Wednesday, 23 March 2016

Insanity vs Automatism. TEST Question.

The night after returning home after a long air flight, Andrew’s sleep is disturbed by the sound of a couple having enthusiastic intercourse next door. Although still sleeping, Andrew, who has no history of sleepwalking, gets out of bed and enters his flatmate Bella’s bedroom. Bella screams upon seeing him and tries to push him out of the door. Andrew pushes Bella on to the bed and has intercourse with her. Minutes later he awakes with no recollection of the intercourse.

Discuss any criminal offences which may have been committed by Andrew and any defenses which may be available thereto.

Possible answer.

There are two possible offences that Andrew may have committed. Assault contrary to Section 39 of the Criminal Justice Act of 1988 and Rape contrary to the Section 1 of the Sexual Offences Act 2003. Although the scenario does not indicate whether or not Bella consented to the intercourse, one is left to infer that because of Bella's earlier resistance to Andrew's entry into her room the possibility of rape is worthy of mention. He did assault her by pushing her on the bed and also causing her to to fear that she would have  been assaulted when he entered the bedroom. However, Andrew might be tempted to raise the defense of automatism  based on what Lord denning said in Bratty 1961,
  "No act is punishable if it is done involuntarily: and an involuntary act in this context - some people nowadays prefer to speak of it as 'automatism' - means an act which is done … whilst suffering from concussion or whilst sleepwalking" 
Lord Denning's words have definitely created a stir in establishing whether or not simple automatism can be used as a defense to sleep walking. This has been very difficult to establish in practice.

The insanity test under the Mcnaghten Rule dictates that if "at the time of the committing of the act, the party accused was labouring under such a defect of reason, from a disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong " then this person would be be rendered a special verdict of "not guilty by reason of insanity"  

Andrew had been on a long flight which placed a considerable amount of stress on his body or result in desynchronosis, a condition informally known as "Jet lagged". In R v Quick where it was found that the insulin cause the hypoglycemia the defendant was acquitted. This external trigger brought about his internal condition and thus should not be considered insane. For non-insane automatism one must have had an external trigger. While some may be tempted to call jet lagged an external trigger it causes stress on the body. in Rabey it was said "Any malfunctioning of the mind or mental disorder having its source primarily in some subjective condition or weakness internal to the accused (whether fully understood or not) may be a 'disease of the mind' if it prevents the accused from knowing what he is doing, but transient disturbances of consciousness due to certain specific external factors do not fall within the concept of disease of the mind . . . In my view, the ordinary stresses and disappointments of life which are the common lot of mankind do not constitute an external cause constituting an explanation for a malfunctioning of the mind which takes it out of the category of a 'disease of the mind.' To hold otherwise would deprive the concept of an external factor of any real meaning." Thus there is little case law to support that a sleepwalking condition would result in outright acquittal. In Burgess 1987 the defendant was sleepwalking when he hit his friend with a video recorder. He received a special verdict of not guilty by reason of insanity and that's most likely the verdict that Andrew would receive. 

Wednesday, 16 March 2016

Breaking the causal sequence Part 2 of the Causation

When will the causal sequence not break or be transferred?: Courts used to be very rigid with respect to victims, who, as a result of fear of an attack, or as a reflexive response to an assault,  end up suffering harm. In the case of a woman who, in an effort to flee from her attempted rapist runs into the road frantically, and gets hit by an on-coming vehicle; will the attempted rapist be be said to have "caused" her injury? In Roberts the defendant gave a lift to a young lady who he met at a party. He brought her to a remote location where he made sexual advances. She refused and he subsequently sped off while still attempting to make advances. As a consequence of his advancement she jumped out of the car and suffered  cut, bruises and a concussion. The defendant was convicted of Assault occasioning actual bodily harm under section 47 of OAPA. The Courts in more recent times however are placing the a requirement of "reasonably foreseeable risk of some serious Harm. If the victims acts negligently subsequent to a defendants wrongful act unless that act

