For finance class Case Study Example | Topics and Well Written Essays - 500 words

For finance class - Case Study Example The President had to meet with a few internal control requirements to take the company to the next higher level i.e. to go public. The internal control aspects that need to be considered by the President are planning, controlling and workforce maintenance. Planning is one of the major steps that should be taken in an effective way so that future problems can be identified easily and corrective measures can be taken to deal with bigger issues in the future. Controlling involves certain processes such as departments, policies and activities of the employee. For LJB Company, the entire unit should be segmented in departments with specific tasks assigned to each department to make the operations smoother. The President of LJB should take a strong step towards implementing the company’s terms and policies because they ensure that the employees perform under stipulated guidelines and provide their best as they are able to remain focused towards their responsibilities. 2. Advise the President of what the company is doing right (they are doing some things well) and also recommend to the President whether or not they should buy the indelible ink machine. When you advise the President, please be sure to reference the applicable internal control principle that applies. According to LJB Company’s operational process as a small firm, the President implemented certain appropriate internal controlling measures. In this context, it can be stated that the company has been able to attain certain positive outcomes which has facilitated them to the desire of taking the business to public. The terms and policies applied in LJB were quite strong because an employee was fired by the President when he was found guilty of wrongdoing within the company premises. This shows active involvement and ability to demonstrate proper control by the

Human resources - performance management Research Proposal

Human resources - performance management - Research Proposal Example This paper tries to explore if it is possible to implement the system effectively at the workplace. The main generations which would be considered in this context are the Baby Boomers, Generation X and Generation Y. The generation born between 1943 and 1960 are referred to as Baby Boomers, while those born between 1961 and 1980 are better known as Generation X while people born after 1980 are called Generation Y. The motivation behind this project to highlight on the importance of different performance management practices for the different generations. Critical Literature Today multiple generations are found to be employed at the place of work. However, in a manufacturing oriented economy, they are found to be distinguished from one another through organizational stratification and structural scenery of that economy. The older or senior employees are found to be working in the head offices holding the commanding positions, while the middle aged employees are found to be holding positions requiring high skills mainly belonging to the management cadre. The youngest, greenest who are considered to be most strong physically are found to hold the factory floors and accounted for the sales representatives, junior accountants, assistant managers etc. One of the major outcomes of this accidental blending of different generations is creativity. People belonging to different generations are likely to bring up different thoughts and yield new ideas for solving problems and creating future opportunities. (Zemke & Raines & Filipczak, 1999, p.10). The study would r eflect the some of the fundamental differences between the different generations in terms of their work habits, work ethics and career views and values. According to a research conducted by Raines (2007), the rich combination of different generations in organizations has called for changes in the recruitment and performance management strategies by employers. The results show that competition for talents have been escalating as there are more generations who have been working side by side. It is seen that the oldest members belonging to the generation of Baby boomers have been coming close to their age of retirement. However, this is also true that their performance and productivity is not the same as the Gen X and Gen Y. That is why they different performance evaluation practices. However, the ageing generation is also required in the organizations as they are rich talents and their knowledge is of high worth in the organizations (Raines, 2007, p.1). Recently a survey conducted by Next Step, which was led by Jenifer Vessels (1998), on four different generations in organizations aged between 20 years and 60 years belonging to both government agencies and private companies. The results showed that 72.3% of the respondents had been

Reviewing Personal Development Through Reflective Practice Social Work Essay

Reviewing Personal Development Through Reflective Practice Social Work Essay The road up ahead unnoticed was damp in strong rain let loose against a grey sky that hung in desperation. Then shouts shook up the vicinity as a short craggy boy came in view, just enough to be seen chasing after a grown man. Dark skinned he perspired of fear while he threw large stones in the direction of his pursuit. His father straddled along howling while doing the same. The chase moved on almost reaching the street corner when the grown man abruptly turned about, drew out a long knife and unsurprisingly took in the direction of the boy. Five weeks before today, I had at my desk a 13 year old girl admitted for sexual abuse which occurred in an out of campus activity over the weekend, and involved two boys ages 14 and 15. I took up the intake interview for document support for criminal charges. The girl was an obvious difficult untrue to her shattered self, torn between betrayal and the worth of protecting friendship. I was in some sort of conflict myself, appalled with the clinical findings, and given the ages of these children involved. Both accused and the victim belong to families of lower income brackets with parents working in the informal sector. Later at night what first came to mind was a concept put forward by Reginald Revans in the 1940s that People had to be aware of their lack of relevant knowledge and be prepared to explore the area of their ignorance with suitable questions and help from other people in similar positions. Revans developed on the idea individuals successful with self development are those in adversity who struggle to understand themselves. The formula prescribes L = P + Q where L is learning; P is programmed thought or what is taught or read knowledge and Q is questioning to create insight. Apparently what I hoped to attempt, if any, was to learn in the execution of my task. In my circumstance as a social worker in child protection for disadvantaged communities; many deep, painful thoughts had me that I questioned if I could make sense of it at all. But work itself, frequent with disordered and dysfunctional children and families, brought me to understand the importance of perfecting the tool of reflective practice. Reflection nourishes the soul as it is a tough discomfort to take issues of the self to the fore. Whatever else is said of it, the tool can elicit insight and appreciation, and develop certain faculties of the mind. It is through reflective practice that I am competent and confident to work positively toward the best outcome in the interest of child with whom we work. This I began to write a few lines every night about my tasks, thoughts, fears, and achievements which helped me to focus and determine the real issue. Reflective practice is an element of learning through the involvement of self in exploring ones responses in an experience (Boud, Keogh and Walker, 1985). One must begin by understanding the purpose and definitions of reflective practice well explained in the writings of Johns and Freshwater (1998). The process requires methodical recording events and experiences in diaries and journals (Zubbrizarreta 1999 and Tryssenaar 1995), or professional development diaries to return and improve interpretations (Clouder 2000). The method is taken further by Gillings (2000) in placing emphasis on a sincere commitment to self enquiry and a readiness to change through honesty and openness. This argument is supported by Atkins (2000) by determining self-awareness of temperament and conviction as essential to the reflective process. Ann is a transferee to the university where she easily became friends with gang groups. One weekend she was invited to come join a swimming event on June 28, 2008. After swimming these teenagers decided to drink and others took a dose of marijuana. Ann managed to get too drunk that was left behind with two boys who promised to take her home. Ann was raped that night. The activity held outside campus was not led by the academe that jurisdiction and responsibility is argued. L O G I thought it would be a sweeping case for it concerned eleven minors of the same campus, having managed to access liquor and drugs. I believed there was neglect and unkindness on the part on all participants of the activity for leaving a vulnerable girl to the care of bullish boys, and passed judgment that this was some fraternity issue. Because I knew of the forensic evidence and laboratory