Farrell [1989]. CLR 376 18. Flack v Hunt (1980) Crim. L.R. 44 19. R v Forbes (2000) All ER (D) 2291 20. R v Grimshaw [1984] Crim LR 108 21. DPP v K (a minor)[1990] 1 WLR 1067 22. R v Scalley [1995] Crim LR 504 23. R v Seymour [1983] 2 AC 493 24. v Sheehan and Moore (1975) 60 Cr App R 308 25. R v Stubbs (1989) 88 Cr App R 53 26. R v Taaffe [1984] AC 539 27. R v. JAKEMAN. (1982) 76 Cr App R 223
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1.4 Critically analyse with the relevant provisions of Penal code and decided cases whether Janaka and Amal criminally liable for Sujith’s death. (Class activity)
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2.1 Describe the defense available under the Penal Code of Sri Lanka for the offences referred in the given Scenario (2a)
Scenario (2a)
Hassan on a train when he saw what he thought was a man assaulting a youth. In fact it was a man trying to arrest the youth of mugging a young lady. Hussain got off the train at Gampola station and asked what was happening. The man said he was a police officer arresting the youth, but when Hussain asked him to show his police ID card he could not do so. There was then a struggle between Hussain and the man in which the man was seriously injured.
Introduction
The defences which are available to offences depend on the wording of the statute and rules of the common law. There are two types of defences.
General Defence Mitigatory Defence Insanity (Section 77) Duress (except murder, attempted murder and some forms of treason) (Section 87) self defence (Section 89-99) Necessity (except murder, attempted
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murder and some forms of treason) (Section 74) mistake mistake automatism infanticide Intoxication (involuntary) (Section 78) Intoxication Marital coercion (except treason and murder) Diminished responsibility
Infancy (Section 75 & 76) Loss of control Consent (Section 80-85) Private defence (section 89-99)
Table 2.1
Discussion
Section 89 of the Penal code explains;
“Nothing is an offence which is done in the exercise of the right of private defence.”
Again in the section 90 shows extent of the defence which some person can plea under it.
“Every person has a right ……., to defend; …. His own body and the body of any other person, against any offence affecting the human body;”
According to this it is very clear the idea of the defence available in broad sense not only ones own body but also to the human body.
Section 92 states the limitation of the defence, instances which no right of private defence available against certain acts. There the law has covered and protect public servants by disallowing the private defence against their acts. But in Explanation 1 and 2 say that;
“A person is not deprived of the right of private defence against an act done, or attempted to be done by,
a public servant, as such, unless he knows, or has reason to believe, that the person doing the act is such public servant.
Or
the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction ; or
unless such person states the authority under which he acts, or.
if he has authority in writing, unless he produces such authority, if demanded.”
Therefore it is clear that if the public servant unable to prove his authority still private defence is available for the defendant.
In Gladstone (1984)1 D was not guilty of assault to a police officer. There D saw a man assaulting a youth. The youth was calling for help. In the fact man was a police officer who
22 | P a g e CRIMINAL LAW was arresting the youth lawfully at that time. But D intervened to the struggle, honestly believing that he was preventing an unlawful assault. According to the fact the court decided that his belief was not unreasonable. Therefore he cannot uphold for assaulting the police officer though the officer was acting in good faith under color of his office.
Hassan’s case can be identified misjudging circumstance mistakenly as to self-defence on the facts. Hassan honestly believes that he is helping the youth. Again he could not verify the authority of the officer, may be because of he was not on duty. But Hassan asked his police ID card but he was failed to do so. Therefore his plea under private defence would no be restricted under the section 92 of the penal code. Hassan did not have a reasonable ground to believe that he was a police officer.
Lord Lane CJ said in the Gladstone case that
“the jury should be directed first of all that the prosecution have the burden or duty of proving the unlawfulness of the defendant's actions; secondly, if the defendant may have been labouring under a mistake as to the facts, he must be judged according to his mistaken view of the facts; thirdly, that is so whether the mistake was, on an objective view, a reasonable mistake or not.”
In Beckford (1988)2 D, police officer shot dead a suspect. The suspect had told that he was armed and dangerous. D shot him because he feared for his own life. But later found he was unarmed at that time. The prosecution case was that the victim had been unarmed and thus presented no threat to the defendant. The trial judge directed the jury that the defendant's belief in the need to shoot in self-defence had to be both honest and reasonable. Therefore he upheld the conviction. But the Privy Council rejected this direction and approved the approach in Williams.
Lord Griffiths commented that juries should be given the following guidance:
"Whether the plea is self-defence or defence of another, if the defendant may have been labouring under a mistake as to facts, he must be judged according to his mistaken belief of the facts: that is so whether the mistake was, on an objective view, a reasonable mistake or not." Here three elements had been outlined clearly.
1. He honestly believed the facts he was aware were true. 2. He reacted on his belief. 3. His reaction was reasonable.
The police officer therefore, had a defence of self-defence because the killing was not unlawful if, in the circumstances as he perceived them to be, he had used reasonable force to defend himself. Hassan was not guilty of assault the man.
Accordingly to accept the defence on the ground private defence those facts should make clear. In Hassan’s case those elements are very clear;
1. Hassan attacked under a mistake as to facts, 2. he judged according to his mistaken belief of the facts; and 3. it was a reasonable mistake on an objective view.
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Conclusion
Hassan is liable to plea under on the footing private defence under sections 89 and 90 of the penal code.
He will not comes under restrictions of section 92 because had no reason to believe that he was a police officer.
According to the judgments at R v Williams (Gladstone) (1984) and R v Beckford (1988) it is further clear that he is not guilty for attacking the police officer.
Reference
1. R v Williams (Gladstone) (1984) 78 Cr App R 276 2. R v Beckford (1988) 1 AC 130
2.2 Critically assess whether defence of duress is available to Kannan for the offence referred in the given scenario 2(b) under the Sri Lankan and English law. (Class Activity)
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2.3 With reference to relevant section and illustrations of Penal critically discuss the defense of Private defense and necessity
Scenario (2a)
Kannan was 19 years old boy whose parents were separated. His mother is working as a house maid in Kandiah’s house. Kandiah is a reputed lawyer. Kannan’s father thought that his separated wife had a special and intimate relationship with Kandiah. Kannan was threatened with violence by his father unless he agreed to stab his mother. Kannan attacked his mother but did not kill her. He was charged for an attempted murder.
Introduction
An accused person is presumed innocent until proven guilty. In the prosecution the prosecutor may have to disapprove a defence which the defendant raises. For all common law defences except insanity the defendant only has to raise some evidence to the key point defence. 1 Private defence and necessity are two defences available for defendants under different circumstances.
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Private defence can divide into two branches according to it are extending;
a) Self-defence
b) Public defence
According to U.S. law the right of self-defense is the right for civilians acting on their own behalf to engage in violence for the sake of defending one's own life or the lives of others, including the use of deadly force.2 Public defence in preventing the crimes protecting others.
In U.S. criminal law, necessity may be either a possible defence or exculpation for breaking the law. Defendants seeking to rely on this defense argue that they should not be held liable for their actions as a crime because their conduct was necessary to prevent some greater harm and when that conduct is not excused under some other more specific provision of law such as self defense. 3 Discussion
Private defense
According to the section 89 of the penal code “Nothing is an offence which is done in the exercise of the right of private defence.” Again it says “Every person has a right….. to defend”4 under private defense for a threat against;
1. “His own body, and the body of any other person, against any offence affecting the human body”;
2. “The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief, or criminal trespass, or which is an attempt to commit theft, robbery, mischief, or criminal trespass.”
Therefore it is very clear that private defence available for protection from offence affecting;
1. His own body 2. Any other human body 3. His own property 4. Property of any other person
Offences which the property must be protected also stated clearly; theft, robbery, mischief, or criminal trespass, an attempt to commit theft, an attempt to commit robbery, an attempt to commit mischief, or an attempt to commit criminal trespass.
There are other circumstances where every person has the same right of private defence against, they are; 1. “offence by reason of the youth, 2. the want of maturity of understanding,
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3. the unsoundness of mind, or 4. the intoxication of the person doing that act or 5. by reason of any misconception on the part of that person.”5
As an example if Z, under the influence of madness, attempts to kill A; Z is guilty of no offence. But A has the same right of private defence which he would have if Z were sane. (Illustrations a)
A enters by night a house which he is legally entitled to enter. Z, in good faith, taking A for a housebreaker, attacks A. Here Z, by attacking A under this misconception. Here A commits no offence, but A has the same right of private defence against Z which-.he would have if Z were not acting under that misconception. (Illustrations b)
These are the circumstances which can be justified by the either angles of A or Z. Anyway this concept ensures the right of all people to protect against the attacks of the others. This is a very vital concept. Because of the security is an essential requirement for all, through out their lifetime.
Also right of this defence is subjected to the restrictions contained in section 92. It states the acts against which there is no right of private defence.
1. There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under color of his office, though that act may not be strictly justifiable by law.
2. There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law.
3. There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.
4. The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.
A person is not deprived of the right of private defence against an act done, or attempted to be done by a public servant, or other person by the direction of a public servant, as such, unless he knows, or has reason to believe, that the person doing the act is such public servant or that the person doing the act is acting by such direction or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded. (Explanation 1 & 2)
The right of private offence of the body extends to the voluntary causing of death or of any other harm to the assailant in a case of; (Section 93)
1. Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
2. Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
3. An assault with the intention of committing rape;
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4. An assault with the intention of gratifying unnatural lust;
5. An assault with the intention of kidnapping or abducting;
6. An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.
But in offences other than stated, person do not have right to voluntary causing of death but still have the right of private defence and have the right of voluntary causing any harm other than death to the assailant. (Section 94)
“The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, though the offence may not have been committed. and it continues as long as such apprehension of danger to the body continues.”(Section 95)
“The right of private defence of property start extends, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated” (Section 96)
Robbery;
House-breaking by night;
Mischief by fire, or explosives committed on any building, tent, or vessel, which building, tent, or vessel is used as a human dwelling, or as a place for the custody of property;
Theft, mischief, or house-trespass under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence if such right of private defence is not exercised.