In cases where the victim acts in a manner that is so daft or disproportionate then it would not be considered reasonably foreseeable by nature thus that disproportionate action will be considered to have broken the chain of causation. There are other ways in which the chain of causation will be said to have been broken. If you are punched in the face and break a tooth, you go to the hospital to fix it and find out two weeks later that you're diagnosed with HIV. Should the man who punched you be charged with grievous bodily harm under section 20 of OAPA when it is discovered that you got it from the hospital you visited as a result of the punch which broke your tooth? The answer is no. There are a limited amount of ways HIV can be reasonably expected to  be transmitted. Through punching is not one of them. In R v Jordan (1956) 40 Cr App E 152 the victim was stabbed, however the doctors gave him medication which was directly attributable to the cause of his death which in this case was pneumonia. If peradventure there was any any link between his stab wound and his pneumonia, there may have been a possibility that the causal sequence would not have been broken making him the legal cause of the homicide. So in our previous exapmle where the victim was punched there are no possible connection to HIV thus the medical practitioners mal-practice would have been the legal cause of the HIV.

Monday, 14 March 2016

The "Actus Reus" of a crime. Causation and Consequences

If you are charged with a crime, having a basic understanding of how the prosecution thinks, what they are looking to prove and ultimately what they need to get you convicted, can help you put into perspective your current situation and also help guide you along this journey. In this post we will analyze what we consider a few terms.

  1. The difference between a "factual cause" and a "legal Cause"
  2. Conduct crimes and Result crimes
  3. Intervening events. 

Conduct and Result Crimes. 

A conduct crime is an "actus reus/wrongful act" which does not require proof of harm. For e.g. when someone ignores a red light, they have not yet cause any harm, but have committed a criminal offence. Theft, perjury and possession of drugs and firearms.

Result crimes are crimes whose actus reus" (wrongful act) results in some form of harm coupled with a wrong conduct. Criminal Damage, ABH (Assault occasioning bodily harm), and murder are examples of result crimes. 

Your conduct or omission is considered to be the factual cause of the result if the result of your act or omission would not have occurred "but for" your behavior or lack thereof.

Let's look at an example taken from the study University of London Study Guide. 

D, as a joke, places a wet bar of soap on the floor of V’s bathroom, hoping that V will slip on the soap. V does slip on the soap, hits her head on the floor and is knocked unconscious. Does D cause V’s injury? 

This sounds like a Section 47 OAPA offence Assault Occasioning Bodily harm. If D was charged with a section 47 offence He would need to prove that he did not intentionally or recklessly cause Vs injury, however as you can probably deduce, would V have suffered his injuries had the soap not been intentionally placed there by the defendant? The defendant might want to argue that he did not intend to cause her to hit her head and faint but only intended for her to step on the soap. the prosecution might suggest however that falling, and also possibly injuring was reasonably foreseeable and thus d should be held liable for Vs injuries. 

In the above example D is thus the factual cause since the V would most probably not fallen and hit her head had the bar of soap not been placed there. 

Lets alter the example as in teh study guide 

"As above except that V dies because her skull was unusually thin. Does D cause V’s death?"

Does D cause V's death. The answer to this question will determine whether or not V is charge with manslaughter. He probably should not be charged for Murder since he would need to have malice aforethought. This could have been implied or expressed malice. Meaning he must have had an intention to cause GBH (implied malice) or intend to kill (Express malice). It will be difficult for the prosecution to prove that D intended to kill V when he chose to place the bar of soap there. However the prosecution might want to charge him with manslaughter since V did die. Can V be considered to be the legal cause. The answer is YES!. The eggshell Skull rule here is applicable. Death was precipitated by the thin skull of the victim, it was still the placing of the bar of soap which initiated the causal sequence, its also the cause of the fall, and the subsequent hitting of the head. Thus Defendant can be convicted of gross negligence manslaughter. 

