Actus Reus In Recklessness And Common Assault Law Essay - Free Essay Example

Sample details Pages: 10 Words: 2868 Downloads: 4 Date added: 2017/06/26 Category Law Essay Type Narrative essay Did you like this example? Maxim actus non facit reum nisi mens sit rea means that the guilty act on its own will not make a person criminally liable unless it was done with a guilty state of mind. The majority of crimes are brought about by a mixture of actions and are referred to as the guilty acts these represent the physical elements of a crime (actus reus).The mental elements are the thoughts or guilty state of mind (mens rea). If actus reus and mens rea are known and there is no valid defence, the defendant will be found guilty. Don’t waste time! Our writers will create an original "Actus Reus In Recklessness And Common Assault Law Essay" essay for you Create order It is the task of the prosecution to demonstrate together the actus reus and the mens rea of the offence beyond a reasonable doubt to the agreement of the judge and jury. If the proof is not found then the defendant will be acquitted. The actus reus covers all the exterior elements of an offence and consists of conduct, circumstances, and consequences. These are divided into two categories: Conduct crimes and Result crimes Conduct crimes consist of conduct and circumstance and are those in which the actus reus is concerned with prohibited behaviour in spite of its consequences, an example of this would be to drive when you have been disqualified. Result crimes are those where the guilty act requires proof that the conduct caused the outlawed consequence, for example, the actus reus of criminal damage is that the property owned by another person is damaged, and another example is the act of killing someone or committing murder. As result crimes are concerned with causing t he consequences the prosecution must show that it was the defendants behaviour that caused the result or circumstances to occur, they have to provide a clear, unbroken causal link. Causation requires a two stage test: Factual causation, the defendants act must be a sine qua non of the prohibited consequence. This simply means that the consequence would not have occurred without the defendants actions. R v.White (1910) 2 KB 124(CA) this case deals with but for test. The test establishes multiple factual causes of death. Legal causation can be established by showing that defendants act was an operating and substantial cause of death. It may not be the sole or main cause but it must make a significant contribution. R v. Cheshire (1991) 1WLR 844 (CA), R v. Pagett (1983) 76 Cr App R 279 (CA). R v. Smith (1959) Legal causation also deals with fault, assigning blame, and responsibility. The defendant will be liable for the all foreseeable consequences or results of the ir actions. R v. Roberts (1972) 56 Cr App R 95 (CA), R v. Marjoram (1999) (CA). There is no liability in criminal law for omissions unless that failure to act was whilst you are under a duty to act. The duty to act can arise in several ways: Duty arising from statute for example s.170 (4) of the Road Traffic Act 1998 places a duty on the driver involved in an accident to report it to the police or provide details to of the other people involved. Contractual duty, if someone fails to so something under a legally binding contract that they are contracted to do they may be criminally liable if any harm or injury occurs as a result of their failure to act. R v. Pittwood (1902) 19 TLR 37 (Assizes) concerned a duty to act, contract Parental duty to act and a duty towards family members, this is a common law duty that members of a family owe to each other to care for each others welfare. R v. Gibbins and Proctor (1918) 13 Cr App Rep 134 concerning duty to care, R v. Harri s and Harris (1993) Reliance or voluntary assumption of care, R v. Stone and Dobson (1977) CA Supervening fault or dangerous situation, this is where the defendant does nothing to avert a dangerous situation resulting from their conduct. R v. Miller (1983) 1 All ER 978 in relation to situation created by the defendant. The mens rea deals with the guilty state of mind. There are two states of mind which either together or separately can form the necessary mens rea for a criminal offence. These are Intention and Recklessness. Direct intention is where the defendants purpose is to cause death, mens rea of murder is the intention to kill or cause grievous bodily harm. Indirect intent which is also known as oblique or foresight intent is where the unlawful consequence as a result of the defendants conduct is foreseen by the defendant as virtually certain although its not the defendants purpose. R v. Woollin (1999) 1 AC 82 (HL) oblique intention, virtual certainty. Reckl essness is where the defendant takes an unjustified and unreasonable risk. There are two known types of recklessness, subjective and objective. The law tends to concentrate on subjective tests. R v. G (2004) 1 AC 1034 (HL) subjective recklessness, criminal damage R v.Cunningham (1957) 2 QB 396 (CA) subjective recklessness and interpretation of