In offences against property or the attempting to commit which other than stated, person do not have right to voluntary causing of death but still have the right of private defence and have the right of voluntary causing any harm other than death to the assailant. They are; theft, mischief, or criminal trespass (Section 97)
Commencement and continuance of the right of private defence of property up to such extend where that person clear his mind and feel secure in above offences against property. 98
1. The right of private defence of property commences when a reasonable apprehension of danger to the property commences.
2. The right of private defence of property against theft continues till the offender has effected his retreat with the property or the assistance of the public authorities is obtained, or the property has been recovered.
3. The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful
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restraint; or as long as the fear of instant death or of instant hurt or of instant personal restraint continues.
4. The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief.
5. The right of private defence of property against house-breaking by night continues as long as the house-trespass which has been begun by such house-breaking continues.
If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender is so situated that he cannot effectually exercise that right without risk of harm to an innocent person; his right of private defence extends to the running of that risk. 99
“A is attacked by a mob who attempt to murder him. He cannot effectually exercise his right of private defence without firing on the mob, and he cannot fire without risk of harming young children who are mingled with the mob. A commits no offence'. it by so tiring he harms any of the children.” (Illustration)
In Chandradasa, e. V. The queen (NLR - 439 of 55) “D charge of murder. But Plea of self defence. The mere fact that the accused himself, or his counsel, has contended for a complete acquittal on the ground of self-defence does not excuse the jury from considering, or the trial Judge from directing them upon, the question as to whether the true facts would not necessitate a verdict of culpable homicide not amounting to murder.”
THE KING v MUTTU (NLR - 516 of 47) was a Sri lankan case on private defence. D was “on a charge of murder, when there is sufficient evidence of the exercise of the right of private defence, it is a grave misdirection if the summing up misleads the jury into thinking that the accused had exceeded the right of private defence.”
MEDIWAKE v DE SILVA (NLR - 190 of 42) “In a charge of criminal trespass failure to specify the offence which was intended to be committed is a material omission which cannot be cured under section 425 of the Criminal Procedure Code unless such offence was obvious from the evidence. An act, which is justified as being within the limits of the right of private defence, cannot give rise to a right of private defence in turn. Mendis v. Silva (I C. W. R. 124) followed.”
In the case QUEEN v PODI BABA (NLR - 23 of 1) There was a “defective warrant of arrest-Competency of a police headman as public servant to arrest a person charged with robbery, independently of a warrant- Causing hurt to such servant-Plea of private defence. Causing hurt to a police headman, while in good faith and under colour of his office he was executing a defective warrant of arrest upon a person charged with robbery, is an offence under section 323 of the Penal Code. And in the absence of any act on the headman's part to cause reasonable apprehension of death or grievous hurt, the right of private defence cannot be availed of against an arrest made by such public servant, who believed bonafide that he had the power to make the arrest”
THE QUEEN v M. RAYMAN FERNANDO (NLR - 1 of 66) “Evidence-Statement made by accused to police officer-Evidence of omission to mention therein facts subsequently narrated by the accused from the witness-box- Admissibility-Evidence Ordinance, ss. 8 (2), 9, 155,-Criminal Procedure Code, s. 123. Although, under section 155 of the Evidence Ordinance, the credit of a witness may be impeached by proof of a former statement inconsistent with any part of his evidence which is liable to be contradicted, omission to
29 | P a g e CRIMINAL LAW mention in the former statement a relevant fact narrated by him in evidence subsequently does not fall within the ambit of the expression '' former statement ''. In a trial for murder the accused, when he gave evidence, stated that he had acted in self-defence. In cross- examination he was asked whether, in his statement to the police, he had mentioned about self-defence, and his answer was that he had done so. At the close of the case for the defence, the prosecution was permitted by the Court to call the police officer in question to give evidence in rebuttal. In answer to questions put by Crown Counsel, the police officer denied that the accused, in the statement made by him, had made any reference to having acted in self-defence. The court held that the evidence of the failure of the accused to narrate to the police officer the facts which he narrated from the witness-box was not admissible under section 155 of the Evidence Ordinance. Nor was it admissible under section 8 (2) or under section 9 of the Evidence Ordinance.”
SINNALEBBE ET AL V. THE POLICE (NLR - 405 of 47) “D applied private defence. He was wrongful arrested by public servant. Arrest wholly illegal-Arrested person’s right of private defence under Code, 8. 92 (1) Section 92 (1) of the Penal Code does not deprive a person of the right of private defence against on act done by a public servant if the act of the public servant is wholly illegal. Goonesekere v. Appuhamy (1935) 37 N. L. R. 11 and The King v. Simon Appu (1926) 38 N. L. R. 240 followed.”
In SOYSA, L.H. V. THE QUEEN (NLR - 252 of 55) “D was charged of murder. He plead of self-defence. He had exceeded right of private defence. Jury's rider recommending mercy- Effect on reasonableness of verdict. Appellant, who was convicted of murder, gave evidence at the trial stating that he had killed the deceased in self-defence. As regards the second exception to section 294 of the Penal Code, the presiding Judge directed the jury that if the accused exceeded the right of private defence he was guilty of culpable homicide not amounting to murder. It was contended for the appellant that the jury should also have been directed to consider whether the appellant had acted without any intention of doing more harm than was necessary for the purpose of such defence, and that the omission of such a direction made the direction that was given misdirection. Court held, that there was no misdirection. On the contrary the direction was unduly favourable to the appellant.”
Necessity
Common-law and statutory definitions of the necessity defense include the following elements: 1
1. defendant acted to avoid a significant risk of harm; 2. no adequate lawful means could have been used to escape the harm; 3. harm avoided was greater than that caused by breaking the law; and 4. harm must have been imminent and that the action taken must have been reasonably expected to avoid the imminent danger.
These elements contrast the principles of the defense of necessity: 6
blind adherence to the law will not achieve highest social value, what society expect; people who violate law under necessity acting to promote or achieve a higher social value, therefore it is unjust to punish them; and even if doing so necessitates a technical breach of the law, it is the society's best interest to promote the greatest good and to encourage people to seek to achieve the greatest good.
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Section 74 of the penal code define the defence necessity as “act likely to cause harm but done without a and to prevent other harm Nothing is an offence merely by reason of its being done with the knowledge criminal intent, that it is likely to cause harm if it be done without any criminal intention to cause harm and in good faith for the purpose of preventing or avoiding other harm to person or property.”
In the explanation it says that, “It is a question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm.” Here it justify or excuse the risk of doing the act with the knowledge that it was likely cause harm.
Illustration (a) of the section makes it clearer.
“A, the captain of a steam vessel, suddenly and without any fault or negligence on his part, finds himself in such a position that, before he can slop his vessel, he must inevitably run down a boat, B. with twenty or thirty passengers on board, unless he changes the course of his vessel, and that, by changing his course, he must incur risk of running down a boat. C, with only two passengers on board, which he may possibly clear. Here, if A alters his course without any intention to run down the boat C, and in good faith for the purpose of avoiding the danger to the passengers in the boat B. he is not guilty of an offence, though he may run down the boat C by doing an act which he knew was likely to cause that effect, if it be found as a matter of fact that the danger which he intended to avoid was such as to excuse him in incurring the risk of running down the boat C.”
In here had a chance the cargo and enhancing the danger of loss of the ship on the one hand and of discarding the cargo as a means of saving the ship on the other. Therefore the captain has chosen the reasonable choice.
Illustration (b) state an incident where necessity can plea for destruction of properties. “A in a great fire pulls down houses in order to prevent the conflagration from spreading. He does this with the intention, in good faith, of saving human life or property. Here, if it be found that the harm to be prevented was of such a nature and so imminent as to excuse A's act, A is not guilty of an offence.”
The Criminal Law Commissioners, who were attempting to define English, considered the matter of necessity several times; 7
a) Fourth report, Digest of Law (Art.39) 1839, included necessity as a defence to homicide; b) Seventh report (Art.29) 1843, also included the defence necessity;
Requisite elements of the defence necessity8 can be pointed out;
1. The exigency of the situation is making a choice between two alternative courses of action, one is entirely lawful and other prima facie unlawful but prevent serious harm to a person or property. This second action entitles infraction of the criminal law by accused. The legal issue is whether the accused has chosen lesser of the two evils as a reasonable man. Validity of defence depend on relative gravity of the risk attend in the circumstance and positive response tantamount of breach of the criminal law. 2. Accused may invoke the defence legitimacy only in circumstances where he can be said to have had no choice other than committing the offence. 3. Whether the accused’ act is consist with the object of preservation of the greater value in circumstances which inevitably involve a conflict of values. “The fact that responsibility is impossible to the accused in regard to the pre existing situation is a
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ground on which he defences of necessity may be disallowed.” 9 The most important thing is there should not be fault or negligence on accused part.
The accused entitle for the benefit of the defence will be allowed on the basis objective standards of the situation. This evaluation may base on; 10
a) Qualitative criteria b) Quantitative criteria
As an example; a driver who swerves the vehicle to avoid a cattle which unexpectedly cross the road, as doing so, kill a pedestrian. He would be protected by the necessity. Because of human life is worthier than an animal life.
It is an obvious feature to balance the value of the two situations.
Other example a person who borrows a car without the permission of the owner for the purpose of taking a patient to the hospital in an emergency situation may grant the defence.
Again a fire extinguisher who break a property for the purpose of saving a human life also liable for the defence necessity.