I will be posting about breaking the causal sequence in part 2. Hope you learnt something new. 

Tuesday, 23 June 2015

Is NIC really “beneficial” to St Lucians? Weighing the evidence.

I decided recently to research some of the pertinent legislation of St Lucia, as part of my “coming to know” exercise. I wanted to write about laws that affect the daily lives of the St Lucian Public. In this article I will be reviewing some sections of the National Insurance Corporation Act. It is amazing the things you learn when you do a little bit of reading. Some of you may already be familiar with this information, however for the benefit of us who may still be ignorant of a few things I will share my opinion on section 56- Survivors pension and Grant of The NIC Act.
Section 56 (1) A person who has been widowed is entitled to a survivor’s pension at the prescribed rate if—
 (a) the late spouse satisfied the prescribed contribution conditions for a survivor’s pension; or was at the time of his or her death, in receipt of a pension under this Act;
(b) he or she was married to his or her late spouse for at least 3 years prior to his of her death;
(c) he or she was, at the time of the spouse’s death over the age of 55; or
(d) he or she was under the age of 55 and had the care of his or her children (with his or her late spouse) under the age of 16 or 18 if the children are in receipt of a full-time education.
So the important things that married couples of individuals who are contributors must take note of is that if you are married less than 3 years to a contributor you will not be entitled to survivors benefit. If you are not above 55 at the time of his/her death you are not entitled to receive any benefits. Now how unfair is that!!! Shouldn’t you receive such benefits any time your spouse dies? Let’s dissect this a little more. NIC is sitting on a massive fortune. If you were to investigate the net worth of the NIC and the profits it generates you would be surprised. According to the 2009 annual report (wish they provided a more updated report on their website) the total assets owned is in the tune of $1.35 BILLION dollars. They also have holdings in subsidiary companies namely; NIPRO, Castries Car Park, Blue Coral, St Lucia Mortgage Finance Company. In 2009 The NIC received over $87 million in annual income/contributions of which only a little over 46 million was paid out in short and Long term benefits. According to their annual report of 2009, NIC was profiting over 25 million dollars. After adding their "other income" to the mix they were operating at a profit of 94 million dollars. How much of that money is the hard working St Lucian Public getting in return?
The Castries Car Park is 100% owned by NIC. In 2009, they recorded an average occupancy of 55%. In other words on average only a little over half of the car park was full on any given day. Now I’m sure the NIC would have love a greater rate of occupancy, but it begs the question. Why aren’t more people using the carpark? If I was a conspiracy theorist I would make this absurd proposition for consideration. Are you aware that in “public opinion” Conway was considered one of the most dangerous communities at one point? Are you also aware, that NIC purchased millions of dollars in government bonds? And that NIC’s partnership is highly beneficial to both the GOSL and NIC? Back to my conspiracy theory. If Conway was considered dangerous by the public, and the public consequently were not utilizing the facility. Could it have been NIC who lobbied for the government to displace the Conway residents? Hmmmmmm???? Again I’m not a conspiracy theorist so I won’t make that “silly” assumption. Is this really beneficial to you? I guess you’ll decide. There are more observations I made while analyzing the benefit of NIC, but I don’t want to make the article exorbitantly lengthy, so look out for the next article which I will be posting in a few days.
Here’s to happy reading!!!! 

Wednesday, 7 January 2015

Building Blocks of The Criminally Liable

If one is accused of committing a crime, it is important that he/she understands and accept the reality. Being accused of a crime is no sweet situation. But a basic knowledge the elements necessary to charge you with an offence might assist you in dealing with your already aggrieved situation.

I will be exploring in my post what elements make up the building blocks of a criminal Liability. In other words what elements must be proven in order that i may be considered to have committed a crime. In my studies over the years I have come across a very simple equation to help me understand this sometimes complex issue. This equation is as follows.Prohibited conduct+Mental Element= Criminal Liability.

