Crime IV – Actus Reus IV

Whether an accused is convicted of murder, manslaughter, or otherwise depends of the nature of the crime. The more serious the crime the higher the chances of the accused being convicted of murder or manslaughter despite the fact that there were intervening events that may have exacerbated or aggravated the victim’s injuries.

While the courts are reluctant to convict where the harm that was inflicted was not fatal or non-fatal, the courts are more than prepared to find the accused guilty of either murder or manslaughter when the injury would most likely have been fatal despite the fact that there may have been intervening events that might have either exacerbated or aggravated the injury.

The cardinal principle of English criminal law has always been “it is better to let ten guilty persons escape than to let one innocent man suffer” – Sir William Blackstone (1765) and it is worth keeping the principle in mind during our journey through crime.

There may be instances where the decisions that have been handed out may seem unjust but rest assured in most instances or circumstances, a conviction for murder or manslaughter is not handed out lightly and more often than not it is based on convincing or overwhelming evidence.

In R v Cheshire (1991) the accused shot his victim in the stomach and thigh and during surgery the victim developed breathing difficulties and had to have a tube inserted down his throat to help him breath or to help facilitate breathing.

After the surgery, his condition was prognosed as being no longer life threatening and he was, from all accounts, on the road to recovery. However, he developed post-surgical complications because of the tracheotomy and died as a result.

During the trial, the accused put forward the argument that his actions were not the sole cause of death and the defendant was on the road to recovery but it was the tracheotomy that had precipitated death.

If the case were to be decided along the lines of R v Jordan (1956), the accused might not have been found guilty of murder but the court decided that in this instance the accused was guilty. It was his actions that had put his victim in a situation where he had to seek medical attention or treatment and had he not fired the shots or pulled the trigger the defendant would not have been in a situation where he would have had to seek medical treatment.

Furthermore, there is a vast difference between a stabbing and a shooting and the latter by far is the more serious offence. While it is more with regards to intent or mens rea, earlier on, in tort, we looked at examples of protective armor worn by members of the emergency services during a fire and we argued that the level of risk that firefighters agreed to accept, when they signed on, was the level of risk that their body armor or protective gear allowed them to take.

The body armor that is worn by members of the protective services is not infallible and there are certain areas where they are still vulnerable especially the chest area and the head. If the accused fires a shot, in a riot, that hits the chest, and the accused than argues that it was a stray shot or he had no intent to kill that argument would not hold water because the probability of a stray shot hitting the victim in the chest is almost negligible. If a bullet hits a member of the protective services in the part of the body where his or her protective armor is most vulnerable then the chances are very, very high that the shot was fired with the intent to kill and the chances are also very high that the shot was fired by someone who was adept at the use of firearms or someone who was capable of directing the shot towards any part of the body that he or she intended.

Similarly, in R v Cheshire (1991) despite the fact that it was the surgery or the follow on from the surgery that had caused the death, the chances are high that the accused intended to kill and given a chance to kill, he would have done so had the opportunity presented itself.

Copyright © 2018 by Dyarne Ward

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Crime III – Actus Reus III

Before the act can be determined to be the cause of death or the principle cause of death, it must be established that the act was the operating cause or the prime cause of death. In R v Smith (1959) two soldiers got into a fight in the barracks and the accused stabbed the other soldier with a bayonet, which in most cases is fatal. It is a lethal weapon when used in the correct or prescribed manner.

The injured soldier was carried to the hospital and while he was being taken to the hospital he was dropped twice. The accused was charged.

During his trial, the accused argued that his act was not the sole cause of the death and the acts of dropping the soldier while he was being carried were intervening acts that had aggravated the injury. The court, in line with the decision in R v Benge (1865) rejected the argument on the grounds that the wound was the operating cause or the principle cause of death.

It is worth comparing the decision in R v Smith (1959) with that of R v Jordan (1956). In both cases the victim was stabbed and there were intervening acts between the stabbing and the deaths that may have exacerbated or aggravated the injury. It is possible to distinguish between both cases in the following manner:- In R v Smith (1959), the injury was so severe that the fact that the defendant was dropped twice would not have made much of a difference because that is how lethal a bayonet really is, whereas in the latter, R v Jordan (1956), the stabbing was not fatal and the victim was on the road to recovery and from all accounts would have recovered but for the actions of those who attended to him in the hospital.

The decision in R v Smith (1959) was reaffirmed in the case of R v Blaue (1975). The accused, stabbed the victim 4 times for refusing him, and the victim was rushed to the hospital where she refused a blood transfusion because she was a Jehovah’s Witness and her religion prevented her from having blood transfusions. At the trial, the defendant argued that her death was not caused by his actions but rather the intervening act of the victim.

The court rejected the defendant’s argument and found him guilty on the basis that it was his act of stabbing that had been the operational cause or the material and substantial cause of death.

It may also be said that, while it is used more in reference to a victim’s physical or mental attributes, that the defendant is bound to take his or her victim as he or she finds them i.e. the thin skull rule, if applicable, would apply.

Similarly, in R v Malcherek (1981) the accused had stabbed his wife. The victim was rushed to a hospital and after being put on life support systems, the doctors after monitoring the patient decided to switch life support off because there was no brain activity.

The accused was charged with murder and at the trial the accused argued that the act of switching life support off was an intervening act and that the act had caused the death of the victim. The court rejected the argument and decided that the accused was guilty. The act of stabbing the victim was the operational cause of death.

In R v Steel (1981) the accused sexually assaulted a woman and thereafter hit her over the head with a stone. The victim was taken to the hospital and was placed on life support but life support was switched off when the doctors realized that there was no brain activity. At the trial, the defendant tried to argue that it was the switching off of the life support systems that had caused the death but the court decided that it was the defendant’s act that was the operational cause of death.

In R v Pagett (1983) the accused was a married man who got into a relationship with the victim a 16-year-old. The victim, who was pregnant at the time, ended the relationship and the estranged ex stormed into her parents’ house, where she was staying, armed with a shotgun and shot the father in the leg before he took the mother and daughter hostage. While they were driving they were spotted by police officers who gave chase and during the chase the accused kicked the girl’s mother out of the car and drove to his flat where he held the girl hostage, still armed with a shotgun.

The police surrounded the flat and while they were negotiating with the accused, they saw someone approach. Because of poor visibility they mistook the person to be the accused and opened fire but it was not the accused but the girl he’d taken hostage. The accused was charged with manslaughter.

The accused argued that it was not his act that had killed the girl but the court rejected the argument and found that it was the accused’s actions that had precipitated death and found him guilty accordingly.

Copyright © 2018 by Dyarne Ward

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Crime II – Actus Reus II

In R v White (1910) the accused poisoned his mother’s drink with the hope of killing her but before the poison could take affect the mother suffered a heart-attack and died as a result. The accused was charged in court and he was without doubt blameworthy because his act was malicious but the fact remained that it was not his act that had killed her.

The court determined that the question that was to be asked was would the mother have died but for the defendant’s actions? The test or the “but for” test here is similar to the “but for” test in tort i.e. the question that has to be asked is whether the plaintiff would have died or suffered serious injury or grievous bodily harm “but for” the defendant’s action. The court acquitted the accused of murder but he was found guilty instead of attempted murder.