If the both alternatives have equal value the next consideration should be the amount. As an example in the illustration (a) the captain kills smaller number of people to save lives of large number of people in the ship. Therefore that situation is fair enough to allow the defence necessity though all human lives have equal value.
Granwill Williams stated that; “We need a general rule, and one allowing necessity as a defence to homicide where the majority are killed to preserve the majority is, on the whole, more satisfactory than the opposite.”11
There is argument about application of necessity English law. Anyway in 1878-1879, declined to codify the defence necessity in UK as it was "better to leave such questions to be dealt with when, if ever, they arise in practice by applying the principles of law to the circumstance of the particular case." R v Dudley and Stephens [1884]12 is one of the leading English criminal case that established a precedent, that necessity is no defense against a charge of murder. Dudley, Stephens, Brooks, and Parker, the cabin boy who was 17 years old and an inexperienced seaman, were crew members on a yacht. They were cast adrift 1600 miles from land in an open lifeboat. After 12 days, they were out of foods. Dudley and Stephens suggested to Brooks that one person might have to be sacrificed to save the others. But Brooks dissented. Without consulting him, Dudley and Stephens killed Parker on the 20th day. They were rescued 4 days after the murder; they would have all died if they had not fed off of Parker's remains. Homicide may not be excused when the person killed is an innocent and unoffending victim. It concerned survival cannibalism following a shipwreck and its purported justification on the basis of a Custom of the Sea.
Here Murnaghan J, said that “murder is a crime so heinous that [it] should not be committed even for the price of life and in such a case the strongest duress would not be any justification” The question is they survived three lives by killing one boy, they would have all died if they had not fed off of Parker's remains, isn’t it fair enough to grant the defence. According to my point view that was a situation where the defence should be available as a plea. But if the same incident happened today the result might change than this.
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Re A (Children) [2001]13 was an English Court of Appeal decision on the surgical separation of conjoined twins. It was subjected to a greater consideration because it raised few legal, ethical and religious dilemmas. Questions raised were;
whether it would be permissible to kill one of the children to save the other? and
whether it was permissible to act against the wishes of the twins' parents?
"Jodie" and "Mary” were conjoined twins, who were joined at the pelvis and were born on 8 August 2000. The medical evidence showed that Jodie was the stronger sibling and he was sustaining the life of Mary. If surgically separated Jodie could live but Mary would die. If they not been separated and there would have been a chance that they could have died before they were one year old.
The Court of Appeal judges who presided over the case gave very different legal reasoning. Lord Justice Alan Ward suggesting that;
"If Jodie could speak she would surely protest, Stop it, Mary, you're killing me."
Lord Justice Brown relied upon R v Dudley and Stephens and invoked necessity as a defence. Lord Justice and Robert Walker focused upon the intention of the surgeons in concluding that surgeons can carry out the surgery. The operation to separate the twins took place on the 7th November 2000. As expected Jodie survived the operation and Mary died. Conclusion
The latest developments on necessity as a defence to murder, has remarkably stated by the authors of the Smith & Hogan textbook of criminal law in his book. They think that following the destruction of the World Trade Center in New York “it now appears to be recognized that it would be lawful to shoot down the plane, killing all the innocent passengers and crew if this were the only way to prevent a much greater impending disaster”, and this on the basis of necessity as a defence. If American army shoot down the plane and kill all innocent passengers before they struck to the building is it comes under the necessity? Same situation frequently occur in battle fields today. Hundreds and thousands of innocent civilians die due to military missions. The only defences available for the relevant governments are the necessity. They justify all of their attacks by bringing forward the defence necessity. Is it fair or not? It isn’t a question of law but a question of facts. Reference
1. UNLOCKING CRIMINAL LAW, Jacqueline Martine & Tony Storey, ISBN: 978 444 109 153, Hodder Education an Hachette UK Company, 3rd Ed., Ch 1, p 19 2. http://en.wikipedia.org/wiki/Right_of_self-defense on 3. http://en.wikipedia.org/wiki/Necessity on 4. Section 91 Penal code 5. ibid 6. http://legal-dictionary.thefreedictionary.com/Necessity+defense on 7. http://en.wikipedia.org/wiki/R_v_Dudley_and_Stephens on 8. GENERAL PRINCIPLES OF CRIMINAL LIABILITY IN SRI LANKA A Comparative Analysis, G.L. PERIS, ISBN 955-8156-18-3, Stamford Lake (Pvt.) Ltd., ch 6 po 237 9. ibid ch 6 p 239 10. ibid ch 6 p 240 11. Glanville Williams, Criminal Law: The General Part, ISBN, 0420382909 ,Stevens & Sons, 1953, 2nd edition, Ch 2 p54 12. R v Dudley and Stephens [1884] 14 QBD 273 DC
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13. Re A (Children) (Conjoined Twins: Surgical Separation) [2001 ] Fam 147
3.1 In the context of the above statement (task 3) critically examine the position of law relating to offences where secondary party (to an offence) could be found guilty even though the principal offender is acquitted. (Class Activity)
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3.2 Identify the role of principal offender and secondary offender under the criminal law.
Introduction
When there is more than one participant in a crime, the various offenders play different roles. The principal offender is one who most directly and immediately linked with the actus reus of the crime. Others who aid, abet, procure or council to the principal are called as secondary parties.
E.g. A shoots B with a gun. C hands the weapon to the perpetrator. D shouts encouragement to the attacker. A is the principal. C and D are secondary parties.
If secondary participants do not create a multiplicity of offences, there remains only one crime. The relevant statutory provision in UK is;
Accessories and Abettors Act 1861 (amended by Schedule 12 Criminal Law Act 1977) It says;
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“whosoever shall aid, abet, counsel or procure the commission of any indictable offence whether the same be an offence at common law or by virtue of any act passed or to be passed shall be liable to be tried, indicted and punished as a principal offender”1 There we can identify the ways which someone can participate for an offence; 1) aid, 2) abet, 3) counsel or 4) procure.
Discussion
In Sri Lanka penal Code;
“A person abets the doing of a thing who –
Firstly - Instigates any person to do that thing; or
Secondly- Engages in any conspiracy for the doing of that thing; or
Thirdly- Intentionally aids, by any act or illegal omission, the doing of that thing” defines as Abetment of the doing of a thing.2
It explains; “A person who by willful misrepresentation or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.” (Explanation 1)
It further explains;
“A conspiracy for the doing of a thing is when two or more persons agree to do that thing or cause or procure that thing to be done, A person within the jurisdiction of the court abets an offence by engaging with one or more Other persons beyond the Jurisdiction of the court in a conspiracy for the commission of an offence by them, or either of them, or by any other person.” (Explanation 2)
And at last it explains;
“Whoever, either prior to or at the time of the commission of an act does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.” (Explanation 3)
It further define abettor as;
“A person abets an offence who abets either the commission of an offence or the commission of an act which would be an offence if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor.”3
There it explains the form of a abettor using 3 explanations;
Explanation 1
“The abetment of the illegal omission of an act may amount lo an offence although the abettor may not himself be bound to do that act.”
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Explanation 2
“To constitute the offence of abetment, it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused.”
Explanation 3
“It is not necessary that the person abetted should be capable by law of committing an offence, or hat he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge.”
Explanation 3
“The abetment of an offence being an offence, the abetment of such an abetment is also an offence.”
Explanation 3
“It is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the person who commits it. It is sufficient if he engage in the conspiracy in pursuance of which the offence is committed.”
Section 102 state the punishment for abetting. “ Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence”
Section 103 “Whoever abets the commission of an offence shall, if the person abetted does the act with a different intention or knowledge from that of the abettor, be punished with the punishment provided for the offence which would have been committed if the act had been done with the intention or knowledge of the abettor and with no other.” it is not necessary to have the same mens rea in both the principal and the abettor until both aggregate together for some kind of criminal act. Here the accessory can have a different intention than the principal, but still accessory liable for the offence because he has knowledge or intention about some kind of criminal act.
Section 104 “When an act is abetted and a different act is done, the abettor is liable for when the act done, in the same manner and to the same extent as if he had directly abetted it;” here it is clear that the secondary party cannot escape his liability easily until the principal commit the criminal action.
Liability as a secondary participant is a common law concept. It applicable to all offences whether indictable or. There is an equivalent to definition in Accessories and Abettors Act 1861 regards summary offences in Magistrates Courts Act 1980 which provides that;
“a person who aids, abets, counsels or procures the commission by another person of a summary offence shall be guilty of the like offence and may be tried (whether or not he is charged as a principal) either by a court having jurisdiction to try that other person or by a court having by virtue of his own offence jurisdiction to try him”.4
Some statutes make explicit that being an accessory to an offence is an offence. If a case where the principal offender is guilty for a crime the secondary party can be liable for aid, abet, council or procure for that crime. But mens rea of the secondary party should be proved. To prove the mens rea of secondary liability the defendant must have had
37 | P a g e CRIMINAL LAW knowledge of the type of crime to be committed and had the intention to aid, abet, counsel or procure.
There are circumstances where a secondary party could be found guilty even though the principal offender is acquitted.
1. if the principal lacks mens rea 2. if the principal has a defence
If the principal of the actus reus of a crime do not have mens rea or not guilty because of a defence such as infancy or insanity, become an innocent agent of the crime. Then the the person most closely connected with the agent is the principal. [Bourne (1952) & Coagan and leak (1976)]
Conclusion
Secondary party also liable for the same punishment which principal party liable is. If the principal offender escape his liability because of a defence or lack of mens rea the secondary party still can liable for the offence.
