How far is it true to say that the seriousness of an offence depends on the amount of harm caused or the defendant's state of mind? This title opens up a "Pandora's box" of elements in criminal law. Firstly, this title suggests that the seriousness of an offence is proportionate to the amount of harm caused or the defendant's state of mind. This is not always true; in the case of 'Brown'1, the House of Lords were contemplating whether a criminal assault occurs if the person with inflicted injuries has consented to that assault, thus resulting in actual, but not necessarily serious bodily harm.
It was held that a criminal assault could occur, and the group of sado-masochists were charged under ss. 20 or 47 of the Offences Against the Persons Act, 1861. Although people can self-harm and this would commit no offence, one 'could not consent to an injury by another causing any visible physical harm'2 (unless in particular circumstances of social utility, such as competitive sports or surgery).
Therefore, it is not always true that the amount of harm caused or the state of mind of the defendant corresponds to the level of seriousness of the offence; one would assume that the more hurtful the harm or the more malicious the aforethought, the more serious the offence. Furthermore, the seriousness of an offence cannot always be measured. There is a wide scope of types of offences: physical, psychological, property rights, sensitivities,-and it is not always easy to have a uniform and general judgement level of seriousness of an offence.
As to the matter of amount of harm caused, there too is a diverse range of harm: murder, manslaughter, grievous bodily harm, assault, rape, and so forth. This problem is also present in regards to the state of the defendant's mind, whether it be omission, deception, malicious aforethought, intent and so on. But the level of seriousness of an offence does not have to just rest at either amount of harm or the defendant's state of mind, it can involve both, and yet still not affect the seriousness of the offences.
This essay will explore the different types of harm caused and the various states of a defendant's mind, and then whether either reflects the level of seriousness of the offences caused and whether one causes a higher level than the other. The issue of the amount of harm in regards to the gravity of an offence caused implies that one is looking towards action or conduct of a crime. This is known as the actus reus, whereby any crime may require physical conduct or an action causing a consequence as an element of actus reus. However, a failure to act or an omission to act can also constitute to an actus reus.
Hence, if a requisite external conduct is present, an actus reus is established. There are several bases of the actus reus. One of these is an act, and depending on the offence, different acts are requisite. Thus, with the offence of rape, an act of unconsented sexual intercourse would be necessary. Omissions are another basis of actus reus, but this omission to act is a 'less common basis of criminal liability than a positive act'3. Harm can still be caused by a negative action/failure to act. This can even be possible in a duty to act emerging from a contract, where the non-action would be probable in endangering others' lives.
A duty to act can still arise even though persons are not party to the contract, as in 'Pittwood'4. Here, a level-crossing keeper failed to close the level-crossing gates when a train was approaching, and as a result, a man was killed on the crossing, and the gate-keeper was found to have breached his employment contract. The judge, Wright J, held that a person may sustain criminal liability from the failure to perform a contractual duty, and so the gate-keeper was convicted of manslaughter because although obligations of a contract were owed to the railway company, there was still a duty to the road-users.
Where a person holds a public office, there is a duty to care for others, if the position requires him to do so. Therefore, in 'Curtis'5, a relieving officer of a local authority failed to provide medical assistance for a homeless person, and for this, he was made liable for manslaughter. Within the family relationship, a parent or guardian is under a duty to save his young child from physical harm, and likewise, a child over the criminal responsibility age of 10 would owe a duty to his parents, as would a husband and wife to each other.
A further category of duty arising is one where a person freely offers to take care of another who is unable to look after themselves. In the case of 'Nicholls'6, a woman received her young grandchild into her home after her daughter's death. She was indicted for manslaughter by neglect, and Brett J adopted the approach that if a person undertakes a person helpless of infancy, mental illness or other infirmities, then they are bound to execute that responsibility, and in allowing them to die, is guilty of manslaughter.
'Stone and Dobinson', establishes that a voluntary undertaking of care can be implied from the accused's general conduct towards the victim of his neglect, and thus a duty will arise7. So even a helpless person can have a duty, if initially in a relationship, the victim was able to look after himself and also the helpless, and consequently becomes helpless himself to the extent that he is dependent on the helpless. If there is evidence that the helper becomes an infirm, then the person initially being cared for has a legal duty to summon help or care for them themselves.
Occasionally, an offence only requires the occurrence of an event, in which the accused is involved, so no act or omission is needed. Simple events sufficient to establish an offence are statutory, for example, it is an offence to be intoxicated with drugs or alcohol and drive, under s. 5 of the Road Traffic Act 1972. Accordingly, the harm caused does not always have to be an action, it can be a non-action. All of the examples in the categories given have involved death, so there has been great harm caused, but made worse because there was a duty imposed, which was breached.
Section 18 of the Offences against the Persons Act, 1861 entails the defendant causing grievous bodily harm, and this action, though not particularly harmful, can amount to quite a bit of severity, as there is a breach in statute. This is similar with section 15 of the Theft Act of 1968, whereby if one obtains property by deception, there is no physical or major harm inflicted, however, the statutory breach illustrates the serious nature of the offence. However, a major condition of the actus reus is that there is no criminal liability unless the whole actus reus is proved.
In the case of 'White'8, the accused, intending to kill his mother, put potassium cyanide into her drink. Subsequently, she was found dead, with the glass partially full, yet medical evidence proved that she had died from a heart attack, not the poisoned drink because she had not consumed enough of the poison. Though the son was convicted of attempted murder, he was acquitted of murder, because although he had intended to kill her, it was not his conduct which did kill her, hence, an element of the actus reus of murder was missing.
Despite this, the actus reus of an offence whether constituted by an act, omission or event, can not render a man criminally liable unless the offence was accompanied by relevant mens rea. The key principle of criminal law is embodied through the maxim actus non facit reum, nisi mens sit rea: an act does not make a person legally guilty unless the mind is legally blameworthy. This, however, does not always apply; the principle of mens rea is not always required for criminal liability.
If in the event, the accused satisfies the requirements of the actus reus of an offence, main question is whether the accused had the necessary mens rea, which could be denied on the grounds of accident, ignorance or mistake. In regards to the principle of accident, this is when the elements of actus reus of the crime charged has been satisfied, but accused did not plan to execute the prohibited result; he had no intention of doing so. Whilst the defendant's state of mind would not have had the intention to commit a crime, an offence would nonetheless still have been committed, and therefore, it could still be quite serious.
If a man was aiming to shoot a fox, however, due to a shaky hand and the strong winds blowing against him, he shot off target and killed a boy running about nearby, it would have been an accident, as the man was not intending to kill the boy, but this would still amount to a very grave offence of manslaughter. It could be argued that mens rea did exist; that he intended to kill, but just unfortunately did not kill what he intended, and the condition for actus reus of manslaughter would be satisfied as a killing has occurred.
As to the accused's ignorance, if it is of fact or of law, the accused is prevented from being criminally liable if it concludes with him lacking the intention, subjective recklessness, knowledge or other subjective mental elements, whether expressly or impliedly demanded by the offence charged. This can prove to be successful, as in 'Hibbert'9, where a man was charged under section 55 of the Offences against the Persons Act10.
Whosoever unlawfully take… any unmarried girl…under 16, out of the possession and against the will of her father or mother, or other person having lawful care or charge of her… be guilty of misdemeanour'. In this case, the accused met a 14 year old girl in the street, took her away and seduced her, leaving her later where he found her. The girl was in the custody of her father, and since there was no evidence that the accused knew this, the jury of this case decided to acquit him. Thus, in this case, it does not appear as though this incident was deemed as that serious because the accused was successfully able to use the defence of ignorance.