results, it was difficult to let go. As I struggled with myself, I discovered the later developments in reflective practice threshed that individuals reach a limit reflecting alone, unaided (Boud, Keogh and Walker, 1985) and that there is more benefit to adopt reflective practice in a group setting or one-to-one forum through supervision (Fisher 1996). Other articles refer this as a guided reflection or learning sequence by studying ones feelings that an evolving of ideas and appreciation spills out. Mann (2008) presents shared reflection to reap benefits of continuity, trust, peer support and an opportunity to reframe. Possible harmful outcomes in spite the aim to provide self direction are also expressed in other works 1-busy work, 2-lack of impact, 3-rejection by clients, 4-misplaced confidence, 5-reflection without learning, 6-intellectualizing reflection, 7-inappropriate disclosure. The article points out that shared reflection is enabled by free expression of opinion when there is a common perceived usefulness of the activity and prior reflective practice experience. However the actual implements of shared reflection could differ as to organizational climate and allocation of time for reflection. But with the many work constraints, shared reflective activities was not possible at the moment. I adamantly guided Ann to pursue a criminal case. A complaint against the boys was filed in the court under IS No 08-1777. However, with the law protecting minors below 16 in place, the prosecutor dismissed all criminal charges with reason that these boys are below age of maturity. It was not long that these kids are back in campus. Inquiries on the incident were in sequels which the small institution claiming lack of jurisdiction had nothing to do and nothing more could be done. Cruelly enough, the boys taunt Ann in campus that she reports to her father who in return assaults one offender. Anns father is charged for frustrated murder and child abuse on the boy still not proven guilty. L O G I was totally devastated with the fact offensive sexual conduct shall pass without incarceration or remorse, seeing that the laws that protect children in conflict a twist. In as much as the boys are exempt from criminal liability, differentiation between wrong and right and the admittance of fault is not examined. While the state protects these boys from punishment, the state did not protect Ann. Gillian Ruch (2008) points out that there is more literature on definitions of reflective practice, when less thought is given to the conditions to facilitate its development. Insofar as this tool recognizes complexity and  uncertainty inherent in social work practice, there should be more emphasis on the need for practitioners to work within safe, clear, collaborative and communicative working practices that are interdependent -in respect reflective practice. Ann fell into depression; thinks it was her fault (she was too drunk) because she allowed the boys to abuse her. She caused all the troubles (her father beat up one of the boys who files a child abuse case against him and the fraternity wanted to avenge) She inflicts pains on herself (wrist slashing), ran away from home and seeks refuge from gangsters. Smokes, drinks, had some theft issues and turned promiscuous. L O G I felt responsible in some way for this behaviour and inadequate for not being able to do more. I though hard of ways to develop a positive self and positive self image for Ann. I involved too deeply with the family, encouraging parents to seek out opportunities to praise, reinforce, and recognize accomplishments. It consumed me, trying to get Ann to an improved ability to trust others in a developed sense. Models of reflective practice originate in different fields of study, typically depict an iterative process but are not explicit of the role of emotions. A simple model of reflection is to return to the experience and take feelings into account by recognition of emotion, attending to the feelings and developing a new perspective (Boud, Keogh and Walker 1985). Behaviour Ideas Feelings Returning to experience à ¢Ã¢â€š ¬Ã‚ ¢ Utilizing positive feelings à ¢Ã¢â€š ¬Ã‚ ¢ Removing obstructing feelings Re evaluating experience New perspectives on experience Change in behaviour Readiness for application Commitment to action Experience(s) Reflective processes Outcomes Looking at my case from a critical perspective, I have prepared a simple log. L O G What was I trying to achieve? I wanted badly to help Ann who was a naughty smart, completely lost in the age of adolescence. Why did I respond as I did? My frustration is coupled with the knowledge of several studies that have shown that as age increases in disadvantaged communities, boys have more liberty than girls to explore outside the home (e.g. Jones et al., 2000). And because these disadvantaged communities are less safe, the decline in a girls independent activities has crippled the overall growth of society. What were the consequences of that for the patient, others, myself? I have given my all to this case, but have time and fund constraints with the volume and limited manpower of our organization. Ann was sent to the Center for the Prevention of Child Sexual Abuse, another NGO with structured methods on handling child sexual abuse cases. How were others feeling? I came to meet the members of the childs family, who struggled through the issues and difficulty at hand. On the other part, the families of these boys manifested a displaced confidence. How did I know this? I kept in constant communication with the mother until a year after that I left work. Why did I feel the way I did within this situation? I knew that I could have done more. And I believe there is a need to evaluate the legislation. Did I act for the best? The constant weight of workload pressure and prioritization is often of concern to us as child protection workers. What knowledge did or could have informed me? Policy developments like these are important to be placed in the fore to promote better understanding of the real levels of risk to children in the various forms of social interaction. Does this situation connect with previous experiences? Not particularly, although admittedly I was drawn into this case. How could I handle this situation better? I should have been upfront with the family of the legislations in place such that the matter would be dealt with outside legal perspective. What would be the consequences of alternative actions for the patient/others/myself? There should have been a coordinated approach, assigning each child to a social worker effectually collaborating findings and cure for child disorientation. How do I now feel about this experience? Anger. I felt consumed by this experience and sore. Can I support myself and others better as a consequence? Yes. I have learned to distinguish the limits of my work and the level of attachment I can allow myself. How available am I to work with patients/families and staff to help them meet their needs? I extend myself in certain situations that compel or affected me more than the work should. Social work in disadvantaged communities is hefted with several constraints, if not stressful to a practitioner. A serious dilemma is that child protection and community is particularly influenced by poverty and other forms of inequality. It can be said that a harsher impact of transnational integration would be an increased number of anxious people, so much more in poorer communities, where support systems are unsurprisingly ineffectual with a shorthanded social workers group. In these depressed areas, where the core family unit is continually stressed, abuse easily coughs up. Adolescent sexual abuse is an experience relating to a broad spectrum of challenges across social work development, with suicide as the most severe outcome where much is lost. Other post trauma behaviours common are sexual risk-taking and substance misuse, depression, anxiety, and panic aggression and delinquency. With the escalating figures on abuse, my department puts up response to the WID (Women in Development), WAD (Women and Development) and GAD (Gender and Development) programs of the Government. It is among five pilot projects focused on women, children and family, catering a broad geographical coverage with mandate as Training Center. We use a total management approach particularly in severe cases of violence. We work closely with networks such as the Anti Child Abuse Network (ACAN, a national network), Gender Equality and Development (GEAD network in the city of Baguio) and the Regional Organization of Gender Focal Point (ROGFP). The department six years in existence is established through British funds. This concluded in 2006 leaving behind a vacuum in the handle of Family Needs-and-Risk-Assessment of victim survivors, including other forms of help (coordinating temporary shelter and home visits). My work as a social worker involves entering the lives of children and families in distress, conflict or trouble. To do so requires theoretical competence and self awareness. Reflective practice ensures that my motivations and past experiences are used to enhance our practice and to help me recognise our impact on others. With it I am also able to establish boundaries when working with children that I have become less assuming, although it does take experience, time, and skill. Noticeably, it has reduced my negative experiences as a service