Reference
1. (Section 8) Accessories and Abettors Act 1861 2. S 100 penal Code 3. S 101 penal Code 4. section 44(1) Magistrates Courts Act 1980
3.3 The legal effect and punishment for attempted crimes are different fro committed crimes. Discuss. (Class Activity)
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3.4 Critically evaluate the legal principles articulated in the cases of R v Bourne (1952)App R 1251 and R v Coagan and Leak(1976) QB 217, in the context of participation in crimes. (Class Activity)
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3.5 The offence under the Criminal law, generally classified into offence committed against person and offence committed against property. Critically evaluate this statement with relevant statutory provisions and decided cases.
Introduction
A crime which is committed by direct physical harm or force being applied to another person usually refers as the offence against the person.
These offences are usually analysed by division into the following categories: 1 Statutory provisions are given under UK law.
1. Fatal offences;
a) Murder b) Manslaughter c) Corporate manslaughter (contrary to section 1 of the Corporate Manslaughter and Corporate Homicide Act 2007 in UK) d) Infanticide(contrary to section 1(1) of the Infanticide Act 1938)
2. Sexual offences;
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a) Rape b) Sexual abuse
3. Non-fatal non-sexual offences;2
a) Assault or common assault b) Battery or common battery c) Wounding or wounding with intent(contrary to section 18 / section 20 of the Offences against the Person Act 1861) d) Poisoning(contrary to section 24 of the Offences against the Person Act 1861) e) Assault occasioning actual bodily harm and derivative offences f) Inflicting grievous bodily harm or causing grievous bodily harm with intent and derivative offences
Crimes against property only involve the taking of money or property and do not involve force or threat of force against a person. 3 E.g.; burglary, larceny, theft, motor vehicle theft, arson, shoplifting, and vandalism
Although robbery involves taking property it is not come under Crimes against property.4 It is classified as a violent crime against person. Because it involve force or threat of force on an individual that is present is involved in contrast to burglary which is typically of an unoccupied dwelling or other unoccupied building.
In Hale (1978)5 D was used force to stop a woman raising the alarm while her jewellery box was being stolen. A substantial part of the force took place when the box was in the thieves’ possession. Therefore, violence may come after the act of theft. D was guilty for robbery.
Visiting Forces Act 1952 in UK define offence against person as any of the following offences;
1. murder, manslaughter, rape, torture, buggery, robbery and assault and any offence of aiding, abetting, counselling or procuring suicide or an attempt to commit suicide; and 2. any offence not falling within the foregoing sub-paragraph, being an offence punishable under any of the following enactments:
a) the Offences against the Person Act, 1861, except section fifty-seven thereof (which relates to bigamy);
b) the Criminal Law Amendment Act 1885;
c) the Punishment of Incest Act, 1908;
d) section eighty-nine of the Mental Health Act (Northern Ireland), 1948 (which relate respectively to certain offences against mentally defective females);
e) sections one to five and section eleven of the Children and Young Persons Act, 1933, and sections eleven, twelve, fourteen, fifteen, sixteen and twenty-one of the Children and Young Persons Act (Northern Ireland), 1950; and
f) the Infanticide Act, 1938 and the Infanticide Act (Northern Ireland), 1939. And
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g) article 3(1)(a) of the Protection of Children (Northern Ireland) Order 1978
h) sections two to twenty-eight of the Sexual Offences Act 1956
i) section 1(1)(a) of the Protection of Children Act 1978
j) the Child Abduction Act 1984.
k) section 1 of the Prohibition of Female Circumcision Act 1985
l) the Child Abduction (Northern Ireland) Order 1985
This Act further stated that an offence under section 2 of the Nuclear Material (Offences) Act 1983, also consider as the offences against person in certain circumstances.
Again it say an offence of making such a threat as is mentioned in section 3 of the United Nations Personnel Act 1997 and any of the following offences against a UN worker within the meaning of that Act; 1. an offence of kidnapping; 2. an offence of false imprisonment; 3. an offence under section 2 of the Explosive Substances Act 1883 of causing an explosion likely to endanger life.
Discussion
Penal code of Sri Lanka has distinguished clearly the offences against property and offences against person. (see Table 1.2)
Offence against the person Penal Code Offence against property Penal Code provision provision
(25) culpable homicide 293 (1) Theft 366
(26) Murder 294 (2) Extortion 372 (27) Abetment of suicide (3) Robbery 299 379 (28) Attempt to murder (4) Attempt to commit 300 robbery 381 (29) Attempt to commit culpable homicide 301 (5) Dishonest misappropriation of 386 (30) Miscarriage property 303 (31) Exposure and (6) Criminal breach of abandonment of a 308 trust 388
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child under twelve years by parent or (7) Cheating Person having care of 398 (8) Cheating by it personation 399 (32) Cruelty to children 308A (9) Mischief (33) Concealment of birth 309 (10) Criminal trespass 408 by secret disposal of dead body (11) House- breaking 427 (34) Cause hurt/ Grievous hurt 310 & 311 431
(35) Wrongful restraint 330 (36) Wrongful confinement 331 (37) Criminal force 340 & 341 (38) Assault 342 (39) Sexual harassment 345 (40) Kidnapping 350 (41) Abduction
(42) Debt bondage, 353 serfdom, forced or compulsory labour, 358A slavery and recruitment of children for use in armed conflict
(43) Sexual exploitation of children 360B
(44) Trafficking 360C (45) Offences related to adoption 360D (46) Soliciting a child
(47) Rape 360E
(48) Incest 363 (49) Unnatural offence 364A
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(50) Acts of gross 365 indecency between persons 365A
(51) Grave sexual abuse 365B
Table 3.1
Penal code of Sri Lank recognizes offences against person as ‘OFFENCES AFFECTING THE HUMAN BODY’ They are further categorize under 8 subtopics;
1. OF OFFENCES AFFECTING LIFE (s293-s309)
2. OF THE CAUSING OF MISCARRIAGE, OR INJURIES TO UNBORN CHILDREN. OF THE EXPOSURE OF INFANTS, AND OF THE CONCEALMENT OF BIRTHS(s293-s309)
3. OF HURT(s310-s329)
4. OF WRONGFUL RESTRAINT AND WRONGFUL CONFINEMEN(s330-s339)
5. OF CRIMINAL FORCE AND ASSAULT(s340-s349)
6. OF KIDNAPPING, ABDUCTION, SLAVERY, ETC(s350-s362)
7. OF RAPE AND INCEST(s363-s364)
8. OF UNNATURAL OFFENCES AND GRAVE SEXUAL ABUSE(s365-s365B)
Culpable homicide is causing death “by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.”
But culpable homicide amount to a murder if it present either one of these limbs; “if the act by which the death is caused is done with the intention of causing death; or
1. If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused ; or 2. If it is done with the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or 3. If the person committing the act knows that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.”
Abetment of suicide is an offence under our penal code. According to that any person who abets the commission of a suicide shall be punished with death.
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Not only murder and culpable homicide but also Attempt to murder and Attempt to commit culpable homicide consider as a crime under Sri Lankan law. “Whoever does any act with such intention or knowledge and under such circumstances that if he by that act caused death he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable to imprisonment of either description for a term which may extend to twenty years, and shall also be liable to fine.” Or “culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years or with fine,-or with both; and if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.”
If miscarriage be not caused in good faith for the purpose of saving the life of the woman, it is a crime. Therefore the accused must be “punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
In REX v. FERNANDO6 A person may be convicted of the abetment of an offence under section 303 of the Penal Code, causing a woman to miscarry, even where there is no evidence that woman was pregnant, provided that the accused believed she was in that condition.
Causes Hurt defines as an act causes bodily pain, disease, or infirmity to any person. If the act causes serious consequences to the body it is Grievous hurt.
Wrongfully to restrain refers “voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed that person.”
Wrongfully to confine is wrongfully restrains any person in such a manner as to prevent that person from proceding beyond certain circumscribing limits that person.
Force is using force “to another if he causes motion, change of motion, or cessation of motion to that other, or if he causes to any substance such motion or change of motion or cessation of motion as brings that substance into contact with any part of that other's body, or with anything which that other is wearing or carrying, or with anything so situated that such contact affects that other's sense of feeling. Provided that the person causing the motion or change of motion or cessation of motion causes that motion, change of motion, or cessation of motion in one of the three ways hereinafter described;
1) By his own bodily power. 2) By disposing any substance in such a manner that the motion or change or cessation of motion takes place without any further act on his part or on the part of any other person. 3) By inducing any animal to move, to change its motion, or to cease to move.”
“Whoever intentionally uses force to any person, without that person's consent, in order to the committing of any offence, or intending illegally by the use of such force to cause, or knowing it to be likely that by the use of such force he will illegally cause injury, fear, or annoyance to the person to whom the force is used, is said to use criminal force to that other.”
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An assault is “makes any gesture or any preparation, intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person.”
“Whoever, by assault or use of criminal force, sexually harasses another person, or by the use of words or actions, causes sexual annoyance or harassment to such other person commits the offence of sexual harassment and shall on conviction be punished with imprisonment of either description for a term which may extend to five years or with fine or with both and may also be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for the injuries caused to such person.
1) Unwelcome sexual advances by words or action used by a person in authority, to a working place or any other place, shall constitute the offence of sexual harassment. 2) For the purposes of this section an assault may include any act that does not amount to rape under section 363 or grave sexual abuse under section 365B. 3) Injuries includes psychological or mental trauma.”
“Kidnapping is of two kinds-
Kidnapping from Sri Lanka - Whoever conveys any person beyond the limits of Sri Lanka without the consent of that person or of some person legally authorized to consent on behalf of that person.
Kidnapping from lawful guardianship - Whoever takes or entices any minor under fourteen years of age if a male, or under sixteen years of age it a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian.”
Abduct is said to induces any person to go from any place by force compels, or by any deceitful means, or by abuse of authority or any other means of compulsion.