malicious. The Cunningham test applies to all offences other than criminal damage. Coincidence of actus reus and mens rea When the defendant commits the actus reus of an offence, for liability to occur it must be shown that they also had the correct mens rea at the time the actus reus was committed. The guilty act and guilty state of mind must coincide. Problems have cropped up where the actus reus has been performed, then the mens rea comes into play, and also where the mens rea is present first and then the actus reus follows In order to overcome these problems the courts have used several approaches in order to secure a conviction where the actus reus is complete prior to the mens rea being present, and with the mens rea occurring before the actus reus. The approaches that they have used are called continuing acts and a chain of events. Continuing act is where the actus reus is committed over a period of time and the mens rea is present at some point during it commission. Continuing acts Fagan v. Metropolitan Police Commissioner (1969)1 QB 439 (DC) The defendant accidentally stopped his car on a policemans foot, (actus reus) when he realised this he didnt take it off (mens rea).It was a continuous act as he had actus reus when he ran over his foot and this only stopped when the car was moved and then the mens rea when he refused to move it. The defendant was subsequently found guilty of assault. R v. Kaitamaki (1985) AC 147 He penetrated the victim (actus reus) and when he realised she objected to the penetration he did not withdraw at which point mens rea was present. It was hel d that the actus reus of rape was a continuing act, and when he realised she objected he formed the mens rea the actus reus was still continuing and so there was coincidence. The defendant was found guilty of rape. R v. Miller (1983) 2 AC 161 (HL) The defendant fell asleep on a mattress in a house whilst smoking a cigarette. When he woke up he noticed that the mattress was smouldering he left it and decided to go to another part of the house. He made no attempt whatsoever to stop the damage and due to this the house caught on fire. The act which caused the (actus reus) dropping of the cigarette happened when the defendant was asleep and the (mens rea) recklessness, damage to property occurred when he awoke. It was held that the defendants failure to do anything about putting the fire out was the actus reus and this coincided with the appropriate mens rea. Chain of events This is the second approach that deals with the mens rea occurring before the actus reus. The defenda nt will be found to be criminally liable if the guilty act and guilty state of mind are present even if they do not coincide during the series of events. R. v Church (1966) 1 QB 59 (CA) The defendant took the victim to a van in order to have sex with her. The victim made fun of him so the defendant knocked her unconscious (mens rea). The defendant believed she was dead so he threw her into a river in order to get rid of the victim. The victim then died (actus rea). The defendants conduct was viewed as a series of acts designed to cause GBH or death. The actus reus and mens rea were present during the chain of events. The defendant was found guilty of manslaughter R v. Thabo Mali (1954) PC (South Africa) The defendants took the victim to a hut and beat him over the head intending to kill him. They believed they had killed him so they rolled him over a cliff. The victim did not die from the beating or being rolled of the cliff but died of exposure. It was held that the act us reus and mens rea was present throughout. The actus reus consisted of a series of acts and the mens rea was present at some time during the chain of events. They were found guilty of murder. R v. Le Brun (1991) CA The defendant knocked the victim (his wife) unconscious. Whilst he was moving her she knocked her head on the kerb and this fractured her skull. She later died of the injury. It was held that the original unlawful act and the act causing death (actus reus) and the (mens rea) were all part of the same chain of events. The defendant was found guilty of manslaughter. My own example Im employed as a female plasterer on a building site. After finishing work one evening and on my way home I realised that I had left something behind, so I head back too the site. The site has never been secured properly and the workforces have been complaining about this for some time. Whilst back on site a stranger approaches me and threatens to cause me some harm. As he is coming towards me I deliver a powerful kick into his stomach which causes him to fall back and trip over an item on the floor. He bangs his head on the ground and I also use my hawk to batter him over the head several times to ensure he does not get up again in a hurry. There is a great deal of blood on the floor and he does not appear to be breathing. I feel that he may be dead. I drag his body too the back of the worksite and hide it amongst some very tall weeds. I go back to the area where the blood is, clean up, and then leave the site. This example illustrates how the actus reus and