provider. I have the ability to step back and look at the bigger picture we are able to work more effectively with a service user. Reflection ensures confidence that our responses arise from the clients situation rather than our past or needs (Lishman, 2002). It prompts the evaluation of practice and gives way to opportunities to learn from experience by identifying what worked well and what may need to change. Reflective practice helps us to keep our commitment of continuous professional development and reinforces the importance of the attitude and keeps accountability at the forefront of our practice (Thompson, 2002). A crucial aspect of reflection is being able to use the criticism faced and utilize it-that is, turn the situation on its head, and learn something positive from it. Schon (1983) has explained, professional knowledge is grounded in professional experience. L O G In one time I consoled the mother of this young girl by telling her not to worry because this circumstance will make her stronger and wiser. And she snapped at me in disappointment that it was the least of her interest to gain strength and wisdom at the expense of her child. For long I was in moral conflict over the case. More so because it was a strong issue in the area of my work and to circles I involved in. Contradictions from interest groups mounted, many simply for the benefit of group funding among others. It was very sad because those hurt from the occurrence could not be helped. Deep inside me I questioned if we did protect the child and should be protect a child who abuses another child. The reflection of my inner conflict is drawn in the tree below. Child Protection RA 7610 Anti Child Abuse It was devastating and I was frustrated. Do the most significant and influential ethical theories deny the existence of natural rights? I should have been upfront with the family of the legislations in place such that the matter would be dealt with outside legal perspective. Action is wrong because it ignores Anns rights. In as much as the boys are exempt from criminal liability, differentiation between wrong and right and the admittance of fault is not examined. While the state protects these boys from punishment, the state did not protect Ann. Ann fell into depression; inflicts pain on herself (wrist slashing), ran away from home and seeks refuge from gangsters. Smokes, drinks, had some theft issues and turned promiscuous. Have I failed to protect and preserve public interest because of a selective indifference to information, understanding, and knowledge that bear on the preservation of human values and the solution of problems ? Should policy developments as this important be examined to promote better understanding of the real levels of risk to children in the various forms of social interaction? It consumed me, trying to get Ann to an improved ability to trust others in a developed sense. On the other part, the families of these boys manifested a displaced confidence. Is policy effective with the harsher impact of transnational integration and increased number of anxious people, so much more in poorer communities, where support systems are unsurprisingly ineffectual with a shorthanded social workers group. With all confusion, it was my constant reflective practice that held me through. I then took upon myself to pursue that this tool as a functional process to be performed at individual level by members of the team and in case conferences. The specific objectives include: (a) Increased awareness of RA 7610, Special Protection of Children against Child Abuse, Exploitation and Discrimination Act and RA 9262, An Act Defining Violence Against Women and Their Children, providing for Protective Measures for Victims, prescribing Penalties therefore, and for other purposes; through reflective practice methods and approaches focused on the family as a basic social unit, and extending to schools, universities, workplaces and the communities. (b) Reporting reflection after conducting immediate extensive treatment and protection and preventive psycho-social services through testing and treatment, advisement and counseling. (c) Shared reflections on particular cases for the containment of severe co nditions that further endanger lives and situations of victim survivors, families and communities. (d) Shared reflection that explores potential roles of victim survivors and families in the reflective practice initiatives for community learning. (e) To log these activities for the advancement of research methods and further betterment of programs and services delivery. At this point I thought it useful to reframe the work process. Reflective practice should be central to reframing a process flow of intervention in my department. The revised diagram puts forward the value of dialogue after every process step which could change the difficulties experienced through my individual account (Errington, Robertson 1998). It is thought that reflective practice adopted in a group setting by practitioners should be inextricably linked to social workers settings. The interaction also establishes rudiments of supervision by the department head as suggested in the writings of COT (1997), conducting group reflective practice supports and promotes professional development and continuing education. REFRAMING INTERVENTION CHART Patient with guardian is received by WCPU Social worker Guardian is made to complete the consent form Trauma intake interview if a patient is conducted, discussion with caretakers, companions and relatives Gathering, distillation and relaying of crucial information to the clinician before the interview and exam Collaboration with hospital staff members on-call Physician and social worker interview the Guardian/ caretaker Refers patient and family for temporary shelter, meal, food, financial assistance from LGU Submits and follows up lab specimen results Reflective Practice 1 PATIENT INTAKE Rigorous documentation of interviews, risk assessment and care of the survivors Worker conducts risk assessment for the child and family and decides on a plan of action that best protects the child and the family Refers child to a psychiatrist if needed Coordinates and refers client to other agencies like OSCWD, CPTCSA, PNP and others SW provides advice and crisis counseling 4RISK ASSESSMENT (Social worker) The physician carries out an appropriate forensic interview that is child sensitive, using a developmental approach Social worker listens to interview an transcribes interviews as necessary 2 FORENSIC INTERVIEW The physician and social worker assess and refer patients who require counseling to the psychiatrist Psychiatrist conducts regular therapy sessions for the child until the child shows, significant improvements in diagnosis 5 PSYCHIATRIC CARE Physician performs non-traumatizing medical examination that adheres legal requisites for evidence collection, including colposcopic pictures Physician also examines child for medical problems not associated to the abuse Physician devises and implements a medical treatment plan Assisting the physician in the conducting of the physical examination and gathering of specimen and other medico-legal evidences Social worker passes and follow-up laboratory request. Refer lab results to physicians concerns and informs patient Contact and get food from dietary for the patient as needed When necessary, referrals are made for medical services not provided by WCPU 3 MEDICAL EXAMINATION When summoned, WCPU physicians appear in court to provide expert testimony about the findings 6 COURT TESTIMONY Reflective Practice While the work of Gillings (2000) guides reflection of feelings to deliberately evaluate the experience, it is expected that a particular situation is adequately analysed and that the development of an action plan follows. By reframing the process flow, there is better chance that a holistic action plan evolves each time shared reflection takes place and additional information integrated to the case. This requires that professional development diaries (Clouder 2000) become part of the workflow, where documentation of group reflections preserves the learning experience for the reference of future learning groups. Importantly, each group reflective practice should begin with the understanding of what the team is trying to achieve. The sensitivity articulated by Atkins in Burns and Bulman (2000), is that there must be commitment and willingness to listen to the views and insights of other practitioners. By so, it allows for new posits for practitioners to apply in the handle of new expe riences. In effect, an individual member presents a challenge and has these views and perspectives provoked by questions of fellow practitioners, and share the process leading to appropriate actions. It is an application of the work of Kristina Gower (2002) that through the process of shared reflection, an avenue is set for the individual to focus on themselves and what they are grappling at work. It is argued in many writings that shared reflection when practiced effectively and with consistency, enables practitioners to be open with each other and capable of trust. I think it is most needed today where globalisation has caused upon a change in the social structures of communities and social workers are faced with new sorts of challenges. By mere process of jotting down thoughts in a descriptive manner, unloads the emotions held within. What is more