An accused will only be guilty of murder if the act caused the death of another. In R v Jordan (1956) the accused stabbed a man and the victim was rushed to the hospital. The victim was given the proper medical treatment but he died almost a week later but not from the wounds that he had sustained but rather from the treatment itself which resulted in another illness and he died as a result of complications arising from the illness. The accused was charged but was found to be not guilty of murder.

It is not enough to merely establish that it was the defendant’s actions that ultimately led to the death of the victim. The following criteria must also be satisfied: –

1) The accused was culpable or blameworthy

2) The victim would not have died but for the act of the accused and

3) There were no other intervening acts in between or acts that precipitated the death or caused the death when in fact death would not have been the result of the defendant’s actions.

Despite the fact that it may be obvious to everyone that the defendant intended to kill the victim, this can be inferred from the act, the defendant is given the benefit of the doubt. That does not mean that he or she will not be imprisoned but the sentence would be lesser or not so severe and in some cases or instances, depending on where the defendant is tried, it may make the difference between a long prison sentence and being sent to the gallows.

In R v Adams (1957) the defendant a doctor was charged with murder. According to the facts of the case the doctor administered lethal doses of drugs to terminally ill patients and those drugs shortened the life expectancy of the patients but it was done at the request of the patients.

The doctor was charged with murder but the court acquitted him of the offence and despite the fact that being a doctor was not in itself a defense, being a doctor does not exempt an accused of murder, the court based its decision on the fact that a doctor is entitled to do all that he or she can to ease the pain and suffering of his or her patients, even if it means reducing or shortening the life of the patient.

The above decision also has to be looked at in light of euthanasia or physician assisted suicide in cases of terminally ill patients. In certain countries: – Belgium, Canada, Luxembourg, the Netherlands, Switzerland and Taiwan and in certain states in the United States, euthanasia is legal but it depends on the circumstances of the case or the condition of the patient.

Would it make a difference if the patient bequeaths the doctor a Rolls-Royce for his help? Looking at it in light of countries or states that have legalized euthanasia, if the circumstances allowed the doctor to assist the patient in bringing about his or her own death, then the answer would be no.

If a doctor in Montana assists a patient in dying, and the circumstances of the case allowed him or her to do so and the grateful patient leaves him a horse ranch somewhere in the state, then it is just something that we have to accept. It also tells us that patients who are terminally ill are sometimes so desperate that they are actually grateful when someone helps them end the pain and suffering.

Copyright © 2018 by Dyarne Ward

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Crime I – Actus Reus I

Before a defendant or an accused can be adjudged guilty of a crime, there are two components that must be satisfied. The act of committing the crime or the actus reus and the mental element or the mens rea. The test that is applied is the subjective test i.e. the court will look into the defendant’s state of mind at the time he or she committed the offence as opposed to asking the question if a reasonable man would have acted the way the defendant did or would a reasonable man have failed to have acted under the given circumstances.

Actus Reus

Actus reus is often defined as the act of committing a crime and the general rule with regards to actus reus is that no liability will be imposed for a failure to act unless there was a voluntary undertaking of responsibility or a special relationship or some sort of a duty that compelled the accused to act.

Let us say for example that a couple adopted a child in accordance with the stipulated procedures and for some reason or other failed to feed the child and the child died as a result. Then an action may be brought against the adoptive parents in criminal law.

Likewise let us say that a couple who had a child, naturally, neglected to care for the child and the child died as a result then the couple will most likely have criminal charges brought against them by the relevant authorities.

Under normal circumstance an omission or a failure to act will not fall into the category of actus reus or the act of committing a crime unless there was a duty that was imposed on the defendant to act in a certain manner and the failure of the accused to act in the manner he or she was supposed to or required to led to either death or serious bodily harm to another.

In R v Pittwood (1902) the defendant was employed to man the gate at a level crossing and he went off for lunch without closing the gate during which time a man on a horse pulled cart attempted to cross the railway track and was hit by an oncoming train. The accident resulted in the death of the driver and the horse that was pulling the cart. The defendant was charged in court for failing to carry out his duties and was found guilty of causing the death of the driver.

However, if the defendant’s inactions would not have caused the death or serious injury and death or serious injury would have been the likely result even if the accused had acted then the defendant would not be adjudged guilty. In other words, the accused must be culpable or deserving blame before he can be adjudged guilty.

In R v Dalloway (1847) the accused, the driver of a horse drawn cart was driving his cart down the road, when suddenly a child ran out in front of the cart and was hit by it. The defendant was not holding the reins at the time the cart was travelling down the street and as a result deprived himself of the means of preventing an accident. The defendant was charged in court.

During the trial, the defendant adduced evidence to show that even if he had been holding on to the reins, the accident would still have occurred and the child would have suffered fatal injuries. The court acquitted the defendant and found him to be not guilty.

If an accused was grossly or overbearingly negligent and his or her negligent act had led to death or serious injuries to others than the defendant would most likely be found or held to be liable.

In R v Benge (1865) the accused, a prisoner, was in charge of a group of prison workers who were working on a railway track. The accused had misread the train timetable and had assumed that the train would arrive a couple of hours later than when it actually did arrive and as a result at the time the train came through there were workers on the track.

As a precaution however, the accused had sent one of the workers ahead, the worker was supposed to stand 1000 meters away from the others and was supposed to signal the driver the moment he saw the train appear.

The worker however only went half the distance but he did signal the driver as soon as he saw the train approaching. The driver however wasn’t paying much attention and hence did not have enough time to stop. The accused was charged in court.

During the trial, the defense claimed that the accused wasn’t entirely to blame and both the driver and the worker who was sent ahead were also equally to blame but the accused was found guilty nonetheless.

Copyright © 2018 by Dyarne Ward

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Black Elk (Seven Sacred Rites of the Lakota) E-Book

Chapter I

Black Elk was a famous medicine man from the Oglala Lakota (Sioux) and second cousin to the famed Native American warrior Crazy Horse who rebelled against the Federal Government for intruding on Native American territories.

Born on December 1st 1863 in Little Powder River Wyoming he was a medicine man of substance and his experiences, during which he becomes aware of the Seven Sacred Rights of the Lakota, reaffirms the outer body experience as propagated by Jung, which occur as a result of either natural sleep or induced sleep i.e. hypnosis. It confirms what parapsychologists like Jung have asserted for years in that the mind is a vast untapped resource and has never been fully explored.

When Black Elk was nine years old he was struck by a sudden illness that left him unconscious and unresponsive. During this time, he experienced visitations from cosmic entities who he described as thunder beings (Wakinyan) and who he perceived to be the forefathers or the ancestors of the Oglala Sioux. According to his accounts these spirits were kind and loving, and were very giving in their paternal affection.

His experiences further reaffirm the shamanic principle ardently advocated by well-known exponents of shamanism like Mircea Eliade in that, the shamanic gift is bestowed upon a person or an individual after a prolonged and sustained life threatening illness or experience. From all expert accounts, Black Elk’s narrative of his experiences are most likely true. He died on August 19th 1950 in Pine Ridge, South Dakota.

According to Black Elk, it started with repeated visitations from an ancient man, whose head was filled with white hair and who was wise beyond reason. The man was always alert; his eyes were constantly looking in all directions and he was full of fatherly affection. The old man surprisingly enough bears a striking resemblance to the heavenly father. He then imparts the Seven Sacred Rites of the Lakota to Black Elk.

The first of the Seven Sacred Rites is Inikagapi or Inipi (the rite to renew life). A sweat lodge is held in a dome shaped structure made of saplings and covered with hide or tarps and it symbolizes the shape of the universe or the womb of a pregnant woman.