Lets go deeper. If one is accused of doing something "wrong" or criminal we first need to ascertain what is the "rule" that he is accused of breaking, and where is this rule found. What gives this rule its authority etc. This can be applied in many institutions. In religious institutions, the rules that believers are accused of breaking are often found in the "holy books". These holy books are often considered words of the "deity"of the subjects and as a result gives the rules powerful authority.

In states and countries doing something criminal is somewhat different. Breaking a religious vow is not considered criminal in the traditional sense, unless the state is under what is called a theocracy (governed by a deity/God)-like ancient Israel. In order for an act or "omission" to be considered prohibited, is must be found in Laws drawn by the legislative branches of governments or its subsidiaries. In monarchical societies however, the word of the monarch is often times considered law. Going contrary to the word of the monarch might result in you being accused of committing a prohibited act. In St Lucia you can find Laws in a codified constitution or in a body of laws called " The Laws of St Lucia and other secondary sources.

 When accused of a crime one needs to ascertain " What is the rule that I have broken or I am accused of breaking".

The second element that must be present is called the mental element. In Law there is a term used to describe this element. "Mens Rea" is a Latin Phrase meaning "Guilty Mind". So not only must one commit the prohibited act or omission, but they must have done it with the intention to carry out the prohibition.  If per-adventure a store manager stops you at the door on your way out of his store and decides to search your pocket. In it he finds a very pricey merchandise and decides to accuse you of theft. Immediately you need to ascertain the rule that you are breaking. In the UK s.1(1) Theft Act 1968 states : "a person is guilty of theft if they dishonestly appropriate property belonging to another with the intention to permanently deprive the other of it".  That is the rule he would be accused of breaking. The "act element" (Actus Reus/Prohibited act) in the rule is "Dishonestly appropriating property belonging to another".
This shop keeper would need to prove beyond a reasonable doubt that you took the merchandise dishonestly. Secondly He would need to prove that you took it  with the intention to permanently deprive the him of it".

So if you did place it in your pocket but took it with the intention to show it to a friend standing at the door and your intention was to return the item to the shelf, he cannot convict you if your intention is proven to be true. However by the time he accuses you, he would have locked his doors so you don't leave. Called the police! When the Police arrives you are found with the merchandise in your pocket. The police decides to arrest you and tell you we are taking you to jail. The process spirals very quickly out of control and complicated from there. So your best bet is to stay out of trouble. If you ever do, don't panic.

Call a Lawyer.

This article is only for the purpose of sharing and should not be used as advice in criminal proceedings. 

Sunday, 27 April 2014

Malicious Wounding

Section 20 of the OAPA:.

"unlawfully and maliciously wounds or inflicts any grievous bodily harm, either with or
without a weapon or instrument, upon any other person".

Conduct elements include wounding and inflicting Grievous Bodily Harm . Remember conduct elements are actions that must be present if one was charged with Malicious wounding. So the individual must maliciously wound or inflict GBH. Remember a wound requires the penetration of both skin layers. So if (A) shoots (V) with a nail gun and the nail pierces his arm, then one can be charged under section 20 of OAPA ( Offences Against the Person Act). But why can't this individual be charged under section 18? (A) definitely wounded (V) because the wound pierced both skin layers, however in section 18 one is required to prove "intent" to cause grievous bodily harm. Specific intent is required in Section 18.

So if my understanding serves me correctly, one can wound an individual without intending to cause serious harm. Or maybe his intention is to cause serious harm but proving the intention is sometimes too difficult and so  an individual gets charged under section 20 instead. GBH must also be "inflicted". The word inflict denotes that a motion or action must be transferred from the offender's body that translates into a degree of physical assault rendered to the victim . However, after R v Wilson (1984) GBH under section section 20 does not require a physical assault. (A) can dig a hole with the hope that (V) will fall in and seriously injure themselves and A could be charged with malicious wounding under section 20. If (V) were to fall and break his leg and arm, (A) can still be charged under section 20. Though he did not actually physically assault (V), the digging of the hole with the intention of causing harm to (V) and the consequent falling of (V) into the pit and breaking of his limbs would be considered as inflicting grievous bodily harm.