PREMADASA V. STATE 7 “The date of the incident as deposed to by the Prosecutix was 22.8.1998. It was her position that she was a virgin until 22.8.1998. She had only complained to the Police 2 days later - 24.8.1998. The Medical Expert had observed the tear of the hymen, but stated that the tear had taken place 8 days or more prior to her examining the prosecutrix which was on 24.8.1998. Court held:
(1) According to the Medical Expert the probable date would be 16.8.88 or a date prior to that date. Neither the State Counsel nor the trial Judge had invited her to elucidate her opinion any further or elaborate the grounds upon which the opinion was based.
(2) The crucial issue was whether the prosecutrix had been in fact ravished on 22.8.1998 by the accused appellant. The trial Judge has refrained from making any assertion in respect of this matter. (3) This non direction on a vital question of fact tantamounts to a grave error of law which is sufficient to vitiate the conviction.”
Trafficking means; a) “buys, sells or barters or instigates another person to buy, sell or barter any person or does anything to promote, facilitate or induce the buying, selling or bartering of any person for money or other consideration; b) recruits, transports, transfers, harbours or receives any person or does any other act by the use of threat, force, fraud, deception or inducement or by exploiting the vulnerability of another for the purpose of securing forced or compulsory labour or
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services, slavery, servitude, the removal of organs, prostitution or other forms of sexual exploitation or any other act which constitutes an offence under any law; c) recruits, transports, transfers, harbours or receives a child or does any other act whether with or without the consent of such child for the purpose of securing forced or compulsory labour or services, slavery, servitude or the removal of organs, prostitution or other forms of sexual exploitation, or any other act which constitutes an offence under any law,
Any person who is guilty of the offence of trafficking shall on conviction be punished with imprisonment of either description for a term not less than two years and not exceeding twenty years and may also be punished with fine and where such offence is committed in respect of a child, be punished with imprisonment of either description for a term not less than three years and not exceeding twenty years and may also be punished with fine.”
Rape is “enactment has sexual intercourse with, a woman under circumstances falling under any of the following descriptions:
a. without her consent even where such woman is his wife and she is judicially separated from the man; b. with her consent, while she was in lawful or unlawful detention or when her consent has been obtained, by use of force or intimidation, or by threat of detention or by putting her in fear of death or hurt; c. with her consent when her consent has been obtained at a time when she was of unsound mind or was in a state of intoxication induced by alcohol or drugs, administered to her by the man or by some other person; d. with her consent when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is, or believed herself to be, lawfully married; e. with or without her consent when she is under sixteen years of age, unless the woman is his wife who is over twelve years of age and is not judicially separated from the man.
Again here it stated “Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape and “Evidence of resistance such as physical injuries to the body is not essential to prove that sexual intercourse took place without consent.”
R v Fotheringham (1989) 8D raped the babysitter after arriving home with his wife. D and his wife went out. They ask to sleep babysitter on their bed because they got late. His defence was that he was drunk and thought he was in bed with his wife. But he was guilty. Court held that intoxication that is self-induced is no defence to rape.
Incest is another offence related to the sexual offences;
“whoever has sexual intercourse with another, who stands towards him in any following enumerated degrees of relationship, that is to say
a. either party is directly descended from the other or is the adoptive parent, adoptive grand parent, adoptive child or adopted grand child or the other ; or b. the female, is the sister of the male, either by the full or the half blood or by adoption, or is the daughter of his brother, or of his sister, by the full or the half blood or by adoption, or is a descendant from either of them, or is the daughter of his wife by another father, or is his sons or grandsons or fathers or grandfathers widow; or c. the male, is the brother of the female either by the full or the half blood or by adoption, or is the son of her brother or sister by the full or half blood or by adoption or is a descendant from either of them, or is the son of her husband by another
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mother, or is her deceased daughters or grand daughters or mothers or grand mothers husband, commits the offence of incest
The offence of incest shall not be affected or negated by reason of the existence of any defect in the legality of any relationship given in this section, such as absence of a valid marriage or adoption.
a. commits incest, shall be punished with rigorous imprisonment for a term not less than seven years and not exceeding twenty years and with fine. b. Attempts to commit incest shall be punished with imprisonment of either description for a term which may exceed to two years.”
Unnatural offence is the third type of offence related to the sex. “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be punished with fine and where the offence is committed by a person over eighteen years of age in respect of any person under sixteen years of age shall be punished with rigorous imprisonment for a term not less than ten years and not exceeding twenty years and with fine and shell also be ordered to pay compensation of an amount- determined by court to the person in respect of whom the offence was committed for injuries caused to such person. Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”
Grave sexual abuse is the last sex related offence. It says “committed any person who, for sexual gratification, does any act, by the use of his genitals or any other part of the human body or any Instrument on any orifice or part of the body of any other person, being an act which does not amount to rape under section 363, in circumstances falling under any of the following descriptions, that is to say-
a. without the consent of the other person ; b. with or without the consent of the other person when the other person is under sixteen years of age;" c. with the consent of the other person while such other person was in lawful or unlawful detention or where that consent has been obtained, by use of force, or intimidation or threat of detention or by putting such other person in fear of death or hurt; d. with the consent of the other person where such consent has been obtained at a time the other person was of unsound mind or was in a state of intoxication induced by alcohol Of drugs. commits grave sexual abuse shall be punished with rigorous imprisonment for a term not less than five years and not exceeding twenty years and with fine and shall also be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for the injuries caused to such person;
Commits grave sexual abuse on any person under eighteen years of age, shall be punished with rigorous imprisonment for a term not less than seven years and not exceeding twenty years and with fine and shall also be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for the injuries caused to such person;”
Offences against property have listed in CHAPTER XVII Penal code of Sri Lank. They are further categorizing under 8 subtopics;
1. OF OFFENCES AGAINST PROPERTY OF THEFT(s366-s371)
2. OF EXTORTION(s372-s378)
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3. OF ROBBERY(s379-s385)
4. OF CRIMINAL MISAPPROPRIATION OF PROPERTY(s386-s309)
5. OF CRIMINAL BREACH OF TRUST(s293-s387)
6. OF THE RECEIVING OF STOLEN PROPERTY(s388-s392B)
7. OF CHEATING(s393-s403)
8. OF FRAUDULENT DEEDS AND DISPOSITIONS OF PROPERTY(s404-s407)
9. OF MISCHIEF AND ILLEGAL REMOVAL OF WRECKS(s408-s426)
10. OF CRIMINAL TRESPASS(s427-s451)
“Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.”
"A person is guilty of theft if he, (1) dishonestly (2) appropriates (3) property (4) belonging to another with the (5) intention of permanently depriving the other of it. thief and steal shall be construed accordingly"
In Oxford v Moss (1979)9 A university student saw a proof copy of an exam paper. He was not guilty of theft because the exam paper was information and information cannot be stolen. The issue was the student saw the paper but he did not physically remove the paper.
“Whoever intentionally puts any person in fear of any injury to that person or to any other and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security or anything signed or sealed which may be converted into a valuable security, commits extortion. "
In all robbery there is theft or extortion;
“when theft is robbery- Theft is " robbery ", if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt or of instant wrongful restraint.”
“When extortion robbery. Extortion is " robbery ", if the offender, is at the time of committing the extortion, is in the presence of the person put in fear and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.”
Whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.”
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“Whoever dishonestly misappropriates or converts to his own use any movable property shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
“Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits criminal breach of trust."
“Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation, or property, or damage or loss to the Government, is said to cheat.”
“Whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility or affects it injuriously, commits mischief. "
“Whoever enters into or upon property in the occupation of another with intent to commit an offence, or to intimidate, insult, or annoy any person in occupation of such property, or having lawfully entered into or upon such property unlawfully remains there with intent thereby to intimidate, insult, or annoy any such person, or with intent to commit an offence, is said to commit criminal trespass."
“A person is said to commit house- breaking who commits house-trespass if he effects his entrance into the house or any part of it in any of the six ways hereinafter described; or if, being in the house or any part of it for the purpose of committing an offence, or having committed an offence therein, he quits the house or any part of it in any of such six ways, that is to say-
1. he enters or quits through a passage made by himself, or by any abettor of the house-trespass, in order to the committing of the house-trespass ;
2. if he enters or quits through any passage not intended by any person, other than himself or an abettor of the offence, for human entrance; or through any passage to which he has obtained access by scaling or climbing over any wall or building ; 3. if he enters or quits through any passage which he or any abettor of the house- trespass has opened, in order to the committing of the house-trespass, by any means by which that passage was not intended by the occupier of the house to be opened ;
4. if he enters or quits by opening any lock in order to the committing of the house- trespass, or in order to the quitting of the house after a house-trespass ;
5. if he effects his entrance or departure by using criminal force or committing an assault or by threatening any person with assault
6. if he enters or quits by any passage which he knows to have been fastened against such entrance or departure and to have been unfastened by himself or by an abettor of the house-trespass.”
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Section 9 Theft Act 1968 creates two offences which come under burglary; Where a person:
(a) Enters any building or part of a building as a trespasser with intent to commit theft, grievous bodily harm or unlawful damage, or
(b) Having entered a building as a trespasser steals or attempts to steal anything in the building or inflicts or attempts to inflict grievous bodily harm upon any person therein.
But in our penal code the term burglary not itself expressed.
Conclusion
These are two major groups of offences under the penal code. Offences mainly categorized under three groups as; Offences against person Offences against property Offences against public order It shows clearly the priority is given to the protection of people, next is their property.
Judges has contributed lot for the development of concept of these offences. The law is not a static field. It has to be modified with new areas being regulated and others being deregulated, with changes in the social expectations. With the technological development new offences have raised. E.g. Computer fraud Child pornography on the internet
New discussion has come to exist; E.g. Euthanasia Use frozen sperm from dead man HIV pandemic
Therefore it is continuously need of patching, repairing and from time to time overhauling in law related to the offences against person an offences against property.