Heated stones are placed in a large crevice located in the center of the lodge and water is poured over the stones by an itancan (leader) to create steam. The purpose of the ceremony is to pray for the spiritual and physical wellbeing of all sentient beings. The lodge utilizes all the powers of the universe: earth and the things which grow on the earth and powers derived from the other elements, water, fire, and air.

Before embarking on any type of spiritual journey the body has to be detoxified, and any remains of toxic residue in the body will be removed by sweating. The result of sitting or meditating in a dome shaped structure with heated stones placed in the middle is excessive sweating.

It is also important to realize that Black Elk specifically mentioned the shape of the structure. Dome shaped structures are symbolic to all religions and theologically the dome acts as a transmitter. Any vibrations resulting from chanting in this type of structure will be carried to the heavenly father.

The second rite is Hanbleceyapi (crying for vision). The vision quest is undertaken by an individual with the help and guidance of a holy man. A person elects to go on a vision quest to pray, communicate with the spirits, and to gain knowledge, strength, and understanding.

The person pledges to stay on an isolated hill for one to four days with a blanket and a pipe, but without food or water. Upon returning, the vision may be discussed with the Wicasa Wakan (holy man). Often the meaning of the vision is not readily apparent and the individual may be told to wait for knowledge and understanding.

The second rite is the seeking of visions or an attempt to bridge the gap between the conscious and subconscious mind, through the medium of sleep or deep meditation or dreamtime, whereupon, the subconscious mind will reveal the mysteries of the world to the dreamer in the form of vivid images.

Experts in the field have suggested that implanting the thought of bridging the gap between the conscious and the subconscious mind or seeking visions prior to falling asleep will help the subject achieve dream quest more easily.

The subject in short is instructing the conscious mind to abate or to stop resisting and thereby allows or permits the subconscious mind to take control.

The act of abstaining from food and water further weakens the body and the conscious mind and it debilitates the ability of the conscious mind to resist and allows the subconscious mind to assert itself.

Chapter II

The third rite is the keeping of the spirit (Wanagi Wicagluha). Death is a transition from one existence to another. The demise of the body does not mean death of the spirit or the soul and the spirit or the soul continues to exist long after the body has turned to dust or has been reduced to ashes.

The third rite of the Lakota is similar to the death rites of many other ancient cultures in that the spirits or the souls of the dead linger around their families or their prized possessions for a period of time before they crossover. It is a time that is used to coax the spirit into continuing with the journey.

The spirit especially in cases and circumstances of unnatural deaths has to be made to come to terms with death. Normally a special place is erected in honor of the spirit and it is done to commemorate the passing and to remember the deceased.

This special place may or may not correspond with an altar (what an altar is or isn’t is a question of perception) and friends and relatives are sometimes invited to join in during what is called a feeding ceremony or an occasion during which offerings of food are made and shared with the spirit.

The rite continues for a year and after a year the spirit is freed or released. During this rather testing time close family members of the deceased are forbidden or prohibited from taking part in any celebrations or festivities.

It has to be made clear that the mourning period is undertaken with love for the departed in mind. It is a grieving period that allows both the family members and the deceased to say their goodbyes. It is in essence a period of letting go and abstaining from celebrations and other festivities allows everyone to come to terms with the passing in the appropriate manner. It is also a time for silent reflection.

In 1890 there was a religious movement that consolidated numerous Native American believes. It was called the Ghost Dance and among other things it advocated that proper practice of the dance would reunite the living with the spirits of the dead and would bring spirits to fight on their behalf. It is reflective of the importance that is attached to spirits in Native American culture and tradition.

Spirit keeping is also a common facet among many other shamanic cultures and features prominently in Tungus cultures and its variants. The Tungus people are of Siberian origin and the near-death phenomenon similar to the experience Black Elk went through when he was nine is a prerequisite to becoming a Tungus Shaman.

Now, if Black Elk had been born in Siberia he would not only have been a medicine man but he would also have been recognized as a capable shaman and would have been accorded a position befitting a shaman in the community.

In these ancient cultures that adhere to time honored traditions, the shaman is also a healer (it is possible that there were early Siberian migrants to the Americas. The distance between Siberia and Alaska is only 55 miles. The territories are separated by a body of water known as the Bering Strait).

According to the near-death principle, once a shaman prospect has gone through the near-death experience he or she would not only be able to see spirits but he or she would also be able to communicate with them.

Similar dynamics also apply to the Tamang shamans (hill shamans) of Nepal and they too acquire the ability to see and speak to spirits. Hence, the ability to see or commune with spirits is an ability that is accepted in certain communities and societies.

These spirits also require sustenance and it is the duty of the shaman to provide the spirit with the type of sustenance that is deemed suitable and that would differ from community to community or from society to society. Likewise, it is the duty of the deceased’s next of kin or the keeper of the spirit to provide the spirit with suitable food.

Therefore, the notion of relatives and friends sharing a meal with a spirit is not at all far-fetched and to the contrary it is, depending on the culture, something of a norm.

It is also an accepted principle that the spirit after death needs to be coaxed into undertaking the journey that follows and the mourning period or the “keeping of the spirit” is a time during which relatives of the departed help the spirit to cross over.

Let me cite the practices of another ancient culture as an example. Let us briefly go to Leh and Ladakh in Western Tibet. Here the mourning period is forty-four days i.e. it takes forty-four days for the spirit of the departed to cross-over and during that time a priest is close at hand and he or she reads verses from the Tibetan Book of the Dead or the Bardo Thodol to help the spirit to cross-over.

According to the death rites of many of these ancient cultures, the period following death and prior to the crossing over is a perilous time for the spirit and it is confronted with a series of images conjured by the mind that are a result of its fears and inhibitions and therefore it needs the assistance of its family members to help it along the way.

It is slightly different from the Ghost Dance which according to my understanding is more akin to the summoning of the spirit and this normally applies to spirits of some fortitude or spirits that have been around for some time and it is more or less like the induced trance state. It is practiced to this very day.

The mourning period differs from one culture to another and from people to people but the one year period is similar to that of the East Indian culture where relatives of the dead are required to mourn the dead for a period of one-year and during the mourning period they are prohibited from taking part in any festivities. Therefore, we won’t be wrong in stating that the mourning period among the Lakota is strikingly similar to that of the East Indians.

Another amazing similarity is the feeding of the spirit. In the East Indian culture offerings of food are made at periodical intervals at an altar over the duration of a year. It includes offerings of vegetarian dishes and the favorite sweets of the deceased and relatives and friends are invited to be a part of the somber occasion.

Chapter III

The fourth sacred rite of the Lakota is the sun dance and once again it is reminiscent of the Tungus Shaman. The dance is conducted around a tree or a pole that symbolizes the tree. In Lakota cosmology, the tree represents the center of the universe.

It is possible to draw parallels between the tree in the Lakota sun dance and the shaman tree of the Tungus shamans. It is difficult to speculate if Black Elk ascended a shaman tree during his life-threatening illness or otherwise but it is an accepted principle among Tungus shamans that a shaman acquires his or her abilities to see and communicate with spirits after he or she ascends the shaman tree. The top of the tree or its highest tier according to Siberian folklore is occupied by Gods of the highest level.