mens rea are all part of the same chain of events and were present throughout Task 1(b) Common assault does not involve physical contact. It is an offence under s39 of The Criminal Justice Act 1998. The actus reus of common assault is when the defendant causes the victim to apprehend (expect) immediate unlawful violence. This can be carried out by conduct, deeds, menacing silence, words, or a failure to act. R v. Ireland (1998) AC 147 (HL) The defendant made several silent calls to the victims, these occurred during the evening. They eventually suffered from psychiatric illnesses (depression, stress, anxiety). The House of Lords decided that words can amount to an assault and that silence calls could be seen as communicating a threat. The defendant was found guilty of assault. R v. Constanza (1997) 2 Cr App R 492(CA) The defendant stalked the victim by following her home, turning up to her home address uninvited, writing offensive words on her front door, making several silent phone calls and sending her over 800 letters. The last letter was hand-delive red and this led to the defendant being found guilty of assault. The victim suffered psychiatric illness as a result of the defendants actions. The mens rea of common assault is the intention to cause apprehension of immediate violence or subjective recklessness as to the assault. Battery involves the use of physical force. The actus reus of battery is the infliction of force or violence, this includes slight touching. The actus reus is made up of three elements which consist of direct and indirect physical contact, non-consensual and physical contact. R. v Haystead (2000) 3 All ER 890 (DC) This case concerns indirect contact. The defendant punched a mother holding her baby. The baby dropped and the defendant was convicted of battery on the baby. Battery requires non-consensual touching, the victim can consent to contact (express) or contact is implied, day to day contact. Battery deals with minor physical contact resulting in minor injuries for example grazes, min or bruising, slight cuts, and black eyes. Collins v Wilcox (1984) 1 WLR 1172 (DC) this case gave examples of implied consent, agreed back slapping, seizing a hand in friendship and jostling on the underground. The mens rea of battery is exactly the same as assault, intention to make physical contact or subjective recklessness as to such contact. Unlawful malicious wounding or causing grievous bodily harm with intent is the most serious of all the non-fatal offences and is found in s18 OAPA 1861. Section 18 covers GBH by omission. The actus reus is that the defendant must have unlawfully wounded a person or caused grievous bodily harm. It involves deep repeated cuts, minor cuts, bones penetrating the skin. Serious injury includes mental injury and most recently the transmission of diseases. R v. Ireland, Burstow (1998) AC 147 (HL) As in Ireland above. Both defendants stalked the victims with unwanted attention for over 3 years. The victims suffered from psychiatric injuries as a result of the ongoing acts. The house of lords in both cases concluded that harm to a persons mind that amounted to a recognised medical condition would fall under the category of bodily harm. R v Dica (2004) QB 1257 (CA) The defendant who was HIV positive had unprotected sex with several women. The defendant was fully aware that he was infected but he did not inform the victims of his condition. The court of appeal accepted that a person could be liable for recklessly infecting another person with HIV. The mens rea of GBH with intent is that the defendant must have intention to wound or cause GBH. Recklessness as to causing GBH or wounding (malice) and intention to resist or prevent arrest. Strict Liability offences are those in which the defendant may not have intended or known about the consequences of their actions or the circumstances. The defendant does not need to have a guilty state of mind in relation to all parts of the actus reus (guilty act). St rict liability cases make up half the cases appearing before the courts. Defences for strict liability are those that are applicable to actus reus.   Defences that are probably relevant to actus reus include automatism and duress and also foreseeability is quite important as well. Strict liability offences are mainly created by statute and regarded as regulatory offences and public safety/public interest offences. The offences that are covered are quite extensive and include parking offences, road traffic offences, health and safety, dangerous drugs, dangerous weapons, sexual offences, environmental pollution, possession and the control of dangerous and non-dangerous animals. Sweet v Parsley (1970) HL This case is an important case on strict liability where the need for mens rea in most criminal cases was spelt out and where it was suitable for the presumption for mens rea to be dispensed with. Harrow LBC v. Shah (2000) 1 WLR 83 (DC) The defendant was found guilty of s elling a lottery ticket to a young person under the age of 16. The defendant was unaware of the persons age when selling the ticket. R v Marriot (1971) the defendant was found guilty after police searched his home and found a tiny amount of cannabis on a knife. His defence told the court that he had not been aware of what the substance on the blade was, he appealed against the decision and was still convicted. It was held that the accused was guilty if he knew that there was a substance on his knife even if he did not know what the substance was. R v Deyemi (2007) CA the defendants were caught with a stun gun, which they believed to be a torch. It was held that the prosecution only had to prove that they possessed the stun gun, and the stun gun was forbidden by the act. The prosecution did not have to prove that the defendants knew that it was an illegal weapon Alphacell v Woodward (1972) HL the defendants were charged with causing pollution to a river. The pollution occurr ed as a result of a pipe becoming blocked from their factory and the waste product entered a nearby river. FJH Wrothwell v Yorkshire Water Co. (1984), the defendant who was the director of the company  carelessly poured 12 gallons of herbicide into drains. These drains led into a river. Smedleys v Breed (1974) AC 839 A big manufacturer of tinned peas was convicted under the Food and Drugs Act (1955) (now Food and Safety Act 1990) when some tins were found to contain a caterpillars The arguments in favour of strict liability are: They help to prevent environmental pollution People may be prevented from owning unlawful weapons and drugs The public is protected against unsafe structures Helps to encourage people to really improve standards so they will not be prosecuted for committing a criminal offence

Evaluating Teamwork At A Team Essay - 2114 Words

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Advantages and Disadvantages Of Sampling Method Free Samples

Questions: 1. Discuss the advantages and disadvantages of having a sample of this size. What factors should be considered in decision on sample size? 2.What are the advantages and disadvantages of the current Sampling Method? 3.What are your suggestions to improve the Sampling Methods? 4.Discuss some of the problems in the process of data collection and how to address them in future study 5.What secondary Dataset can be used to check the representativeness of the sample and how can it be used? Answers: Introduction A certain proportion of data that has normally been used to represent the entire population is referred to as a sample. It has been used because it is not possible to collect data from the entire population (Moher et al, 1994). The parameter of the population is estimated from the calculated statistic of the sample taken for use. The number of elements in a set of study forms the population size while the number of elements available in the subset forms sample size. More often, researchers prefer large sample size to small ones because of their characteristics of covering the larger proportion of the population hence increasing the accuracy of the sample statistic (Bacchetti, 2002). In our scenario, the population size is sixty nine thousand from which a sample size of fifteen thousand was selected for use in the study. This sample size represented the number of bank workers who will be sampled. According to the standards of sample sizes, the suitable sample size for this study is 38 3 with 95 percent confidence level and a margin of error of 5 percent. Probabilistic sampling method was also used by the research institutions in ensuring for the fairness of sample selection. 1.Advantages of large sample size Large sample sizes help in obtaining the mean that is quality and precise. The precision of obtained mean will help greatly in the prediction of the population parameter since it covers larger fraction of the population. Outliers present or that might be present in the data are dealt with through the determination of the sample mean. It is important to deal with outliers because they totally differ with the mean and may give deceitful image about the sample or population (MacCallum et al, 1999). Larger sample sizes guarantee for the reliability of the sample mean that is used as the estimator of the population parameter. In order for a sample to fully reflect the population parameter, large sample size is always is normally preferred by the researchers. The quantity need to be pinned down as the standard error (Se) of the mean is therefore used to quantify the reflection of population mean. In each of the sample mean calculated, the standard error is essential. Due to the wider coverage of the population elements, this has been taken as one of the large sample advantages. Disadvantages of large sample size Large sample size is found to be so much involving and time consuming since it covers a wider proportion of the population of study. This makes the researchers to try to avoid it though its results are reliable and precise. Working with large sample size is also expensive to work with, like for example, in this our case, taking a sample of 15,000 bank workers in Belgium will take a lot of time and also the expense involved in the process will be high. A