Reference
1. http://en.wikipedia.org/wiki/Offence_against_the_person on 2. ibid 3. http://en.wikipedia.org/wiki/Offence_against_propertyon on 4. ibid 5. R v Hale (1978) Cr App R 415 6. REX v. FERNANDO NLR - 181 of 27 7. PREMADASA V. STATE SLR - 385, Vol 2 of 2000 8. R v Fotheringham (1989) Crim LR 846 9. Oxford v Moss (1979) Crim LR 119
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4.1 Critically examines the jurisdiction of the criminal courts and criminal procedures in the context of criminal proceeding in Sri Lanka.
Introduction
1978 Constitution of the Democratic Socialist Republic of Sri Lanka defined the, the judiciary consists of a Supreme Court, a Court of Appeal, a High Court, and a number of magistrate's courts which are situated one for each division, as set out in the Administration
52 | P a g e CRIMINAL LAW of Justice Law. The magistrate's courts and the High Court are the courts with primary jurisdiction, in cases of criminal law. Criminal procedure of Sri Lanka is governed by the code of criminal procedure.
Discussion
1. Magistrate's courts
Magistrate's courts lay the lowest level of the judicial system and majority of the criminal cases are tried at there. Magistrate’s Courts are established under the Judicature Act, No. 2 of 1978 for each judicial division in Sri Lanka. Magistrates are appointed, dismissed and disciplinary controlled by the Judicial Service Commission.
Criminal cases at magistrate's courts may be initiated by any police officer or public servant or by any oral or written complaint to the magistrate by any of the civilian. Magistrates are empowered to make an initial investigation of the complaint. Then magistrate determines;
whether magistrate court has proper jurisdiction over the case;
whether it should be tried by the High Court; or
whether it should be dismissed.
Magistrates' courts have exclusive original jurisdiction over all criminal cases involving fines of up to Rs1, 500 or prison sentences of up to two years.
If the magistrate's court is has proper jurisdiction over the case, prosecution may be conducted by the complainant or by a government officer. The government officers can be the attorney general, the solicitor general, a state counsel, a pleader authorized by the attorney general, or any officer of any national or local government office. At the trial, the accused has the right to call and cross-examine witnesses. Trials are conducted without a jury. At the end of prosecution the verdict and sentence are given by the magistrate. If the offender unsatisfied with the judgment he has the right to appeal to the Court of Appeal on any point of law or fact.
There are 74 judicial divisions in Sri Lanka. 1
Column I Column II Column III Judicial Zone/ Name of High Judicial District/ Name of Judicial Division/ Name of Court/ PHC District Court Magistrate’s Court
Colombo Colombo
Colombo/ High Court of the Mount Lavinia Mount Lavinia Western Province sitting in Gangodawila
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Colombo Moratuwa Moratuwa
Kaduwela
Kalutara/ High Court of the Kalutara Kalutara Western Province sitting in Kalutara Matugama Matugama
Panadura/ High Court of the Panadura Panadura Western Province sitting in Panadura Horana Horana
Galle/ High Court of the Galle Galle Southern Province sitting in Galle Baddegama
Balapitiya/ High Court of the Balapitiya Balapitiya Southern Province sitting in Balapitiya Elpitiya
Matara/ High Court of the Matara Matara Southern Province sitting in Matara Morawaka
Tangalle Tangalle
Tissamaharamaya Tissamaharamaya
Hambantota/ High Court of Hambantota Hambantota the Southern Province sitting in Hambantota Walasmulla Walasmulla
Batticaloa/ High Court of the Batticaloa Batticaloa Eastern Province sitting in Batticaloa Kalmunai Kalmunai
Akkraipattu Akkraipattu
Amparai/ High Court of the Amparai Amparai Eastern Province sitting in Amparai Trincomalee Trincomalee
Mutur
Jaffna/ High Court of the Jaffna Jaffna Northern Province sitting Kayts Kayts
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inJaffna Point Pedro Point Pedro
Chavakachcheri Chavakachcheri
Killinochchi
Mallakam Mallakam
Chilaw/ High Court of the Chilaw Chilaw NorthWestern Province sitting inChilaw Marawila Marawila
Puttalam Puttalam
Negombo/ High Court of Negombo Negombo theWestern Province sitting inNegombo Minuwangoda
Wattala
Gampaha/ High Court of Gampaha Gampaha theWestern Province sitting inGampaha Attanagalla Attanagalla
Pugoda Pugoda
Kegalle/ High Court of Kegalle Kegalle theSabaragamuwa Province sitting in Kegalle Mawanella Warakapola Warakapola
Kurunegala/ High Court of the Kurunegala Kurunegala North Western Province sitting in Kurunegala Wariyapola
Kuliyapitiya Kuliyapitiya
Maho Maho
Kandy/ High Court of Kandy Kandy theCentral Province sitting inKandy Teldeniya
Gampola Gampola
Nawalapitiya
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Hatton Hatton
Matale Matale
Dambulla
Avissawella/ High Court of Avissawella Avissawella theWestern Province sitting inAvissawella Ruwanwella
Homagama Homagama
Kesbewa
Ratnapura/ High Court of Ratnapura Ratnapura theSabaragamuwa Province sitting in Ratnapura Balangoda
Embilipitiya Embilipitiya
Badulla/ High Court of Badulla Badulla the UvaProvince sitting in Badulla Bandarawela Bandarawela
Welimada Welimada
Nuwara Eliya Nuwara Eliya
Moneragala Moneragala
Anuradhapura/ High Court of Anuradhapura Anuradhapura the North Central Province sitting in Anuradhapura Kebithigollawa
Kekirawa
Thambuththegama
Polonnaruwa Polonnaruwa Vauniya Vauniya Vauniya/ High Court of the Mannar Mannar Northern Province sitting inVauniya Mullativu Mullativu
Table 4.1
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2. High Court
The High Court is the highest court of first instance in criminal law. Here the prosecution must be conducted by the attorney general, the solicitor general, a state counsel, or any pleader authorized by the attorney general. At the trial accused are present defenses and call and cross-examine witnesses. The court allow to trial by jury which consist of seven members, for serious such as crimes against the state, murder, culpable homicide, attempted murder, and rape. This is the only court present a jury for a trail in Sri Lanka. For other trials the judge gives the verdict and passes sentence. If the accused did not satisfied by it he has the right of appeal to the Court of Appeal on any matter of law or fact.
The High Court consists of not less than ten and not more than Forty Judges.2 The Judges are appointed to Provincial High Courts by the Chief Justice from among Judges of the High Court of Sri Lanka.3 Judges of the High Court are appointed by the President on the recommendation of the Commission made after consultation with the Attorney General.4 Judges of the High Court are removable by the President and are subject to disciplinary control by the President on the recommendation of the Judicial Service Commission.5 Age of retirement is 61 years. 6 Original jurisdiction of high court is:
1. all indictable prosecutions which are exercised by the Provincial High Courts in respect of offences committed within the Province. These are criminal cases involving penalties over Rs1, 500 or two years imprisonment ; 2. commercial jurisdiction;7 3. admiralty jurisdiction which is ordinarily exercised in Colombo; 4. jurisdiction vested by Article 111L(2) to hear and determine an offence under Article 111L(1) 5. applications for the return of or access to a child under the Hague Convention on the Civil Aspects of International Child Abduction . This power only exercised by the High Court of the Western Province.
Appellate jurisdictions of Provincial High Courts are:
1. appellate and revisionary jurisdiction in respect of convictions, sentences, orders entered or imposed by Magistrate’s courts and Primary courts within the Province;
2. appeals from Labour Tribunals, Agrarian tribunals and Small Claims Courts.
3. writ jurisdiction in respect of powers exercised under any law or under any statutes made by the Provincial Council of that Province, in respect of any matter set out in the provincial Council list;
Relevant statutes to the High Jurisdictions are;
Judicature Act, No. 2 of 1978;
High Court of the Provinces (Special Provisions) Act, No. 19 of 1990;
High Court of the Provinces (Special Provisions) Act, No. 10 of 1996,
Civil Aspects of International Child Abduction Act, No. 10 of 2001
Places where High Courts are situated can be listed as follows; Colombo, Kalutara,
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Galle, Kegalle, Matara, Kurunegala, Batticaloa, Kandy, Jaffna, Awissawella, Chilaw, Ratnapura, Negombo, Badulla, Gampaha, Anuradhapura.