Among Yakutian (Siberian) shamans, each shaman is allotted his or her own tree and the well-being of the shaman is dependent on the tree. Chopping down the tree spells death for the shaman. In some instances, dead shamans are entombed in the hollow of a tree and this it is where the shaman’s spirit resides i.e. it becomes the shaman’s spirit tree.

In Altai shamanic circles the tree is symbolic of the world’s center and the tree is the dwelling place of many magical animals and each of these animals have a specific function. Like spirit guides, they have the ability to foretell the future, determine destinies and act as celestial guardians.

Sitting perched on the upper boughs of this tree are two birds who call out the days of the living and who have the ability to see where the spirits of the dead will go following their demise. In the middle branches sit two silver clawed eagles that act as guardians of the living. These eagles also call out to lost heroes directing them as to the proper cause of action.

At the base of this tree there are two black dogs, with flashing eyes that gaze constantly at the underworld. Altai folklore also suggests that all trees have spirits for example when a hero in an epic poem leaves his son in the care of the spirits of the birch trees.

Trees are also worshiped in Mongolian shamanic circles. These trees are like normal trees i.e. they are not the dwelling places of spirits but by virtue of worshipping these trees one is blessed with good fortune and therefore it is possible to say that it is the spirit of the tree as opposed to the spirits of the heavenly deities that reside on the tree that bring about a turn of good fortune.

It is also possible to equate the tree with the Hungarian Tree of life and draw inferences from the legend of the sky-high tree. Interestingly enough the legend also mentions a horned buffalo. According to the legend the tree is divided into many tiers and the highest tier is occupied by the legendary bird-hawk, Turul, and other celestial and heavenly beings.

As a matter of interest it is import to realize that shamans are divide into white shamans and black shamans i.e. those that commune with white spirits and those that commune with dark spirits and as a result most shamans draw their energies from one source or another.

It is also further possible to surmise that the strength of the spirit that guides the shaman depends on the tier it occupies i.e. the higher the spirit is on the tree, the stronger its abilities and these are the spirits that guide warriors through the valley of dreams during vision quest or the seeking of visions.

The sun dance reaffirms the connection between spirits and nature. The dance is held every summer on the day of the full moon and is blessed by the radiance of Celeste. The festivities are accompanied by music and dance and various plain bands gather to perform during the dance. It is from all accounts a lively and entertaining occasion.

Dancers, pledge to make offerings of their flesh to strengthen the nation and to fulfill personal vows. The choice to participate is always at the discretion of the dancer and it is usually the result of receiving a sacred dream. It is also sometimes undertaken to seek the assistance of spiritual entities in healing a sick loved one.

Chapter IV

The fifth sacred rite of the Lakota is Hunkapi or the right to foster or forge new relationships and it solidifies existing bonds and paves the way for new alliances. It is reflective of the personal relationship that one shares with the center of the universe or the tree that symbolizes the center of the universe.

It can also be interpreted as the rite of procreation or a rite that facilitates the expansion of familial bonds which of course is essential to perpetuate the continuity of the people and to preserve the longevity of the nation.

The nation is strong for only as long as its people continue to foster and forge new relationships and persist with repairing any damage that may have resulted with the passage of time or from past indiscretions. It is also a means to address grievances and to set aside any past disputes and in certain cases to start anew.

The rite may also be a means to enhancing the bond one has with the totem pole (the totem pole may at times represent the sacred tree that is synonymous to the center of the universe).

A totem pole in short, is a sacred object that is relative or unique to a clan, a tribe or even a family and it is perceived to be a spirit-being that is sacred to a specific person or a group of people and it is in the interest of those that are connected to the totem pole to keep the spiritual relationship alive. In more contemporary terms the spirit-being that the totem pole represents is akin to a guardian angel.

The fifth rite may also equate to fostering better relations with one’s spirit guide. According to Native American legends and traditions there are many spirits that may act as guides for example animal spirits, elemental spirits and tree spirits. These spirits not only act as guides in the valley of dreams during vision quest but also as guardians and in certain cases healers.

Spirits in Native American culture and tradition are synonymous to deities in some other cultures and these spirits are the harbingers of good tidings and the bearers of good fortune.

These spirits are similar to deities in eastern cultures (many of these deities are peculiar to specific localities) and just as there are numerous deities, there are also numerous spirits, too many in fact to list down or compile.

It is a rite that is reflective and parabolic of cultures that are keen on fostering better relationships with all beings, regardless of whether these beings are spiritual or corporeal, and to some extent it is an admittance that we share this world with many other beings, some that may not be visible to the naked eye.

It would be a good idea to keep an open mind and to acknowledge the fact that spirits may not always equate to the lingering spirits of the dead and may equate or may be synonymous to the spiritual matter that forms the core of all things, both animate and inanimate.

The sixth rite of the Lakota is Isnati Awicalowanpi or the puberty ceremony. The ceremony takes place after a girl’s first menses, and it is held to ensure that the girl will grow up to have all the virtues of a Lakota woman and that she understand the meaning of her new role. It is also conducted to formally announce her eligibility as a potential wife and a mother.

There is an exact same ceremony that is held in the East Indian culture as soon as a young girl reaches puberty. It is viewed as an important event in the life of all young girls and celebrated accordingly.

The seventh rite is Tapa Wankayeyapi or throwing the ball. It is a game which represents the course of a man’s life. A young girl stands at the center and throws a ball upwards and to the four corners as others vie to catch it. The first person to catch the ball is considered to be more fortunate than the rest – the ball is symbolically equated to knowledge.

This rite acknowledges that all persons have a right to knowledge but they must be willing to work hard and compete to obtain it. Among other things, it instills a sense of fair competitiveness especially among young children.

Vision Quest

Vision quest or the seeking of visions is undertaken to seek random visions. In most instances the seeker is searching for an event that will unravel or manifest itself in the future and the event at the time it appears to the seeker may or may not make sense to him and the seeker may require the help of an elder or a medicine man or a shaman to help him interpret his vision. He may or may not be part of the vision.

Let’s compare these visions to visions of clairvoyance or precognition and let us try and identify the common factors and determine the factors that differentiate vision quest visions from visions of clairvoyance or pre-cognition.

Clairvoyance and pre-cognition are abilities to see into the future and from that aspect they are sometimes comparable to visions that appear during meditation but the subject does not have the ability to control the visions that appear in the form of a dream. The visions often appear in sudden flashes or bursts of images and disappear as quickly as they’d come leaving behind a lingering memory and days, months or years later when the event does unfold the subject is left with a sense of déjà vu.

This in simplistic terms is what clairvoyance or pre-cognition really is. It happens to most of us at some time or other and we are often left searching for answers and we often put it down to the unexplainable or divine intervention.

Those who know what these visions really are, these visions more often than not occur when the body is asleep, are deemed to have the gift of clairvoyance and pre-cognition and they use it for their own benefit (which is the way it should be) and some use it to help others.

Vision quest or the seeking of visions however is slightly different in that, it not only reveals future events but it is also reveals past events, i.e. a vision from the past, and this becomes of use when we are trying to come to terms with the present. There is a valid reason for most things and the answer sometimes lies in the past.

The images appear, for those who have experienced them; in full Technicolor i.e. they are identical or synonymous to actual images, sometimes with sound and at other times without. These images are very real and sometimes the dreamer or the seeker experiences an outflow or an outpour of emotions and it may be love, anger, hate, or any of the other normal emotions that we are all subjected to.