lot of time is required since the larger sample size is spread in the manner that the population is spread and thus collecting data from the entire sample will involve much time compared to smaller sample sizes. Due to its wider coverage, the expense that is involved in data collection process is also higher compared to expense that could be incurred in a small sample size. Factors to consider when choosing sample size When deciding on which sample size to work on, it is important to consider the size of the population so that the sample does not over represent it or under represent it. In this scenario, the research institutions assigned the duty will consider the total bank workers in Belgium (i.e. 69,000) that will later used to calculate the suitable sample size. If the surveyor wants to incur low cost in sampling, he or she will prefer small sample size. it will also help in determining how precise we should be with our data. Sampling whole lot of 15,000 Belgian bank workers will mean high cost incurred in the data collection process. Another factor to consider when selecting the sample size is prior information about the subject of study that will help in determining the size of the sample for use in the study. Prior information can be considered in making decision whether to increase or reduce the sample size. Prior mean and variance are some of the elements that are considered from prior information. Additionally, when choosing the sample size, practicality of the chosen sample size is important in that the size of the sample must be making sense and can be exercised. Among other factors is marginal error because of its reliability in the determination of the perfection of the sample. Marginal error will be affecting the breadth in which the calculate mean will lie on. Also it is important in the construction of the confidence interval level ones the confidence level is available. 2.Equal chances were provided for the bank workers to be selected in the sample by employing probability sampling methods. When applying probability, the chances will be ensured that they are greater than zero. In the process, human biasness is reduced since judgment of the researcher in the selection process is eliminated making the process fair for inclusion of all banks and the bank workers in the sampling process. Research institutions employed stratified sampling method. In this process, the research institutions first do the random selection of the banks that formed the strata then randomly select workers from the randomly selected banks, this ensured fairness in the selection process. Advantages Stratified sampling method gives more precision of the same sample size as compare to other probability sampling methods like the simple random sampling. In the estimation of the population parameter, precision is deemed important. Each stratums statistic will be calculated and their closeness compared to one another. The process is found to be cost effective as it only involves random selection of different baking institutions and workers over the entire population which makes it half completed because of its precision. The method is also flexible that it allows for the selection of any number of participants efficiently and with a lot of ease. Because lesser degree of judgment of the researcher is required, the process tends to be more effective and also results to accuracy in data selection. Compared to other sampling methods, it forms easier way of sampling since it does not involve complicated process. Additionally, technicality is not required in probability sampling methods; t his therefore provides room for anybody to being in a position to conduct the process. The only requirement is random assignment of numbers over the already identified strata. Disadvantages Stratified probability sampling method of selecting the sample results to the selection of specific class of samples to be used. The process is time consuming since the researcher is required to follow all due procedure such as first identifying strata and also going down to the strata to do the selection of individuals that will now participate in the process. The researcher may be filled with monotony when using this sampling method since the same procedure will be repeated several times for the required information to be obtained which in turn may reduce the efficiency of the surveyor. 