is when it is read, it is an act of distancing from self, allowing one to see if our responses were appropriate to the situation. Shared Reflection Session Adapted from National Primary and Care Trust Development Programme 2008 Present your challenge, insight, issue, or question Set members question you constructively to challenge views and understanding, perceptions, and assumptions New insights, understanding or ideas Test actions in the workplace Draw conclusions and mark learnings. Integrate the new knowledge into the practice Bring results back to set. What worked? What did not? Why? Each time group reflection is carried out, a new interaction or form of reflection occurs, or individual reflection is deepened. The chart below depicts continues growth expected of dialogues amongst practitioners. Proper recording of the analyses, conflict and interaction must be ensured for future growth of the department. By and large, globalization altered the traditional roles in society that sense of community is hard to come by. The greater impact however falls on less developed nations where close family ties have tangible effects on income sources, equally personal growth. While conventional theory avers family as the fundamental social institution, it is opposed by the changing times. The present phenomenon sees the family unit split on a massive scale leading to less safer communities for the child. Because it is so, reflective practice intertwines with the practice of social work. Interactions in delicate matters of family, and in situations of discomfort, it is essential that social workers maintain reflective practice to unearth insights as much as for the interest of self preservation in pressing issues by constant self awareness. While practice is located within the ancient tradition of experiential learning and in the recently defined perspective of situated cognition, both return us to the basic comprehension that not all problems are of equal dimensions. What is more is not the scope or dimensions of the problem but the significance of the problem to the child we work with (Osterman, 1993). This is reinforced in the manuscript Changing Lives review of social work by Peter Lewis, where it relates the emphatic need for more reflective practice. Appointed director of childrens services at Haringey, a first response was to send off social work staff on reflective practice courses at the Tavistock Clinic (cooper, 2010). Of course, a huge obstacle to reflective practice and clearly widespread in England comes with the tightening budgets, even when studies have increasing shown the relevance of reflective practice as an essential part of social work decision making. That is the sheer volume of the work and its impact, as a social worker, one is stressed and overwhelmed that is likely to overly identify with a child at work or with the parents. As a result it becomes difficult to maintain objectivity and stand back. Kim Poupart (2010) relents that People get stirred up by child protection work. For example, if someone is forced to look at slides of abuse it is painful for them to see. Unless they can reflect about how upset and angry they feel they will be unable to manage their feelings in relation to the work and decisions they need to make. The study elaborates on the important elements of reflective practice which allows for a deeper understanding of: (1) The role emotion plays in decision-making, (2) Patterns finding the evidence for gut feelings, (3) Confirmation biases or reluctance to abandon a pre-formed opinion, (4) Attribution error on attributing behaviour to personality traits rather than the context, and (5) Hindsight error. While reflective practice in social work cannot be disguised, credence on personal attributes should be upheld. These personal attributes contributing to the perfection of reflective practice are: values, perception of the world, self-perception, emotional status and interaction with the external environment (Maree C, 2010). The observed skills leading toward such competencies are developed at early portions of the profession. Course curriculums have incorporated cognitive-structural theories, human development theories, and exhaustive study of postmodern writings on reflective practices in group and individually. Neil and Sue Thompson (2009) suggest that At the heart of reflective practice is the idea that our actions should be informed by a knowledge base that we engage with actively. In which case responses are not by routine or by habit but rather through sincere and considerate understanding of the situation faced, thus ensuring the practitioner sees beneath the surface of thing s. In conclusion, reflective practice contributes to professional development and in a manner quite difficult to measure. Particularly in my case, it was the source of great strength with the several difficult decisions and challenges unearthed in child protection work. I could honestly say that this case was a moral challenge since it compelled implementing a law that I do not think is entirely good. Similarly, we run the risk of reinforcing existing inequalities and potentially oppressive processes in the absence of proper reflection and reflective practice. In some organizations, this is seen to come in the way of work, especially to traditional bosses who think that adding processes is an upshot of not having enough work to do. Through reflective practice I come to appreciate All things equal, I strongly believe that it there are good choices and better outcomes for children when reflection is performed. I see things differently.

Do You Have the Power? :: Creative Writing Essays

Do You Have the Power?      Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   It all started in the interesting city of New York.   The smog ridden streets were filled with people.   On a quiet little street corner, there was a small shop owned by Harvey Goldstein.   Mr. Goldstein   was a well-to-do merchant. He traded in all sorts of imports, and was generally a moral man.   He did not buy goods from sweatshops nor did he ever cheat a customer.  Ã‚   At 1:31 P.M. on May 15, 1996, he stepped out of his shop on the Upper East Side of Manhattan to meet a man who dealt in Asian silk screens downtown.   He had been listening to traffic radio AM 530 and, deciding that traffic was too heavy, planned to take the subway.   Goldstein was a smart man, very smart, who had built his store and his fortune out of   blood, toil, tears, and sweat. Goldstein was also an upstanding member of the Jewish community whom everybody loved, but he never did anything extra, out of the ordinary, for anyone but himself.      Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   On the other side of town there was a new arrival to the city.   This man's name was Running Bear.   He was an American Indian who had gone to New York to seek his fortune; however, he soon fell upon hard times.   He had lived a life of monetary deprivation on the plains of Colorado, and had proceeded to New York by Amtrak with only a dollar and a dream.   Things did not go as planned, though; he could not find a job and had taken to panhandling and sleeping in the streets. His dreams, no doubt influenced by the fumes coming up from the sewer, were of money.   A good man who only wanted to work and make a decent living, he had gone to the welfare office a few blocks north of Goldstein's shop.   He was sent to the employment office downtown, and decided to take the subway.   No doubt, the welfare officials and social workers sent him away with a sad shrug and a sigh. They knew he was a simple man.      Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   The two men saw each other waiting for the same train downtown. Interestingly enough, they were the only two waiting for the subway car, as a terrorist group had threatened to bomb a train and New Yorkers had generally taken the threat seriously.   They looked at each other briefly, sized one another up, and got on the train. While on the train, Running Bear began fiddling with a hatchet;   tossing it up in the air over and over again in

Mens Rea