So folks before you decide to beat someone up or do something malicious that will result in serious wounds, think of the 5 years in prison that will ensue when convicted.

Friday, 25 April 2014

The Rule of Law

I often wonder how did humanity develop a need for what is called Law? How did society develop to a point where we were able to discern that which was morally unsound and unjust and construct a set of rules which served as a catalyst for preserving a high quality social fabric? What is the purpose of Law? If "Law" is to be a deterrent for behavior that is considered unethical, then it is obviously not doing a very good job, because society is pusillanimously fighting to remain less demonic and unethical than the demons themselves, and it seems as though, it is a fight that they are sadly loosing. So If Law cannot and is not preventing moral decay what is it's purpose and why is it existing?

Here is where my studies took me to a concept called the "Rule of Law". Lord Bingham, a former Master of the Rolls and Lord Chief Justice in England and Wales, highlighted what is considered 8 sub rules to help define the term "Rule of Law". The 8 sub rules are as follows:

  1. The Law Must be accessible and so far as possible intelligible, clear and predictable.
  2. Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.
  3. The laws of the land should apply equally to all, save to the extent that objective differences require differentiation
  4. Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly for the purpose of for which the powers were conferred without exceeding the limits of such powers and not unreasonably.
  5. The law must afford adequate protection of fundamental rights.
  6. Means must be provided for resolving without prohibitive cost or undue delay, bona fide civil disputes which the parties themselves are unable to resolve.
  7. Adjudicative procedures provide by the state should be fair.
  8. The rule of Law requires compliance by the state with its obligations in international law as it is national.
What is Lord Bingham saying. Are these sub rules really helping me dissect this concept of the "Rule of Law"? My head hurts!!! Let's see; 

So whatever "the Law" is, it must be accessible, for a number of reasons. If one cannot access the law or these rules made law", how can one ascertain what actions carry penalties? This of course does not mean that everyone will know all the laws. If that were the case, there will be no need for lawyers, but thankfully, (at least for the purpose of me being a law student), not everyone knows all the laws. Not even Lawyers themselves, but they understand how it works and can better guide you, when you have been told by the authorities that you have broken a law. So feel free to check with your lawyers for more legal advice. For the purpose of keeping the article short I will not go into all the reasons why accessibility is important. Those who are under the penalty of the Law must understand the Law itself. It must be clear to the subjects of its' rule. In this instance I do not believe that we will ever achieve rule of law clear enough. Firstly because clear is relative to one's understanding and secondly, if law was sufficiently clear then there would be no need for judges to "interpret" the clear law. 

If law is to serve its true purpose, then it should be able to assist in the resolution of matters pertaining to liability and rights.  The Law cannot be for one set of individuals only. It is often felt by some that in a lot of developed countries, celebrities usually go unscathed when they break the law, and individual who do not fall within the peripherals of financial obesity, and influence, get the harsher treatments before the law. That should never be the case when we all stand before the rules made law.  

Some consider the rule of law to be "content free. This  means that the rule of law has to deal with the form that the law takes, and the process by which laws are constructed. That was a concept identified by a legal writer named Joseph Raz who identified 8 basic principles that encapsulates this approach. The other concept is the content rich concept of the rule of Law. This concept is very different and is associated with identifying that humanity has basic rights as it relates to each other and the state. These "rights" by virtue of their nature and the fact that they are perpetually extant and present wherever human beings are present, make up the rule of law. That is in summary the concept of the content rich rule of Law. So I hope you are no longer as clueless as I am with regards to what is the rule of law. It is a complex area of the law, especially because there are varying opinions as to what exactly is the nature of the rule of law. If there are questions as to the nature of something, defining it will always be a  rather complex matter.