58 | P a g e 3. Court of Appeal
Court of Appeal was constructed under Article 137 of the Constitution. It is consists of the President of the Court and not less than six and not more than eleven other Judges. President appoints President of Court of Appeal and the other Judges of the Court of Appeal. Court of Appeal is subjected to the provisions of the Constitution and of any law; 8 The number of judges present for the jurisdiction depends on the nature of appeal. nature of appeal number of judges present judgments, sentences and orders of the High by at least three Judges Court other than judgments, sentences and orders pronounced at a Trial at Bar appeals from a magistrate's court at least two judges Parliamentary election petitions by the President or by a Judge nominated by the President or by one or more Judges nominated by the President of whom the President may be one Other matters by a single Judge unless the President directs otherwise In the event of disagreement between two by three Judges who shall review the matter Judges Table 4.2
Court of Appeal has only appellate jurisdiction in matters of criminal law. It is vested with the following jurisdiction;
1. Appeals from the High Court in the exercise of its appellate or original jurisdiction; 9 Appeals from judgments, sentences and orders pronounced at a High Court Trial at Bar lie direct to the Supreme Court 10
2. Appeals from any court of first instance and any tribunal or other institution ;
3. Sole and exclusive cognizance by way of appeal, revision and restitution ;
4. Power and authority to inspect and examine records of any court of first instance;11
5. Jurisdiction to grant and issue according to law, writs of certiorari, prohibition, procedendo, mandamus and quo warranto 12 other than matters relating to the exercise of the powers of the Elections Commission;
6. Jurisdiction to grant and issue writs of habeas corpus;13 7. Jurisdiction to grant Injunctions ;14
8. Jurisdiction to try election petitions in respect of the election of Members of Parliament ;15
Jurisdiction of Court of Appeal is ordinarily exercised in Colombo but the Chief Justice may from time to time direct that sittings be held in any judicial zone or district. 16 After the decision, further can appeal to the Supreme Court, on any matter involving a substantial question of law. But the appeal requires the approval of either the Court of Appeal or the Supreme Court itself. Judges of the Court of Appeal as at 13th July 2011;
1. Hon. Justice S. Sriskandarajah (President of Court of Appeal) 2. Hon. Justice W.L.R. Silva 3. Hon. Justice W.L.R.Silva 4. Hon. Justice K.S.J.De Abrew 5. Hon. Justice Eric Basnayake 6. Hon. Justice Rohini Marasinghe 7. Hon. Justice Sarath De Abrew 8. Hon. Justice Anil Goonaratne 9. Hon. Justice A.W.A. Salam 10. Hon. Justice A.H.M.Upaly Abeyrathne 11. Hon. Justice D.S.C.Lecamwasam 12. Hon. Justice K.T.Chitrasiri 13. Hon. Justice H.N.J. Perera
4. The Supreme Court
President appoints Chief Justice and the other judges of Supreme Court. He seeks advice of the parliament in such Appointment.17 Judges hold office during good behaviour and cannot be removed except by an order of the President made after an address of Parliament, supported by a majority of the Members of Parliament, has been presented to the President for removal on the ground of proved misbehaviour or incapacity.18 A resolution which is signed by not less than one third of the total number of Members of Parliament and required to provide for all matters relating to the presentation of such an address, by law or by Standing Orders of Parliament. A Judge of the Supreme Court and Court of Appeal is not permitted to perform any other office, whether paid or not, or accept any place of profit or emolument, except as authorized by the Constitution or by written law or with the written consent of the President.19 Age of retirement of a supreme court judge is 65 years.27 The Supreme Court is the highest and final superior court of record and is empowered to exercise the following powers; subject to the provisions of the Constitution.
1. Jurisdiction in respect of Constitutional matters;21
2. Jurisdiction for the protection of fundamental rights;22
3. Final appellate jurisdiction;23
4. Consultative jurisdiction;24
5. Jurisdiction in petitions relating to election of President ; petitions relating to the validity of a referendum ; appeals from Orders/judgments of the Court of Appeal in other election petitions;25
6. Jurisdiction in respect of any breach of the privileges of Parliament;26
7. Jurisdiction in respect of other matters which Parliament may by law vest or ordain.
Appeals from judgments, sentences and orders pronounced at a High Court Trial at Bar lie direct to the Supreme Court. Those appeals shall be heard by a Bench of five or more Judges. But ordinarily its powers are exercised at all times by a Bench of at least three Judges. The Chief Justice may direct that an appeal, proceeding or matter be heard by a Bench comprising five or more Judges in a case; according to his own point of view if he think it is necessary;
at the request of two or more Judges hearing any matter;
on the request of application of a party,
if the question involved is in the opinion of the Chief Justice one of general and public importance.
The jurisdictions of the Supreme Court is ordinarily exercised in Colombo unless the Chief Justice otherwise directs and, subject to the provisions of the Constitution. The Chief Justice with any three Judges of the Supreme Court nominated by him is empowered to make Rules regulating generally the practice and procedure of the court including the matters specifically referred to in the Article.28
Present Judges of the Court are;
1. Hon. Justice Hon. Dr. Shirani A Bandaranayake 2. Hon. Justice Hon. S. Thilakawardena 3. Hon. Justice Hon. A.R.N. Gamini Amaratunga 4. Hon. Justice Hon. Saleem Marsoof, P.C 5. Hon. Justice Hon. K.Sripavan 6. Hon. Justice Hon. P.A.Ratnayake, P.C. 7. Hon. Justice Hon. Chandra Ekanayake 8. Hon. Justice Hon. S. I Imam 9. Hon. Justice Hon. R.K.S.Suresh Chandra
Criminal Procedure
Once a crime is reported it is the duty of the government to take necessary action bring that out. There are few governmental bodies such as police and attorney department involve in the process of arresting and carrying out criminal jurisdiction. In criminal cases the police gather evidence and, in court, public prosecutors present the case against the person accused of the crime. Arrest of a person is done under provisions of the penal code.
(1) “ In making an arrest the person making the same shall actually touch or confine the body of the person to be arrested unless there be a submission to the -custody by word or action and shall inform the person to be arrested of the nature of the charge or allegation upon which he is arrested.” 29
Explanation – “Keeping a person in confinement or restraint without formally arresting him or under the colourable pretension that an arrest has not been made when to all intents and purposes such person is in custody shall be deemed to be an arrest of such person;”30
(2) “If such person forcibly resists the endeavour to arrest him or attempts to evade the arrest, the person matting the arrest may use such means as are reasonably necessary to affect the arrest.”31
(3) “Anything in this section shall not give a right to cause the death of a person who is not accused of an offence punishable with death.”32 In the Magistrates Court the mostly the prosecutor is a police officer whereas in the higher courts the prosecution is conducted by the Attorney general in Sri Lanka. Accused of a felonies or serious crimes is generally charged in a formal accusation called an indictment. The prosecutor must prove their case before the court beyond a reasonable doubt. Duty of the police is investigating the evidences. The first stage is to decide whether there is a case to answer. This process is called non summary investigation, will be dealt with by a magistrate on the basis of evidence disclosed in papers provided by the prosecutor.
“When the accused appears or is brought before the Magistrate's Court, the Magistrate shall in a case –
(a) where the offence or any one of them where there is more than one, falls within the list of offences set out in the Second Schedule to the Judicature Act; or
(b) where the Attorney-General being of opinion that evidence recorded at a preliminary inquiry will be -necessary for preparing an indictment, within three months of the date of the commission of the offence so directs, hold a preliminary inquiry according to the provisions hereinafter mentioned.”33 “A Magistrate conducting a preliminary inquiry shall at the commencement of such inquiry read over to the accused the charge or charges in respect of which the inquiry is being held, but upon such reading over the accused shall not be required to make any reply thereto; if any such reply is made, it shall not be recorded by the Magistrate; nor shall any such reply be admissible in evidence against the accused.”34
If the case proceeds, it is heard in the High court in Sri Lanka. “Subject to the provisions of this Code and of any other written law the High Court shall not take cognizance of any offence unless the accused person has been indicted before it for trial by or at the instance of the Attorney-General.”34
In the High Court the trial is handling before a judge or judge and jury. The judge presides over the trial process and attempt to ensure clarity and fairness. He must consider and decide on legal issues and instruct the jury as to the correct view of the law relevant to the case. The jury decides the facts “whose story is more believable?” and applies the law. It is the jury not the judge which achieves a verdict on the guilt or innocence of the accused. In less serious criminal cases the case is sent for summary trial in one of magistrates’ courts. A summary trial means case where there is no indictment and trial is carrying before a magistrate.
“Subject to and in accordance with the provisions of this Code every Magistrate's Court shall have;
(a) power and authority and is hereby required to hear, try, determine, and dispose of in a summary way all suits or prosecutions for offences committed wholly or in part within its local jurisdiction, which offences by this Code or any other law in force are made cognizable by a Magistrate's Court or a District Court ;
(b) Jurisdiction -
I. to inquire into alt offences committed or alleged to have of been committed wholly or in part within its local jurisdiction or in relation to which jurisdiction is by this Code given to such court to inquire into, to summon and examine all witnesses touching such offences, and to issue warrants and other processes to apprehend and summon all criminals and offenders and deal with them according to law ; and
II. to issue warrants to search or to cause to be searched all places wherein any stolen goods or any goods, articles, or things with which or in respect of which any offence has been committed are alleged to be kept or concealed, and to require persons to furnish security for the peace or for their good behaviour according to law ; and
III. to inquire into all cases in which any person shall die in any prison or mental or leprosy hospital or shall come to his death by violence or accident, or when death shall have occurred suddenly, or when the body of any person shall be found dead without its being known how such person came by his death.”36
Conclusion
Criminal courts of Sri Lanka are;
1. Magistrate Court Courts of first instances 2. High Court
3. Court of Appeal Courts of Appeals 4. Supreme Court
The whole procedure, from committing an offence by some body to punish him, is controlling under Code of Criminal Code.
CRIMINAL ACT GUILTY MIND CRIMINAL OFFENCE
INVESTIGATION BY POLICE
ARREST
GATHER EVIDENCE BY POLICE
TRY AT MAGISTRATE COURT
NON SUMMARY INVESTIGATION
DECIDE WHETHER THERE IS A CASE TO TRY AT MAGISTRATE IF THE CASE ANSWER COURT PROCEEDS SUMMARY INDICTMENT INVESTIGATION
MAGISTRATE COURT HIGH COURT
NOT GUITY GUILTY GUITY NOT GUITY
APPEAL
COURT OF APPEAL
SUPREME COURT
Figure 4.1
Reference
1. http://www.justiceministry.gov.lk/courts%20of %20Law/MAGISTRATES'%20COURTS.htm on 2011 09 20 2. Article 111 and section 4 of the Judicature Act, No. 2 of 1978 (amended by Act, No. 16 -1989) 3. Article 154P 4. Article 111 5. Article 139 6. Section 6(3) of the Judicature Act, No. 2 of 1978 7. High Court of the Provinces (Special Provisions) Act, No. 10 of 1996 ; 8. Article 138 9. Article 139 10. Code of Criminal Procedure (Amendment) Act, No. 21 of 1988 11. Article 145 12. Article 140 13. Article 141 14. Article 143 15. Article 144 16. Article 146 17. 18th amendment 18. Article 107(2) 19. Article 110(2) 20. Article 118 21. Articles 120 to 125 22. Article 126 23. Article 127, 128 24. Article 129 25. Article 130 (as amended by the 14th Amendment) 26. Article 132 27. Article 107(5) 28. Article 136 29. Section 23 (1) Code of Criminal Procedure 30. Section 23 – Explanation; Code of Criminal Procedure 31. Section 23 (2) Code of Criminal Procedure 32. Section 23 (3) Code of Criminal Procedure 33. Section 145 Code of Criminal Procedure 34. Section 12 Code of Criminal Procedure 35. Section 146 Code of Criminal Procedure 36. Section 9 Code of Criminal Procedure
4.2 Identify the provisions in the Penal Code and Code of Criminal Procedure of Sri Lanka in respect of crimes referred in the scenario (task 4).