2 The elements of a crime: actus reus and mens rea Introduction The traditional starting point for the study of criminal law is the constituents of a criminal offence: actus reus (often referred to as the prohibited conduct, but more accurately described as the external elements of the offence) and mens rea (often referred to as the mental element, but more accurately described as the fault element). Commentators and students alike want to ? d consistency and certainty in the application and development of the criminal law, and most criminal law textbooks dealing with the elements of crimes try to state principles that the student should see consistently applied in later chapters covering speci? c offences. The main problem is that the offences have developed in a piecemeal fashion, exhibiting no underlying rationale or common approach. Thus in examining actus reus, the student might be covering an offence de? ned in modern terms, e. g. , by the Criminal Damage Act 1971, or in obscur e outdated language, e. . , in the Offences Against the Person Act 1861, or the de? nition of actus reus may arise from the common law, perhaps amended or augmented by statute, e. g. , murder. Similarly, when we examine our approach to mens rea, we can see little common ground. If the offence requires the prosecution to prove intention, this must generally be left to the jury without detailed guidance from the trial judge (R v Moloney [1985] 1 All ER 1025); but if recklessness is the issue, a direction spelling out to the jury what they must ? d may be required. If one looks at the development of the concept of recklessness one can see that, prior to the decision of the House of Lords in R v G [2003] 4 All ER 765, a case involving criminal damage would have involved a court in trying to assess whether the defendant was reckless according to the de? nition laid down in Metropolitan Police Commissioner v Caldwell [1981] 1 All ER 961. Following the abandonment of ‘Caldwell reckle ssness’ in R v G [2003] 4 All ER 765, the issue has been simpli? d so that a court now has to concentrate on whether or not the defendant was aware of the risk in question and if so, whether or not, in the circumstances known to the defendant, it was unreasonable for him to take the risk. The elements of a crime: actus reus and mens rea 9 If dishonesty is the mens rea (see Theft Acts 1968–1996) the jury must consider two speci? c questions (would ordinary people consider D dishonest? ; if so, did D realize that they would? ); but these are questions of fact for them to resolve (R v Ghosh [1982] 2 All ER 689).In other words, there are three different approaches in establishing the mens rea for different offences. A search for consistency is therefore a futile exercise! Students should therefore be aware that studying the chapters on actus reus and mens rea can produce a distorted impression of the criminal law. One is dealing with concepts in isolation and could form th e impression that these general principles are consistently applied. One particular criticism is that the criminal law is not consistent in applying objective or subjective tests for liability. Objective tests consider what the reasonable person would have foreseen.Subjective tests judge the defendant on the facts as he honestly believed them to be. There appears to be an absence of any underlying rationale and the offences develop independently of each other. One can understand why Sir Henry Brooke (former head of the Law Commission) and many others wish for codi? cation of some, if not all, of the criminal law (see [1995] Crim LR 911—‘The Law Commission and Criminal Law Reform’). Even established concepts that have been applied by the courts for many years, may suddenly come under attack and be interpreted differently by the judiciary.Thus the House of Lords in Attorney-General’s Reference (No. 3 of 1994) [1997] 3 All ER 936, reversed the Court of Appeal decision ([1996] 2 WLR 412), holding that the doctrine of transferred malice could not apply to convict an accused of murder when he deliberately injured a pregnant woman in circumstances where the baby was born alive but subsequently died. Lord Mustill criticized the doctrine as having no sound intellectual basis and involving a ? ction, although the Criminal Law Review disagrees with his view ([1997] Crim LR 830).In this chapter questions have been chosen to cover all major aspects of this area. There are some problem questions, but candidates should expect the essay questions in an exam to be selected from these topics. Essays are therefore included on the important aspects of mens rea: intention and recklessness. Question 1 The practice of leaving the issue of intention to the jury without any judicial guidance as to its meaning is unworkable and likely to produce inconsistent decisions. Discuss this statement with reference to decided cases. CommentaryThere have been so many i mportant decisions on this important aspect of criminal law, that it is always likely to be the subject of an examination question. 10 The elements of a crime: actus reus and mens rea Because the facts of R v Moloney [1985] 1 All ER 1025 are so well known, there is a temptation simply to regurgitate them with the House of Lords’ decisions. This must be resisted as there are many ingredients in the answer, which requires careful planning and organization. In summary, this is a question where it is quite easy to obtain a pass mark but dif? cult to obtain a high grade. Answer plan Mens rea †¢ Intention—de? nition †¢ Moloney [1985]—‘the golden rule’ †¢ Woollin [1998]—direction on intention †¢ Law Commission No. 218 Suggested answer Except with strict (or absolute) liability offences, in order for an accused to be found guilty of a criminal offence, the prosecution must prove that the accused committed the actus reus of the off ence with the appropriate mens rea. Mens rea generally signi? es blameworthiness, although in R v Kingston [1994] 3 All ER 353, the House of Lords con? rmed that the accused was guilty of an offence requiring the prosecution to prove intention, although he was morally blameless.Mens rea is the mental element, which varies from one offence to another; but generally, for the more serious offences, it comprises intention or recklessness, with intention being reserved for the most serious crimes. One would therefore think that, being of such fundamental importance, intention would be speci? cally de? ned and rigidly applied, but this is not the case. There have always been dif? culties with the concept of intention within the criminal law. What is it? How should it be de? ned? How do the prosecution prove it? How does the trial judge direct the jury?These issues have been the subject of much judicial and academic debate in recent years. Although the word ‘intention’ implies purpose or even desire, there have been many diverse de? nitions by the judiciary, and commentators have also identi? ed different types of intention. First, direct intent, where it was the accused’s purpose or motive to bring about a result. Thus in R v Steane [1947] 1 All ER 813, the accused, who assisted the enemy during the war, had his conviction quashed as the court decided that he did not intend to assist the enemy; he intended to protect his family, who would have been harmed had he not cooperated.Secondly, oblique intent, where the accused does not necessarily desire the result but foresees it as highly probable. Thus in Hyam v DPP [1974] 2 All ER 41, the House of Lords upheld a conviction for murder where the The elements of a crime: actus reus and mens rea 11 accused had set ? re to the victim’s house even though the accused’s purpose had been only to frighten the victim. Because there was evidence that the accused foresaw that death or grievous bodi ly harm was highly probable the House of Lords felt justi? d in concluding that her state of mind could be regarded as a form of intent (on this matter the law is now as set out in R v Woollin [1998] 4 All ER 103—see below). Thirdly, ulterior intent, where it must be shown that in intentionally doing one act the accused has a related purpose. Thus to be guilty of burglary under s. 9(1)(a) of the Theft Act 1968, it is necessary for the prosecution to prove that the accused, when deliberately entering a building as a trespasser, did so with a speci? c related purpose in mind, e. g. , to steal or commit criminal damage. It would not be suf? ient if the accused intentionally broke into the house with the sole purpose of sheltering from the weather. The terms speci? c and basic intent, are also used in respect of the defence of intoxication to distinguish between those offences where intoxication is permitted as a defence and those where it is not (see further DPP v Majewski [1976 ] 2 All ER 142). Although there is an overlap between intention on the one hand and motive and foresight on the other, and these latter concepts assist the jury in their deliberations on intention, it is clear that the concepts are not synonymous.Motive is the reason why a person acts, while intention is his or her mental awareness at the time of the act. Foresight can be evidence of intention, but it is not conclusive proof of it. Section 8 of the Criminal Justice Act 1967 states that a court shall not be bound in law to infer that the accused intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions, but ‘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’.The issue of intention was debated by the House of Lords in R v Moloney [1985] 1 All ER 1025 and R v Hancock and Shankland [1986] 1 All ER 641. In the former case, Moloney shot his stepfather from point blank range and was convicted of murder after the trial judge (following Archbold Criminal Pleading Evidence and Practice, 40th edn, para. 17–13, p. 995) directed the jury that: In law a man intends the consequence of his voluntary act: (a) when he desires it to happen, whether or not he foresees that it probably will happen, or (b) when he foresees that it will probably happen, whether he desires it or not.The House of Lords quashed the conviction on the basis that this was a misdirection, Lord Bridge stating that: the golden rule should be that, when directing a jury on the mental element necessary in a crime of speci? c intent (i. e. , intention), the judge should avoid any elaboration or paraphrase of what is meant by intent, and leave it to the jury’s good sense to decide whether the accused acted with the necessary intent, unless the judge is convinced that, on the facts and having regard to the way the case has been presented to the jury in evidence and 2 The elements of a crime: actus reus and mens rea argument, some further explanation or elaboration is strictly necessary to