Criminal law Essay Example | Topics and Well Written Essays - 2000 words

Criminal law - Essay Example The most important thing that needs to be point out in respect of criminal law is that it is based upon actus reus, mens rea and the absence of defences. The element of a reasonable person is required in respect of mens rea and therefore the other element that are required for the offences would not be discussed. Mens rea has been defined as a state of mind, intention or recklessness which is required for a certain crime. There is an ongoing debate and argument in respect of subjectivists and objectivists who tend to argue in different directions. The subjectivists argue that to the minimal level of serious crimes, the mental element that should be required should be awareness of the person’s actions and perceiving the surrounding circumstances as well as the results that would flow from the actus reus. On the contrary, the objectivists the argument rests on the fact that it should be sufficient mens rea if it is proved that a reasonable person would have foreseen the circumstances as well as the results that would flow from the actus reus and would therefore not be dependent on the awareness of the defendant. There have been competing claims which have been put forward by both. In respect of the subjectivists the main argument vests on the fact that there was self governance on the part of the individual who committed the crime and went contrary to the law. The objectivists on the other hand pointed out to the fact that there should be criminal punishment if it is found that his inadvertence was in respect of a substantial and obvious risk of the proscribed harm, which should have been perceived by the defendant. Even though there have been academic opinion that ‘the torch of orthodox subjectivism carried by Glanville Williams and Smith and Hogan and then by the Law Commission should be douse’ (Ashworth, POCL, p.253) it is still what is being followed in respect of serious offences and has been reiterated in the recent case of G1 where Lord Bingham said ‘it is a salutary principle that conviction of serious crime should depend on proof not simply that the defendant caused (by act or omission) an injurious result to another but that his st ate of mind when so acting was culpable. This after all, is the meaning of the familiar rule actus non facit reum nisi mens sit rea. The most obviously culpable state of mind is no doubt an intention to cause the injurious result, but knowing disregard of an appreciated and unacceptable risk of causing an injurious result or a deliberate closing of the mind to such risk would be readily accepted as culpable also. It is clearly blameworthy to do something involving a risk of injury to another...’ Despite of such an obvious favour being given to the subjectivist approach, there have been objectivist elements in respect of serious offences that have been laid down expressly by House of Parliament in particular sexual offences and certain offences related to money laundering. The element of intention are central to mens rea, however, in respect of the current situation the element of recklessness would be discussed. The situation in respect of criminal law has been that for crime s it was either intention or recklessness that would lead to construal of imposition of liability. In respect of recklessness there are two main elements that need to be construed, the first one being that of subjective recklessness and the other is that of objective recklessness. For establishing subjective recklessness the test that was laid down in Cunningham2 needs to fulfilled, which basically requires that an unjustifiable risk was taken as well as proving the fact that the defendant