This outflow or outpour of emotions can leave a person sagged, sapped or drained until he or she learns to appreciate them for what they are i.e. they are merely intimations for future events or a blast from the past, maybe from a previous existence (regressive hypnosis or past life regression therapy proves that we can remember or recollect instances from our past lives).

Someone may well ask the question, what is the significance or relevance of going over something that has happened in the past? Well the simple answer is if we knew what happened in the past then we can make amends in the future. Past life regression is also used to remedy lingering illnesses like joint pains which according to same sources may not be the result of an injury sustained in this life but a result of an injury sustained in a past life that makes itself evident in the present life.

Vision quest or the seeking of visions takes the innate ability that most of us have to another level in that it tries to stimulate or induce these images or visions i.e. they do not occur naturally during sleep or meditation but are the result of subjecting oneself to a rigorous process.

It can be done in the manner which the Lakota do it though I must admit that going without water does make me slightly apprehensive and therefore it should only be done with the help and guidance of a holy man or someone who is well versed with the process.

The seeker pledges to stay on an isolated hill for one to four days with a blanket and a pipe, but without food and water to experience these visions. During this time he may seek the guidance of spirits to help him with his quest and therefore it is somewhat possible to surmise that guidance from spirits helps us channel our innate abilities. The smoking of the pipe may also stimulate the process.

Spirit Trees

The bond between a shaman and his or her spirit tree has been a long-established principle of shamanism and many cultures of antiquity adhere to the principle that the abilities of the shaman are very much dependent on the shaman’s spirit tree, to the extent that the metaphoric tree has taken on a life of its own and has become a central feature or facet of shamanism.

The shaman tree can be divided into two types. The first type or category of shaman trees are trees where spirits or spiritual entities reside. These trees have their origins in the realm of folklore and are often divided into different tiers. The strength of the spirit is dependent on the tier that the spirit occupies. Spirits that reside on higher tiers are stronger than those that occupy lower tiers. It is therefore possible, in this manner, to distinguish between inferior spirits and spirits of a higher capacity.

The second type of shamanic trees are trees that have a spirit i.e. these trees have a soul and it is the soul or the spirit of these trees that help and assist shamans during shamanic rites and rituals. The tree that is most commonly associated to having a spirit of its own is the birch tree and the use of birch trees, milk, white colors and white ribbons are prevalent in Altai shamanism. The color white symbolizes purity and this aspect of Altai Shamanism is also known as the milk faith.

In addition to that there is also a tree that is called the world tree which without doubt has its origins in popular myth and it is more commonly referred to as the eternal poplar. According to Altai shamanic principles, the roads to the lower and higher levels of the world run along the trunk(s) of this tree and the tree unites the various levels of the world.

In ancient Turkic-Mongolian circles, these trees along with the sun, moon and the stars were venerated as deities and the bond between the shaman and the spirit tree is strengthened by repeatedly performing shamanic rituals in honor of these tress.

The worship of trees was also rampant among animistic cultures. It is a common precept among followers of the animistic faith that all things for example trees, mountains, rivers etc. have spirits. Tatar oral narratives handed down for generations give us an example of the spirit of the Alps. He is, according to legend, strong, swift, tall and proud.

It is usual among animistic cultures to characterize and attached tangible attributes to natural objects. In his book Religion in Primitive Cultures, Edward Taylor defines animism as the doctrine of Spiritual Beings.

In addition to birch trees, other trees like oak, cedar and ash were also worshiped in ancient Europe and it was widespread in pre-Christian Europe. This type of worship also extended to plants especially plants with healing properties and it’s not unheard off or uncommon to assign plants especially those with medicinal value some sort of divine status.

Animism, as a religion, gives all things, animate and inanimate, character, and that includes attributing salient or prominent features like gender, strength and height to name a few, to the object(s) of worship and the characteristics that are attributed to the object(s) are a general perception of what the object(s) represent and this representation becomes the soul or the spirit of the object.

The spirit of a tree for example may be described as strong and uncompromising if the tree remains and has remained stolid for years. The spirit of the tree may be described as tainted if the bark is covered with blight and it is beset with insect infestation. Similarly, a withering tree that has lost its leaf cover may be described as a dying tree and the spirit of the tree can be described as being on the verge of being set free to either become an acorn that will grow into a new tree or achieve salvation or liberation.

Likewise, a monolith that has stood the test of time may be ascribed with attributes of being strong and enduring and may even be worshiped in some circles as bestowing providence and good luck.

It is very similar to the ancient Persian belief that all things have at their core a soul. It is practically impossible of course to determine if a tree actually does have a soul or otherwise but according to most sources, the worship of trees can bring about a turn of good fortunate unless of course the spirit of the tree is tainted or polluted.

Copyright © 2018 by Dyarne Ward

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Mens Rea V – Negligence (II) – The Neighborhood Principle (I)

The neighborhood principle was established by Lord Atkins in the case of Donoghue v Stevenson (1932). Under normal circumstances for a consumer to claim damages for the purchase of a defective item, there has to be a valid contract in place.

There are five elements to a contract, offer, acceptance, consideration, intention, and form. Offer is the act of making an offer to sell or displaying an item for sale. Acceptance is the act of accepting the item or buying or purchasing the item that is on display and consideration is paying the offeror (the person who is selling the item) for the purchase of the item.

Consideration has to be in monies or monies worth. In addition to that, there is also a general undertaking that is given by the offeror, at the time of the purchase, to the offeree (the person who is purchasing the item) that the item is of merchantable quality or fit for its purpose i.e. the purpose for which it was purchased or intended.

Intention simply means that there is an intention or it is the intention of both parties (the offeror and the offeree) to enter into or to create a legal and binding agreement and this at times may be inferred. Form is the form of the contract i.e. it may be either written or oral. (we’ll look into contracts and the elements in a contract further when we do contracts).

Let’s look at a present-day example: – A man buys a mobile phone for his daughter as a Christmas present. He gift wraps the device and puts it under the Christmas tree and on Christmas morning, his daughter unpacks the gift and is delighted to find the phone. She turns on the phone, but it doesn’t turn on. She turns to her father for help who in turn takes the phone back to either the retailer or to a manufacturers’ outlet to have it replaced.

At the retailer or the manufacturers’ outlet the lady at the counter politely asks him for the proof of purchase which in most cases, especially in instances of small portable items is a receipt. The man hands her the receipt and she takes the defective phone back and hands him a new phone.

The receipt is proof of purchase and it normally states the date the item was purchased on, the make and model of the item, the quantity and the amount that was paid as consideration for the item. In some cases or instances the details of the sales person who assisted with the purchase is also on the receipt or the proof of purchase. It is in essence a valid contact.

Now let’s say for example that the girl is so taken in by her present, that she runs off to show it to her friend at the park, without turning it on and in the excitement that follows forgets all about the phone and leaves it on a park bench and rushes home for Christmas breakfast.

The phone is then discovered by Mr. Smith, who is out walking his dog, Muffin. Mr. Smith tries to turn the phone on and finds that the phone is defective. He determines the make and model of the phone from its appearance and he takes the phone to the manufacturers’ outlet and demands that the polite lady at the counter replace his faulty phone. The lady in turn asks Mr. Smith for the receipt or the proof of purchase and she soon realizes that Mr. Smith doesn’t have it on him. She then politely tells Mr. Smith that she’ll be happy to replace the phone as soon as Mr. Smith returns with the receipt. A disgruntled Mr. Smith has no choice but to leave the store.