avoid misunderstanding. Although the decision may be criticized on the ground that their Lordships missed a golden opportunity to de? ne intention, it is in keeping with the modern trend of leaving more and more issues to the jury, especially the meaning of words in common use. For example, Brutus v Cozens [1972] 2 All ER 1297 (insulting); R v Feely [1973] 1 All ER 341 (dishonestly).This decision was followed by the House of Lords’ ruling in R v Hancock and Shankland, where Lord Scarman also made the point that if intention required a detailed direction it was best to leave this to the discretion of the trial judge who would have had the bene? t of hearing all the witnesses and gauging the ability of the jury. He added that the trial judge could not do as Lord Bridge suggested and simply direct the jury to consider two questions: ? st, was death or really serious injury in a murder case a natural consequence of the defendant’s voluntary act? ; secondly, did the defendant foresee that consequence as being a natural consequence of his act? —further instructing them that if they answer ‘Yes’ to both questions it is a proper inference for them to draw that the accused intended that consequence. Lord Scarman stated that the trial judge must refer to the concept of probability—the more probable the consequence, the more likely the accused foresaw it and intended it.Despite clear House of Lords’ dicta to the contrary, the Court of Appeal in R v Nedrick [1986] 3 All ER 1 did lay down some guidelines to the effect that the jury should not infer intention unless they considered that the accused foresaw the consequence as a virtual certainty. However, this decision has attracted criticism, and the Court of Appeal in R v Walker and Hayle s [1989] 90 Cr App R 226 stated ‘we are not persuaded that it is only when death is a virtual certainty that the jury can infer intention to kill’. Nevertheless, the status of Nedrick was con? med by the House of Lords’ discussion in R v Woollin [1998] 4 All ER 103. The House, stating that where the simple direction was not enough, the jury should be further directed that they were not entitled to ? nd the necessary intention unless they felt sure that death or serious bodily harm was a virtually certain result of D’s action (barring some unforeseen intervention) and, that D had appreciated that fact. This decision also illustrates one of the dif? culties of the present approach, i. e. , when is the issue of intention so complicated as to warrant a detailed direction?In R v Walker and Hayles, the Court of Appeal decided that ‘the mere fact that a jury calls for a further direction on intention does not of itself make it a rare and exceptional case re quiring a foresight direction’. On the other hand, in R v Hancock and Shankland, the House of Lords con? rmed that the trial judge was right to give a detailed direction, even though the content of the direction was wrong. A further problem is that different juries may have different ideas as to what constitutes intention, some insisting on purpose being necessary, while others are prepared to accept that only foresight of a probable consequence is required.There is clearly the The elements of a crime: actus reus and mens rea 13 risk of inconsistent decisions and it is therefore not surprising that the Law Commission (Nos 122 and 218) have recommended that the following standard de? nition of intention be adopted: a person acts intentionally with respect to a result when (i) it is his purpose to cause it; or (ii) although it is not his purpose to cause that result, he knows that it would occur in the ordinary course of events if he were to succeed in his purpose of causing so me other result. Question 2 ‘Mens rea is, by de? nition, the defendant’s state of mind. Discuss the accuracy of this statement using case law to support your argument. Commentary This question requires examination of some of the assumptions made about mens rea and the current trends in judicial thinking. Candidates would be expected to consider the main forms of mens rea and the extent to which courts are required to take an objective or subjective view of fault. Although ‘Caldwell recklessness’ has now been effectively consigned to legal history (for the time being at least) a good answer will need to show an awareness of that decision and its impact on the mens rea debate.Consideration also needs to be given to the issue of mistake and its relationship with mens rea. Finally, the answer should encompass some consideration of negligence as a form of mens rea and the extent to which its use accords with notions of subjective fault. Answer plan †¢ The n ature of mens rea †¢ Intention—R v Woollin— House of Lords’ decision †¢ The recklessness debate R v G [2003]—abandoning Caldwell †¢ The treatment of mistake and its effect on mens rea—DPP v Morgan [1976] †¢ Killing by gross negligence—whether objective or subjective 4 The elements of a crime: actus reus and mens rea Suggested answer Although mens rea translates literally as ‘guilty mind’, relying on this as the meaning given to that term in modern criminal law is likely to lead to error. This is because a defendant may be found to have mens rea even though he himself has not acted with the intention of committing an offence, or even with the awareness that this might be the result. The better approach is to regard mens rea as denoting the fault element that the prosecution has to prove.In the majority of cases this will involve proof of some positive state of mind on the part of the accused, but in other case s it may be enough to show that the accused failed to advert to something that would have been obvious to the reasonable person. The two most important fault elements used in modern criminal law are intention and recklessness. It can now be said that, as far as these two forms of mens rea are concerned, liability cannot be established without evidence as to what the defendant foresaw when he committed the acts causing the prohibited results.Exactly what it is that the defendant has to have foreseen, and how much foresight he must be shown to have had, are questions that go to the core of the debate relating to where the dividing line between different types of subjective mens rea should be drawn. The modern de? nition of intention can be derived from a number of House of Lords’ decisions, notably R v Moloney [1985] 1 All ER 1025 and R v Woollin [1998] 4 All ER 103. A defendant cannot be guilty of murder unless he is proved to have acted with intent to kill or do grievous bodi ly harm.Where a direction on intent is deemed necessary, a jury should be instructed that they should consider the extent to which the defendant foresaw death or grievous bodily harm resulting from his actions. Only where there is evidence that he foresaw either consequence as virtually certain would it be safe for a jury to conclude that a defendant therefore intended either of those consequences. The key here is foresight. Section 8 of the Criminal Justice Act 1967 makes clear that foresight is a subjective concept—i. e. it is based on what the defendant actually foresaw— not on what he ought to have foreseen, or indeed what the reasonable person would have foreseen had he been in the defendant’s shoes. Taken together, the de? nition of foresight in the 1967 Act, and the House of Lords’ ruling in Woollin ensure that where intention is the required mens rea, there can be no doubt that it will be based on the defendant’s state of mind—i. e. , a subjective approach will be adopted. The rationale for this is fairly obvious—it is hard to describe a defendant as having intended a consequence if there is no evidence of it having occurred to him.Even where there is such evidence, if the possibility of the consequence occurring has only ? eetingly crossed his mind it would still be absurd to say he intended it. The law, therefore, requires a very high degree of foresight before a defendant’s state of mind is labelled as having been intentional. Recklessness, by contrast, implies risk taking, as opposed to the defendant foreseeing a consequence as a certainty. Here there has been great controversy over the past few The elements of a crime: actus reus and mens rea 15 decades as to the right approach to the determination of fault.The traditional approach to recklessness as a form of mens rea very much re? ected the view that mens rea had to be based on the defendant’s state of mind. In R v Cunningham [1957] 2 All ER 412, the Court of Appeal held that a defendant was reckless only if he took an unjusti? able risk and was at least aware of the risk materializing. The key point about this approach to recklessness was that there would be no liability if the risk never occurred to the defendant. Subsequently, during the 1980s a contrary view held sway, following the House of Lords’ decision in Metropolitan Police Commissioner v Caldwell [1981] 1 All ER 961.D’s conviction for criminal damage being reckless as to whether life would be endangered, contrary to s. 1(1) of the Criminal Damage Act 1971, was upheld on the basis that he had created an obvious risk that property would be destroyed or damaged; and had either given no thought to the possibility of there being any such risk, or had recognized that there was some risk involved and had nevertheless gone on to do it. The ‘not thinking’ formulation of recklessness here, clearly envisaged liability being imposed ev en though the