Scenario 4
Simon entered into a business contract with Hussain, according to it Hussain shall deliver a valuable set of furniture worth Rupees Five Hundred Thousand and Simon shall pay the price within the six months of the delivery. Hussain delivered the said set of furniture five days after the agreement but Simon failed to pay price within the given time and when Hussain demanded him to pay the money he threatened Hussain by saying that he will physically attack Hussain’s 19 years old unmarried sister if he does not give up his claim and terminat agreement in his (Simon) favor. Husain ignored his warning and repeatedly demanded Simon to pay his money. Simon hired a mercenary, ‘Podi Nihal,’ to grievously hurt Hussain and paid Rs 25,000 for his task. On July 4th when Hussain was leaving his house to visit his friend’s house, Podi Nihal stabbed Hussain with a sharpened knife and Hussain sustained a serious bodily injury.
Introduction
Penal code is the legal code governing crimes and their punishment.1 Code of Criminal Procedure is the body of state law dealing with procedural aspects of trial for criminal cases.2 in the given scenario 4 Simon, the accused can be charged for series of criminal acts which he has done against Hassan, the victim. The offences he has done can be identified under the penal code. They are;
1. Criminal breach of trust (s388) 2. Criminal intimidation (s483) 3. Abetment of the doing of a thing (s100) 4. Attempt to murder (s300) 5. Grievous hurt (s311)
Discussion
1. Criminal breach of trust
According to the penal code;
“Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits criminal breach of trust.” (Section 388)
Simon bought a voluble set of furniture from Hussain on hire purchasing. He agreed to pay the price of Rupees Five Hundred Thousand within the six months of the delivery. But he didn’t pay the amount according to their contract. Using that property can be identified as dishonestly use of a property. The illustrations (c) explain;
“A, residing in Colombo, is agent for Z, residing in England, There is an express or implied contract between A and Z that all sums remitted by Z to A shall be Invested by A according to Z's direction, Z remits ten thousand rupees to A, with directions to A to invest the same on mortgage of coffee estates, A dishonestly disobeys the directions, and employs the money in his own business. A has committed criminal breach of trust.”
Section 389 of the penal code impose the punishment for Criminal breach of trust “Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”
2. Criminal intimidation
“Whoever threatens another with any injury to his person, reputation, or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.” (Section 483)
It further explanation;
“A threat to injure the reputation of any deceased person in whom the person threatened is interested is within this section”
Here Simon threatened Hussain by saying that he will physically attack Husain’s 19 years old unmarried sister if he does not give up his claim and terminate agreement in his favor. Illustration of this section makes it clear the threatening someone is including in this section.
“A, for the purpose of inducing B to desist from prosecuting a civil suit, threatens to burn B's house. A is guilty of criminal intimidation” Section 486 say;
“Whoever commits the- offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or with imprisonment for a term which may extend' to seven years, or to impute unchastely to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
3. Abetment of the doing of a thing
“A person abets the doing of a thing who-
Firstly - Instigates any person to do that thing; or
Secondly- Engages in any conspiracy for the doing of that thing; or
Thirdly- Intentionally aids, by any act or illegal omission, the doing of that thing” is defined as an abettor under the penal code. (Section 100)
Simon used Podi Nihal to heart Hussain. Therefore he is an abettor under this section of the penal code. Conspiracy for the doing criminal act is an offence. Though Simon hired a mercenary for the intended offence he cannot escape from his liability. He clearly had the criminal intention and the actus rea of the offence was carried out through another person. Explanation 1 says that;
“A person who by willful misrepresentation or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.”
Abetting for an offence is punishable criminal act under the Section 102 penal code. “Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.”
4. Attempt to murder
“Whoever does any act with such intention or knowledge and under such circumstances that if he by that act caused death he would be guilty of murder” (Section 300)
Podi Nihal stabbed Hussain with a sharpened knife and Hussain sustained a serious bodily injury. According to the facts the attack was seriously amount to caused death, though Hussain survived. It is clear that He had the knowledge and under such circumstances that if he by that act caused death. Because he was the one who planned the criminal act. Therefore it is enough to hold the attempt to murder under the penal code.
The illustrations explains;
A shoots at Z with intention to kill him under such circumstances that, if death ensued, A would be guilty of murder. A is liable to punishment under this section.
5. Grievous hurt “Whoever causes bodily pain, disease, or infirmity to any person is said to cause hurt." (Section 310)
“The following kinds of hurt only are designated as grievous"
“Any injury which causes the sufferer to be in severe bodily pain or unable to follow his ordinary pursuits, for a period of twenty days either because of the injury or any operation necessitated by the injury” (Section 311)
Podi Nihal’s act cause serious harm at the end. Again he did hurt by dangerous weapons. Voluntarily causing hurt by dangerous weapons or mean;
“Whoever, except in the case provided for by section 325, voluntarily causes hurt by means of any instrument for shooting, stabbing, or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” (Section 315)
Conclusion
Criminal procedure code guides the prosecutor about the way of arresting the offenders Simon and Podi Nihal and carrying out the trial at court.
Offence has Whether Whether Whether a Punishment By what Whether done by Simon bailable or Peace warrant or under the Court other compoundabl not Officer a Penal Code than High e or not may summons Court arrest shall triable without ordinarily warrant issue in or not first instance 1. Criminal breach Not bailable May arrest Warrant Imprisonment Magistrate's Compoundable of trust (s388 without of either Court. & 389) warrant description Primary for three Court, except years, or fine, where the or both value of the property exceeds five hundred rupees. 2. Criminal Bailable Shall not Warrant Imprisonment Magistrate's Compoundable intimidation arrest of either Court. (s483 & 486) without description Primary warrant for two years, Court, except or fine, or where threat both is to cause death, grievous hurt or destruction of property by fire or cause an offence punishable with death or with imprisonmen t which may extend to seven years or impute unchastity to a woman. 3. Abetment of the According May arrest According The same The court According as doing of a as the without as a punishment (including the the offence thing (s100) & offence warrant if warrant or as for the Primary abetted is abetted is arrest for summons offence Court) by compoundable Abetment; of bailable or the offence may issue abetted which the or not any offence, if not abetted for the offence the act may be offence abetted is abetted is made abetted triable. committed in without consequence warrant, and where no but not express otherwise provision is made for its punishment (s102) 4. Attempt to Not bailable May arrest Warrant Imprisonment Magistrate's Not murder (s300) without of either Court. compoundable warrant description for ten years, and fine 5. Grievous Bailable May arrest Warrant Imprisonment Magistrate's Compoundable hurt without of either Court. (s311 (i) & 315) warrant description Primary for one year, Court, except or fine of one where hurl ; thousand caused to a rupees, or public officer, both member or employee of a public corporation or a member or employee of a local authority, engaged in the exercise, performance and discharge of his powers, duties and functions.
Table 4.3
Simon can be charged for the offences;
1. Criminal breach of trust 2. Criminal intimidation 3. Abetment of the doing of a thing 4. Attempt to murder 5. Grievous hurt
Podi Nihal liable for;
1. Attempt to murder 2. Grievous hurt
Reference
1. wordnetweb.princeton.edu/perl/webwn on 2011-09-28 2. wordnetweb.princeton.edu/perl/webwn on 2011-09-28
4.3 Briefly describe the law relating to bail and identify whether the offences referred in the scenario are bailable or non bailable. (Class Activity) CONSULTED WORKS
Referred books
1. GENERAL PRINCIPLES OF CRIMINAL LIABILITY IN SRI LANKA A Comparative Analysis, G.L. PERIS, ISBN 955-8156-18-3, Stamford Lake (Pvt.) Ltd.
2. OFFENCES UNDER THE PENAL CODE OF SEI LANKA, G.L. PERIS, ISBN 955-8156- 09-4, Stamford Lake (Pvt.) Ltd.
3. UNLOCKING CRIMINAL LAW, Jacqueline Martine & Tony Storey, ISBN 978 1 444 109 153, Hodder Education An Hachette UK Company, 3rd Edition.
4. Halsbury’s Laws of England, Edited by: The Right Honourable Lord MacKay of Clashfern, ISBN: 0406047766 , LexisNexis Butterworths 3rd Ed.
5. Glanville Williams, Criminal Law: The General Part, ISBN, 0420382909 ,Stevens & Sons, 1953, 2nd edition
Referred Web sites 1. http://www.judcom.nsw.gov.au 2. http://en.wikipedia.org 3. http://www.cps.gov 4. http://sixthformlaw.info 5. http://www.lawteacher.net 6. http://en.wikipedia.org/wiki/Law 7. http://www.law.harvard.edu 8. http://www.justiceministry.gov.lk 9. http://www.guardian.co.uk/law 10. http://www.law.cam.ac.uk 11. http://www.topix.com/law 12. http://www.law.columbia.edu 13. http://www.law.stanford.edu 14. http://www.law.cornell.edu 15. http://www.intute.ac.uk/law