The above example is one of the reasons why there is sometimes an insistence on establishing the contractual element or a contractual relationship, in cases of defective items, i.e. to prevent fraudulent claims that may result from an unexpected stroke of good fortune or from theft.

It is however important that we realize that thus far no illness or injury has resulted from the use of the defective item. The situation might be different if Mr. Smith in good faith turns the phone on, to determine the identity of the owner and it explodes in his hand because of an inherent defect and Mr. Smith is injured as a result of the explosion. While there is no contract and Mr. Smith cannot commence an action in contract, he may have an action in Tort.

In Langridge v Levy (1837). A man sold a gun which he knew to be dangerous to the purchaser who bought it for his son. The gun exploded in his son’s hands and he was held to have a right of action in tort against the vendor, despite the fact that the person who suffered the injury was not a party to the contract.

Let’s compare the decision in Langridge v Levy (1837) with the outcome in another case, Winterbottom v Wright (1842). In the latter case, a carriage, that the defendant was contracted to maintain broke down and the plaintiff was injured. The plaintiff brought an action against the defendant, for injuries incurred, but his action was dismissed because he was not privy (party) to the contract.

We can distinguish between the facts of Langridge v Levy (1837) and Winterbottom v Wright (1842) in that, in the latter case, both the plaintiff and the defendant were contracted to the Postmaster’s officer. The defendant was contracted to maintain the carriages of the Postmaster General and the plaintiff was either contracted or employed to drive the carriages and if an action was to be brought, it should have been brought against the employer for failing to maintain the carriages in good condition.

Copyright © 2018 by Dyarne Ward

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Mens Rea IV – Negligence (I) (Blyth v Birmingham Waterworks Co. (1856) )

The next type, class or category of Mens Rea is negligence. Negligence is defined as a breach of a legal duty to take care which results in damages to the claimant.

In Blyth v Birmingham Waterworks Co. (1856) (Court of Exchequer) * – The defendants were a body incorporated by statute to supply the town of Birmingham with water. According to s 84 the company should at the time of laying down any main pipe or any other main pipe on the street, fix at the time of laying down of the pipe a proper and sufficient fire-plug (a hydrant for a fire hose) in each street.

According to s 87, pipes were to be eighteen inches beneath the surface of the soil and according to s 89 the mains were at all times to be kept charged with water. The defendants derived no profit from the maintenance of the plugs distinct from the general profits of the whole business, but such maintenance was one of the conditions under which they were permitted to exercise the privileges given or granted by the Act.

On February 24, a large quantity of water escaped from the neck of the main and forced its way from the ground into the plaintiff’s house. The plaintiff sued for damages. The case was tried before a jury and the County Court Judge found in favor of the plaintiff. The defendants appealed.

Baron Anderson – “The defendants might have been liable for negligence, if, unintentionally, they omitted to do that which a reasonable person would have done, or did that which a person taking reasonable precautions would not have done” – verdict to be entered for the defendant.

Negligence is the act of doing something, which under the circumstances, a reasonable or a prudent man, guided by the considerations that normally regulate the conduct of human affairs, would not do or the act of not doing something, which under the circumstances, a reasonable and a prudent man, guided by the considerations that normally regulate the conduct of human affairs, would do.

Therefore, there are two types of negligent acts: –

(i) The act of doing something which a reasonable and prudent man would not do and

(ii) the act of refraining or abstaining or not doing something which a reasonable and prudent man would do (omission). Omission in most instances is a failure to do that which is required by law (either statutory or common law).

Acts of omission are more common when there is a parent-child relationship. For example, as in the case of R v Senior (1899). The defendant belonged to a religious sect called the Peculiar People who objected on religious grounds to obtaining any form of medical advice or treatment. The defendant’s son died as a result. The defendant was charged with manslaughter founded upon s.1 of the Prevention of Cruelty to Children Act, 1894.

“If any person over the age of sixteen years, who has the custody, charge or care, of any child under the age of sixteen years, willfully assaults, illtreats, neglects, abandons, or exposes, such child, or causes or procures such child to be assaulted, illtreated, neglected, abandoned, or exposed, in a manner likely to cause such child unnecessary suffering, or injury to its health (including injury to or loss of sight, or hearing, or limb, or organ of the body, and any mental derangement), that person shall be guilty of a misdemeanor”.

In order to obtain a conviction, the jury must be satisfied that: –

(i) the death of the child had been caused or accelerated by the want of medical assistance,

(ii) that medical aid and medicine were such essential things for the child, that reasonably careful parents in general would have provided them and

(iii) the prisoner’s means would have enabled him to do so, without an expenditure such as could not be reasonably expected from him

– The defendant was convicted.

In more recent times in R v Dytham (1979) a police officer was charged with the offence of misconduct (dereliction of duty) because he stood ideally by and watched a bouncer kick a man to death. The defendant argued that the offence of misconduct (dereliction of duty) could not be committed by omission.

It was held that, in the above instance, the officer was indeed guilty of misconduct (dereliction of duty). (However, this has to be read in light of Michael v Chief Constable of South Wales (2015) where it was held that the police did not owe a victim a duty of care in negligence to protect him or her from harm caused by a third party).

The test of the reasonable and prudent man is also known as the objective test or the reasonable man’s test. It is a standard that is observed in cases of negligence.

The concept of the reasonable and prudent man has been around for some time and it is by no means new or novel. In Jones v Boyce (1816) for example, the plaintiff was a passenger in the defendant’s coach. While they were travelling, the reins broke and it appeared that the coach was about to crash. The defendant fearing for his life jumped out of the coach and was injured as a result.

As in turned out, the coach did not crash as expected but regardless the plaintiff sued for the injury he had incurred. The defendant argued that the plaintiff had been contributorily negligent. It was held that because the defendant’s actions were those of a reasonable and prudent man, he was not contributorily negligent.

And just who exactly is the reasonable and prudent man? The reasonable and prudent man in negligence is the man on the Clapham Omnibus – Hall v Brooklands Auto Racing Club (1933) i.e. any person who does not belong to either extreme of the scale but rather a person who is subjected to the stresses and pressures most people in a community or a society are subjected to.

In Hall v Brooklands Auto Racing Club (1933) – the defendants were racetrack owners who’d erected railings around the track for spectators to stand behind and watch the races. Two spectators stood in front of the railings close to a curb and as a result were killed in an accident involving two competing cars. (It was held that if a person(s) willingly puts himself or herself in a position where he or she is likely to incur some form of injury or other, that the onus (burden) is on that person(s) and the injured person(s) is not able to bring an action against someone else for example, as in this case, the owners or the proprietors of the racetrack. This is in accordance with the principle of volentia non fit injuria i.e. “to a willing person, injury is not done”).

At this stage however we are only concerned with identifying the two limbs of negligence and establishing the identity of the reasonable man. Volentia non fit injuria is a principle that we’ll be looking into further at a later date.

Another interpretation of the reasonable man is given in Davis Contractors v Fareham Urban District Council (1956). Lord Radcliffe referred to the reasonable man “as the anthropomorphic conception of justice”.

According to the facts, Davis Contractors were contracted to build houses for Fareham Urban District Council. The Contactors (Davis Contractors) agreed to build a specific number of houses at a fixed price, within a specified time-frame, and were paid accordingly.