risk in question had not occurred to the defendant.Whilst this might have been a desirable policy goal—it made it easier for the prosecution to secure convictions—it threw up many dif? cult issues. First, what of the defendant who did not think of the risk because it would not have occurred to him even if he had stopped to think? In Elliot v C (A Minor) [1983] 2 All ER 1005, a 14-year-old schoolgirl of low intelligence, who was tired and hungry, spilt some in? ammable spirit and then dropped a lighted match on the wooden ? oor of a garden shed. She was charged under s. 1(1) of the Criminal Damage Act 1971.It was argued that she did not foresee the risk of ? re, nor would she had she addressed her mind to the possible consequences of her action. Although Goff LJ stated that a test for recklessness which allowed the court to take into account the individual characteristics of the accused had much merit (a subjective approach), he felt bound by the doctrine of precedent (at that time) to follow Caldwell, and therefore concluded that the defendant should have convicted on the objective test basis, i. e. , whether the risk would have been obvious to a reasonable man.Secondly, there was the argument that ‘Caldwell recklessness’ was not acceptable as a form of mens rea because it was not based on the defendant’s state of mind. In R v Reid [1992] 3 All ER 673, Lord Keith observed by way of response that: ‘Absence of something from a person’s state of mind is as much part of his state of mind as is its presence. Inadvertence to risk is no less a subjective state of mind than is disregard of a recognised risk. ’ What he meant by this was that even with ‘Caldwell recklessness’, the court had to consider the defendant’s state of mind.But, it is submitted, this is a piece of judicial sophistry, as all that was required was for the court to examine the defendant’s state of mind an d, on ? nding ‘no thought’, conclude that he had been reckless provided the risk would have been obvious to the reasonable prudent bystander. Whilst many might have applauded Lord Diplock’s efforts to penalize thoughtlessness in terms of a social policy initiative, the real question was whether he was right to 16 The elements of a crime: actus reus and mens rea ursue this via a radical judicial reinterpretation of the term ‘recklessness’. It is signi? cant that Parliament intervened shortly after Caldwell to reform the offence of reckless driving (and therefore causing death by reckless driving) by replacing it with the offence of dangerous driving—see the Road Traf? c Act 1991. The effect of this was to make clear that the offence could now be committed without any form of mens rea that required reference to the defendant’s state of mind. Recklessness was replaced, as a fault element, by the term ‘dangerous’.Whilst it coul d and was argued that recklessness implied some conscious risk-taking by the accused, there was no doubt that ‘dangerousness’ as a fault element rested entirely upon an objective assessment of the defendant’s conduct. In other words a defendant could drive dangerously because he had a badly secured load on the back of his trailer—there was no need for him to be aware of this. In summary this suggests that Parliament liked the idea of criminal liability based on failure to think about risk, but was not comfortable with the idea that ‘traditional’ mens rea terms like ‘recklessness’ might be used to describe it.As far as recklessness is concerned the subjectivist argument has found favour again, as evidenced by the House of Lords’ decision in R v G [2003] 4 All ER 765, where it was held that a defendant could not be properly convicted under s. 1 of the Criminal Damage Act 1971 on the basis that he was reckless as to whether pr operty was destroyed or damaged when he gave no thought to the risk and, 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.Lord Bingham observed that recklessness should at least require a knowing disregard of an appreciated and unacceptable risk of, or a deliberate closing of the mind to, such risk. In his view it was not clearly blameworthy to do something involving a risk of injury to another if one genuinely did not perceive the risk. R v G re? ects a general judicial trend in favour of subjectivity, as evidenced in decisions such as B v DPP [2000] 1 All ER 833.Indeed, the high watermark of this approach to fault was the House of Lords’ decision in DPP v Morgan [1976] AC 182, where it was held that if a defendant made a genuine mistake of fact—such as wrongly believing that a woman was consenting to sexual intercourse, he had to be judged on the facts as he believed them to be, not as the reasonable person would have believed them to be. Lord Hailsham made it clear that there was no room either for a ‘defence’ of honest belief or mistake, or of a defence of honest and reasonable belief or mistake.The reasonableness of the defendant’s honest belief was simply a factor relating to its credibility. The mental element in the offence of rape has now been modi? ed by the Sexual Offences Act 2003, so that rape is effectively now an offence with a fault element based on negligence. The rationale of DPP v Morgan survives, however, at common law to the extent that a defendant should normally be judged on the facts as he honestly believes them to be. As has been noted above in the case of dangerous driving, fault elements that do not require reference to the defendant’s state of mind are used.At common law this can be seen in the offence of killing by gross negligence. In R v Adomako [1994] 3 WLR 288, Lord Mackay LC explained that liability would be established if the prosecution could prove that the defendant’s conduct departed from the proper standard of care incumbent The elements of a crime: actus reus and mens rea 17 upon him, thereby creating a risk of death, and involved such a departure from acceptable standards of care as to deserve the stigma of criminalization.As was made clear in Attorney-General’s Reference (No. 2 of 1999) [2000] 3 All ER 182, evidence of the defendant’s state of mind might be useful in guiding a jury as to whether or not the negligence was gross, but this fault element can be made out without any direct evidence as to the defendant’s state of mind. Whilst this may seem to run counter to the trend in favour of subjectivity it should be remembered that it serves a useful social purpose in making it easier to impose criminal liability on companies that kill.In summary, therefore, it is undoubtedly true to say that mens rea normally does involve an examination of the def endant’s state of mind to ascertain a degree of awareness of the consequences of his actions. The law will, however, allow departures from this where the social utility of doing so outweighs the need to ensure the fairness to the defendant that ensues from adopting a subjective approach to fault. Question 3 You are told that the (? titious) Ancient Book Act 2009 has just received the Royal Assent and that s. 1 provides, ‘It shall be an offence to destroy any book printed before 1800’. Discuss the criminal liability of each party (in relation to the 2009 Act) in the following situation. Arthur owns 200 books, which he thinks are worthless. He is concerned in case any of the books were printed before 1800 and consults Ben, an expert on old books, who assures him that all the books were printed long after 1800.Arthur destroys the books and is now horri? ed to discover that three of them were printed in 1750. Commentary This is an unusual question which has caused st udents dif? culties, with many writing about the offence of criminal damage. This is a mistake as the question requires a detailed analysis of the mens rea requirement of the Ancient Book Act 2009, and in particular analysis of the concept of strict liability. In a survey by Justice referred to in an article by A. Ashworth and M.Blake, ‘The Presumption of Innocence in English Criminal Law’ [1996] Crim LR 306, it is estimated that in over one half of criminal offences either strict liability is imposed, or the prosecution have the bene? t of a presumption. It is obviously an important topic, and popular with examiners! A good answer will require a detailed consideration of the possibility of this offence being one of strict liability and the effect of this. Candidates should also consider the position if the courts decide that intention or recklessness is the appropriate mental state. 