3.Sampling method chosen may have influence on the outcome data for use in the analysis. For example, the method that was used in sampling the banks was found with biasness that will affect the results obtained from the study and the drawn conclusions (Mann, 2003). Dealing with such short comings, the researcher is supposed to ensure that they reduce biasness as much as possible to save on the results and their dependability. Biasness can be reduced through randomization which will require the researcher to ensure for equal chances of selection of the sample of study. This sampling technique so far is more effective since it ensures equality of selection of samples for use in the study. To improve sampling technique, the sample is divided into groups referred to as strata that must be showing relationship that is meaningful in the study. Differences in the response from the strata are eradicated through stratification for the data to reflect the entire population and ensuring the representation of each stratums opinion. In most of the cases, stratification is done by gender in order to take care of the divergent opinions and have all of them represented. Because each sampling method is concerned with precision in the analysis thereafter, testes methods are supposed to be conducted. This is done with the aim of ensuring that each sampling method chosen for use to satisfy research goals. Potential method is determined through precision and the cost associated. Standard error will be used in this study to measure the level of precision. In the process, smaller standard error will mean higher precision while larger standard error will mean lower precision of the used sa mple. 4.Most of the researchers have been using questionnaires in the collection of data from the respondents. Being that it is the preferred method of data collection does not mean that I is perfect since it is always associated with problems. One major disadvantage of using questionnaire for data collection is dishonesty of the respondents. Dishonesty has been arising as a result of respondents hiding the truth from the surveyor when answering the questions as provided in the questionnaires. Being that the questionnaires were sent to the respondents in our case, clarity of the questions may be lacked in the case a question is not clear hence may lead to misunderstanding of the questionnaire questions (Zaza et al, 2000). This problem is encountered as a result of considering some of the answers private by the respondents and fear of disclosure and desirability bias. This problem can be combated by assuring the respondents of their privacy and also keeping their identification confidential. In our scenario, questionnaires were not presented to the respondents face-to-face this may lead to the difficulty in understanding the questions and also interpreting them since they will lack clarity of the questions and guidelines on how to answer the questions. As a result, there will be variation of responses from the respondents since each one will have understood and interpret the questions differently, the provided answers may not have answered the question according the subject of study. Skewed results can be can be eliminated by ensuring that questions in the questionnaire are well structured, easy to read, understand and interpret. In the case where respondent have their agenda; biased information can be achieved in this case. They can have their opinions about the questions manipulated due to one reason or another. For instance, a questionnaire with many open ended questions may make it difficult for respondents to analyze the questions. In most cases, answers obtained from these questions are always individualized ad express personal opinions that cannot be quantified for analysis. 5.Representativeness of the data is checked using the secondary data that will be collected from the National Bank of Belgium in conjunction with Employment industry in Belgium. This data will act as the reference point for the data collected for use in the study. At the same time, the dataset will as well be used to collect data that will be termed relevant from other sources in the previous studies. Descriptive information is provided by secondary data that are important in offering support to the study that is being done and also offering them with dependable facts. Additionally, the variables used in the study are tested if there is a relationship that exists between them and also helping in building up the model. Secondary data are as well used in data mining where computer technology is used in studying the trend for the previous research by visiting large volumes of data. Among other uses of the secondary data, they are as well used in the identification of relevant sources in order to do away with plagiarism (Cooper, 2003). This helps in maintaining the quality and integrity of the studies. References Cooper, D. R., Schindler, P. S., Sun, J. (2003). Business research methods. Moher, D., Dulberg, C. S., Wells, G. A. (1994). Statistical power, sample size, and their reporting in randomized controlled trials.Jama,272(2), 122-124. Bacchetti, P. (2002). Peer review of statistics in medical research: the other problem.British Medical Journal,324(7348), 1271. Mann, C. J. (2003). Observational research methods. Research design II: cohort, cros sectional, and case-control studies.Emergency medicine journal,20(1), 54-60. Zaza, S., Wright-De Agero, L. K., Briss, P. A., Truman, B. I., Hopkins, D. P., Hennessy, M. H., ... Pappaioanou, M. (2000). Data collection instrument and procedure for systematic reviews in the Guide to Community Preventive Services.American journal of preventive medicine,18(1), 44-74. MacCallum, R. C., Widaman, K. F., Zhang, S., Hong, S. (1999). Sample size in factor analysis.Psychological methods,4(1), 84.