The houses took longer to complete and the costs were much more than expected. Davis contractors argued for more money on the grounds that the contract had been frustrated and that they should be paid reasonable value for the services that they had rendered. It was held that the contract was not frustrated.

In order to be successful in a negligence claim, the plaintiff must be able to establish or satisfy the 4 following ingredients or components: –

(I) Duty

(ii) Breach

(iii) Causation

(iv) Damages

In Blyth v Birmingham Waterworks Co. (1856) Birmingham Waterworks owed, by virtue of being a body incorporated by statute, the plaintiff a duty of care to take reasonable care and precaution while carrying out its duties.

However, there was nothing to indicate that the defendants had not carried out their duties diligently. The apparatus had worked well for 25 years and the defendants’ engineer had stated that the accident might have been caused by severe frost. One of the severest frosts on record set in on the 15th of January, 1855, and continued until after the accident in question.

Despite owing a duty of care, the defendants would be deemed to have taken reasonable care if the apparatus was constructed in a manner that was prevalent at the time, and in accordance with the standards and procedures that were available at the time. The fact that there was a severe frost was not something that the defendants could have foreseen or something that the defendants could reasonably have contemplated.

* The Court of Exchequer was an ancient court set up by William the Conqueror (William I). It was initially able to administer both equitable remedies and common law remedies but its equitable jurisdiction was taken away in 1842 and transferred to the Court of Chancery.

Copyright © 2018 by Dyarne Ward

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Mens Rea III – Recklessness

The second classification of mens rea is recklessness i.e. where a defendant commits an act without giving further thought to his or her actions. The law on recklessness is divided into the law prior to R v Caldwell (1982) and the law post R v Caldwell (1982).

Prior to Caldwell the only type of recklessness that existed was subjective recklessness as per the decision in R v Cunningham (195I). In Cunningham, the appellant ripped a gas meter from a wall in an attempt to steal money that was deposited in a coin box attached to the meter and as a result gas seeped through fissures in the wall and escaped to the neighboring property where Mrs. Wade (Sarah) was sleeping.

“The appellant was convicted upon an indictment framed under s 23 of the Offences against the person Act (1861) * which charged that he unlawfully and maliciously caused to be taken by Sarah Wade a certain noxious thing, namely, coal gas, so as thereby to endanger the life of the said Sarah Wade”

In any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but as requiring either

(1) An actual intention to do the particular kind of harm that in fact was

done; or

(2) recklessness as to whether such harm should occur or not. It is neither limited to nor does it indeed require any ill will towards the person injured. The Court of Appeal reversed the conviction.

In R v Caldwell (1982) the accused, an employee of a hotel who had some grievances against the owners, got very drunk and set fire to the property. There were 10 guests in the hotel at the time. Fortunately, the fire was discovered in time and no harm had befallen any of the guests.

Caldwell was convicted upon two counts of arson. The second count was laid under section 1 (1) of the Criminal Damage Act 1971 – arson destroying property belonging to another. The first and more serious count was laid under section 1 (2) of the 1971 act – arson endangering life. The accused appealed,

The House of Lords upheld the conviction and defined recklessness as follows: –

(1) A person is guilty of recklessness when he does an act which in fact creates a risk that property will be destroyed or damaged and

(2) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognized that there was some risk involved and has nonetheless gone on to commit the act.

The Caldwell test sought to remedy the test in Cunningham which was deemed too narrow and restricted the test to the defendant’s state of mind thereby allowing too many defendants to escape liability.

In R v Stephenson (1979) the defendant was a homeless schizophrenic who had sought refuge in a haystack. He lit a fire to keep himself warm and unfortunately in so doing set fire to the whole haystack. He was convicted in the first instance by a jury but the conviction was quashed by the Court of Appeal on the grounds that the test that should have been applied was the subjective test.

In Elliot v C (1983) – a 14-year-old girl of lower intelligence had started a fire. She entered a shed and found a bottle of spirit. She poured the contents on the floor and threw two lighted matchsticks at it. The second matchstick started a fire and burnt the shed down. When questioned, she said she had no idea why she had started the fire and that she simply felt like it.

At her trial she was charged with arson but she was acquitted. The judges applied the Caldwell test and said that the defendant could only have acted recklessly if she was able to appreciate the risk or the risk would have been obvious if she had given the matter some thought.

The prosecution appealed the case on a point of law. The appeal was allowed …. “if the risk is one which would have been obvious to a reasonably prudent person, once it has been proved that the particular defendant gave no thought to the possibility of there being such a risk, it is not a defense that because of limited intelligence or exhaustion she would not have appreciated the risk even if she had thought about it.”

In R v Gemmell and Richards (2003) – two boys aged 11 and 12 respectively, went camping without their parents’ permission. They found themselves behind a Co-op shop and discovered bundles of newspaper stacked up nearby. They opened the newspapers to read and later lit up some of the newspaper. They then threw some of the lit paper under a large plastic wheelie-bin and left the yard without putting out the fire. The wheelie-bin caught fire and spread to another bin, a shop and adjoining buildings causing damages worth £1 million.

The defendants were charged with arson contrary to s 1 (1) and 1 (3) **** of the Criminal Damage Act 1971. The defendants were convicted and the Court of Appeal upheld the conviction because it felt that it was bound by the decision in Caldwell.

The House of Lords quashed the appellants’ convictions – “Can a defendant properly be convicted under section 1 of the Criminal Damage Act 1971 on the basis that he was reckless as to whether property was destroyed or damaged when he gave no thought to the risk but, by reason of his age and/or personal characteristics the risk would not have been obvious to him, even if he had thought about it?”.

“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; and it is, in the circumstances known to him, unreasonable to take the risk.” – Lord Bingham.

* s23 of the Offences against the Person Act (1861) – Maliciously administering poison, etc., so as to endanger life or inflict grievous bodily harm – “Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony, and being convicted thereof shall be liable . . . to be kept in penal servitude for any term not exceeding ten years . . .”

Criminal Damage Act 1971 Destroying or damaging property

** (1) (1) A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.

*** (1) (2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another –

(a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and

(b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered; shall be guilty of an offence.

**** (1) (3) An offence committed under this section by destroying or damaging property by fire shall be charged as arson.

Copyright © 2018 by Dyarne Ward

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Constitutional Conventions

There are generally two types of constitutions, written and unwritten. The American constitution for example is a written constitution as opposed to the British constitution which is an unwritten constitution. Most constitutions today however are written.

Unwritten constitutions can be described as constitutions that have developed organically over time and as a result these constitutions not only operate on written rules but also on a set of unwritten rules known as conventions which are established through a process of un-broken practices.

Conventions are best described as informal rules that help the mechanics of governance. Sir Ivor Jennings described conventions as the flesh that clothe the dry bones of the law. He further defined conventions as rules for determining the mode in which the discretionary powers of the Crown ought to be exercised and says that “without conventions legislation and case law are quite unintelligible”.

Conventions can also be described as non-legal rules that despite having a binding effect, do not have the force of laws and in case of a conflict between the two i.e. laws and conventions, the former prevails. A salient difference between conventions and laws is that laws are enforceable by the courts whereas conventions aren’t.

In the Crossman Diaries Case 1976, a cabinet minister, Richard Crossman, who served in Harold Wilson’s Labor Government kept detailed diaries of the inner workings of government and following his death in 1974, his estate wished to honor his instructions by publishing his diaries.

The Attorney General tried to enforce the convention of collective cabinet responsibility, to prevent the diaries from being published, but was unsuccessful (the Attorney General could have also invoked the Official Secrets Act 1911 which he chose not to). The Crossman diaries were eventually published in three separate volumes.

An example of a convention that continues to present day is the convention that a sovereign does not refuse to assent to a bill that has passed both houses of parliament (Royal Assent). Though a sovereign can refuse, the last sovereign to refuse her assent was Queen Anne (Scottish Militia Bill 1707); in practice the sovereign does not.

Other examples of constitutional conventions include the practice that ministers resign office when they cease to command the confidence of the House of Commons and when the House of Lords acts as a court of appeal, peers who are not law lords do not take part in proceedings. Cabinet ministers must also publicly support all government decisions even if they privately disagree with them as per the convention of collective cabinet responsibility.

Conventions can be created at any time. They become established when they are repeatedly adhered to or when they are observed over a period of time which implies that constitutional conventions become established with the passage of time and a general willingness to observe them or to be bound by them.

Over the years there have been calls to codify constitutional conventions or to give them the effect or the force of an act of parliament but that would erode the element of flexibility that is attached to conventions.

For example, the convention that a sovereign does not refuse to assent to a bill that has passed both houses of parliament if it were codified or enacted as an act of parliament will prohibit the sovereign from refusing his or her assent to all bills and this may become crucial when there is legislation that is enacted that may be deemed onerous or unfair, for example retrospective legislation (legislation that operates on matters that took place before its enactment).

In Burmah Oil Company Ltd. v. Lord Advocate (1964) four oil companies with registered offices in Glasgow, Scotland, Burmah Oil Company (Burmah Trading), Burmah Oil Company (Burmah Concessions), Burmah Oil Company (Overseas) and Burmah Oil Company (Pipelines) sought compensation as a result of damages incurred during the Second World War, under the Crown Suits Act 1857.

The House of Lords ruled by a majority of 3 – 2 that the damage that was incurred was similar to the compulsory requisitioning of property, which was done for the good of the public and for that reason the proprietor(s) should be compensated from public funds.

Subsequently parliament passed the War Damages Act 1965 which exempted the crown from being liable for destruction of property in times of war and the act was to have retrospective effect thereby preventing the Crown from being liable for acts done in contemplation of war.

The bill could only become an Act of Parliament if it had the assent of the sovereign who by convention is required to give his or her assent but should the sovereign refuse than the bill would not become an Act of Parliament and therefore it would be fair to say that conventions, to some degree, help heads of states protect individual rights, freedoms and liberties.

“Conventions have many advantages over legislation. It enables a distinction to be drawn between what is acceptable in general circumstances and what may be necessary in exceptional circumstances. The legislation can regulate the exceptional circumstances, while convention can deal with the everyday, in a way that can adapt flexibly” – House of Commons & House of Lords, Joint Committee on Constitutional Conventions.

Copyright © 2018 by Dyarne Ward

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Mens Rea II – Intent

Mens Rea is divided into various classes. The first type of Mens Rea and the easiest to understand or comprehend is intent. Intention is affirmed when the defendant wants something to happen as a result of his or her actions. Intention itself can be divided into two categories – direct and oblique intent.

Direct intent is relatively straightforward and easy enough to discern or establish. For example the defendant wants to kill a person and in furtherance of his or her thought, he or she goes to a shop and purchases a knife and having bought the knife, he or she then stabs his or her victim with the knife, knowing that his or her actions will result in the death of the victim.

Similarly the defendant goes to a gunsmith to purchase a gun. He or she acquires the gun and the bullets and at a chosen time and at an appointed location points the gun at the victim and pulls the trigger, once again with the knowledge that his or her actions will result in the death of the victim.

Let us look at another example. The defendant invites the victim over for dinner and prepares a meal that is laced with cyanide. He or she allows the victim to consume the meal with the full knowledge that the victim will die as a result of consuming the meal.

In all the three examples given above the intention of the defendant is clear, in that, the act is done to precipitate the death of the victim. In other words the act is done with malice aforethought and the act is done with the defendant’s mental faculties intact or the defendant is fully aware that his or her actions will result in either death or grievous bodily harm to the victim.

Malice afterthought simply means that the act is done with wanton, often utter, disregard for human life or a degree of callousness that completely disregards the consequences of the act.

Malice afterthought however does not in any way imply hate, rage or any form of ill-will towards the victim for example when the act of killing is done for profit.

A simple example would be large sum insurance pay-outs. There might not be any dislike for the victim but in order for the defendant to benefit from the policy the victim has to be dead and therefore the act of killing is committed or perpetrated.

Oblique intent occurs when the defendant claims that the consequences of his or her actions were different from what he or she intended for example when an act is done to scare or to intimidate the victim but it leads to or results in death.

In Hyam v DPP (1974), Mrs. Hyam poured petrol (a flammable liquid) in the letterbox of her lover’s (Mr. Jones) new partner (Mrs. Booth) which she ignited by using a newspaper and a match to scare Mrs. Booth. The consequences of her actions were that Mrs. Booth’s children died as a result of asphyxia.

The house by a majority of three to two held that “No distinction is to be drawn in English law between the state of mind of one who does an act because he desires it to produce a particular evil consequence, and the state of mind of one who does the act knowing full well that it is likely to produce that consequence although it may not be the object he was seeking to achieve by doing the act” – Lord Diplock.

This area of the law was first recognized or realized in the case of DPP v Smith (1961) – Smith had stolen some goods and loaded it to the back of his car. A policeman ordered him to stop but he drove off instead and the policeman jumped on to the back of the car in order to stop him. The policeman was subsequently throw off from the back of the vehicle, into the path of other oncoming vehicles and died as a result.

The House of Lords unanimously upheld the conviction. In doing what he (Smith) did, he must, as a reasonable man have contemplated that serious harm was likely to occur. Hence he is guilty of murder.

The test in DPP v Smith (1961) is as follows:- If the jury is satisfied that he (Smith) must as a reasonable man have contemplated that grievous bodily harm (GBH) was likely to have resulted to the policeman from his actions and such harm did in actual fact occur, than the accused is guilty of murder. On the other hand if the jury is satisfied that he (Smith) could not have contemplated that the policeman would incur grievous bodily harm (GBH) as a result of his actions then the verdict would be guilty of manslaughter.

This is also sometimes known as foresight of consequence i.e. could the defendant have reasonably contemplated the consequences of his actions?

The test in DPP v Smith (1961) was supplanted by Section 8 of the Criminal Justice Act (1967) – Proof of criminal intent.

A court or jury, in determining whether a person has committed an offence –

(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.

In Maloney (1985) the appellant and his stepfather had been drinking heavily during a family party. Subsequently, after the other family members had retired for the night, the pair participated in a gun loading contest which the appellant won. The stepfather then challenged the appellant to pull the trigger, which he did. The gun went off and he killed his stepfather. The appellant argued that he loved and adored his stepfather.

Similarly in Hancock and Shankland (1986) two striking miners dropped a concrete block and a concrete post from a motorway bridge which struck a taxi taking a working miner to work, thereby killing the taxi driver. The appellants argued that they merely intended to stop the work from progressing or continuing.

In both cases the trial judges directed the jury in terms of the second meaning of intention (oblique intention), as given in Hyam V DPP (1974), and in both cases the appellants were convicted by the jury for murder.

Copyright © 2018 by Dyarne Ward

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