8 The elements of a crime: actus reus and mens rea Answer plan †¢ Strict liability —Sweet v Parsley [1969] †¢ Presumption of mens rea—B v DPP [2000] †¢ The exceptions †¢ Recklessness †¢ Mistake—Morgan [1976] †¢ Ben’s liability under the Serious Crime Act 2007 Suggested answer The ? rst point to note is that s. 1 of the Ancient Book Act 2009 is silent as to the mens rea requirement of the offence. This could mean that the offence is one of absolute liability (i. e. , strict liability in the sense that no mens rea whatsoever is required).Alternatively it could be a strict liability offence in the sense that intention, recklessness or negligence is only required as regards one or more elements of the actus reus. The imposition of absolute liability may be very harsh on the defendant. For example, in Pharmaceutical Society of Great Britain v Storkwain [1986] 2 All ER 635, the House of Lords upheld the conviction of a pharmacist who had given drugs to a patient with a forged doctor’s prescription, although the court found the pharmacist blameless.Whilst the decision demonstrates the inherent unfairness of strict liability, it can be justi? ed on the basis that the misuse of drugs is a grave social evil and therefore should be prevented at all costs. The ? rst case of statutory strict liability was R v Woodrow (1846) 15 M & W 404, where the accused was found guilty of being in possession of adulterated tobacco, even though he did not know that it was adulterated. Many early decisions revealed an inconsistent approach as the courts were trying to interpret old statutes in ascertaining the will of Parliament.However, Lord Reid in the House of Lords’ decision in Sweet v Parsley [1969] 1 All ER 347 laid down the following guidelines: (a) Wherever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, words importing mens rea must be read into the provision. (b) It is a universal principle that if a penal provision is reasonabl y capable of two interpretations, that interpretation which is most favourable to the accused must be adopted. (c) The fact that other sections of the Act expressly require mens rea is not in itself suf? ient to justify a decision that a section which is silent as to mens rea creates an absolute offence. It is necessary to go outside the Act and examine all relevant circumstances in order to establish that this must have been the intention of Parliament. The elements of a crime: actus reus and mens rea 19 So in Cundy v Le Coq (1884) 13 QB 207, a publican was found guilty of selling intoxicating liquor to a drunken person under s. 13 of the Licensing Act 1872, even though the publican did not know and had no reason to know that the customer was drunk; whereas in Sherras v De Rutzen [1895] 1 QB 918, a publican was not guilty under s. 6(2) of the Licensing Act 1872 of serving alcohol to a police constable while on duty when the accused did not know or have reason to know that the polic e constable was on duty. The former case was held to be an offence of strict liability, whereas in the latter, in order to obtain a conviction, the prosecution had to prove mens rea on behalf of the publican, which they were unable to do. Despite the fact that there is a presumption in favour of mens rea when a statute is silent, the courts have been prepared to rebut this presumption on many occasions.The leading case on this point is Gammon v Attorney-General for Hong Kong [1985] AC 1, where Lord Scarman set out the applicable principles. If the offence is truly criminal in character the presumption is particularly strong, but it can be displaced where the statute is concerned with an issue of social concern. Thus, in Gammon, as the accused’s activities involved public safety, the Privy Council were prepared to hold that the legislature intended the offence to be one of strict liability. On analysis these principles appear inconsistent. It could be argued that all crimes by de? ition are grave social evils, yet if the offence is truly criminal in character, strict liability does not apply. In practice, the courts have adopted a ? exible approach, but it is recognized that certain spheres of activity are always likely to attract the conclusion that this is an offence of strict liability. Thus in? ation (R v St Margaret’s Trust Ltd [1958] 2 All ER 289), pollution (Alphacell Ltd v Woodward [1972] 2 All ER 475), and dangerous drugs (Pharmaceutical Society of Great Britain v Storkwain, above) are traditional areas where strict liability has been imposed.However, it does seem in recent years that the category of grave social concern is expanding to encompass new social activity to include acting as a director whilst disquali? ed (R v Brockley [1994] Crim LR 671) and unauthorized possession of a dangerous dog (R v Bezzina [1994] 1 WLR 1057). However, the House of Lords have again emphasized the need for the prosecution to prove mens rea in B (A minor) v DPP [2000] 1 All ER 833, where Lord Hutton stated (at p. 855), ‘the test is not whether it is a reasonable implication that the statute rules outmens rea as a constituent part of the crime—the test is whether it is a necessary implication’.Further in R v Lambert [2001] 3 All ER 577, the House held that although s. 28 of the Misuse of Drugs Act 1971 required the defence to prove a defence, this only meant introduce evidence of, rather than establish a defence on the balance of probabilities. In view of these developments, it is submitted that it would be most unlikely for s. 1 of the Ancient Book Act 2009 to be an offence of strict liability, and therefore Arthur will only be guilty if the prosecution can establish that he had the necessary mens rea.As Rix LJ observed in R v M [2009] EWCA 2615, even if the provision in question is silent as to mens rea and other provisions in the statute expressly require it, the presumption in 20 The elements of a crime: actus reus and mens rea favour of mens rea will not be rebutted unless the circumstances are such as to compel such a conclusion. If the court were to decide that the offence required the prosecution to prove intention, it is submitted that Arthur would not be convicted.He obtained the opinion of Ben, an expert and clearly did not desire or even foresee the consequence that protected books would be destroyed. Arthur has made a mistake, and even if an accused makes an unreasonable mistake, in accordance with the House of Lords’ decision in DPP v Morgan [1976] AC 182, he is, in the absence of any clear statutory intent to the contrary, entitled to be judged on the facts as he believed them to be. If the court decides that the offence could be committed recklessly, it would still be very dif? ult for the prosecution to establish the appropriate mens rea. It is almost certainly the case that subjective recklessness would have to be proved—i. e. , the prosecution must show that the accused foresaw the consequence and took an unjusti? ed risk (R v Cunningham [1957] 2 All ER 412 and R v G [2003] 4 All ER 765) (although technically the latter only deals with the issue of recklessness in relation to criminal damage). As Arthur sought the opinion of an expert it is dif? cult to see how it could be argued that he was consciously taking an unjusti? ed risk.It is therefore submitted that Arthur could be guilty of the offence only if the court decides that s. 1 of the Ancient Book Act 2009 creates an offence of strict liability. Turning to Ben’s liability, if he genuinely believed the books to be of post-1800 vintage and the courts interpret the offence as requiring at least recklessness on this issue, he could not be convicted as an accomplice as he would lack the necessary mens rea. If the offence were held to be one of strict or absolute liability Ben could only be convicted as an accomplice if he knew of the facts that constituted the offence—i. . he knew the books dated from before 1800—see Johnson v Youden [1950] 1 KB 544. Alternatively, if Ben knew or believed the books to date from before 1800 he could be charged with either: (i) doing an act capable of encouraging or assisting the commission of an offence intending to encourage or assist its commission contrary to s. 44 of the Serious Crime Act 2007; or (ii) doing an act capable of encouraging or assisting the commission of an offence believing that the offence will be committed and that his act will encourage or assist its commission contrary to s. 5 of the Serious Crime Act 2007. The act in question would be giving advice to Arthur he knew to be wrong. The fact that Arthur, in destroying the books, might have acted without mens rea will not absolve Ben. If the offence under the Ancient Book Act 2009 is construed as requiring fault it will be suf? cient for the prosecution to prove that Ben’s state of mind was such that, had he destroyed the books, he wou ld have acted with the degree of fault required for the full offence; see s. 47(5)(a)(iii) of the 2007 Act.If the 2009 Act is a strict liability offence, Ben can be convicted under the Serious Crime Act 2007, provided he believed that the books dated from before 1800 or was reckless as to whether or not they did. The elements of a crime: actus reus and mens rea 21 Question 4 Gloria, Wood’s eccentric aunt, aged 57, was invited to stay with Wood and his girlfriend Mary at their property on the coast. It was agreed that Gloria would stay for three weeks and would occupy ‘the lodge’ in the garden of the Wood’s house some 30 yards away. Gloria also agreed to pay ? 0 to cover the electricity she would use in the lodge. Everything went well for two weeks, with all three sharing meals at the house. However, a change of mood then came over Gloria who decided that she no longer wanted to have meals with Wood and Mary. Gloria spent more and more time by herself at th e lodge. After 20 days of the holiday Gloria, whose physical condition had visibly deteriorated, announced that she refused to leave the lodge and was going to stay there the rest of the winter. This so enraged Wood and Mary that the next day they told her to leave immediately, which she did.Six hours later, at 11 pm, Gloria rang their bell pleading to be let in as she was cold and hungry and had nowhere else to go. Wood and Mary refused, and during that night Gloria was taken to hospital suffering from hypothermia. While in hospital, Gloria fell unconscious and was placed on a life support machine. After ? ve days she was correctly diagnosed by Dr Spock as being in a persistent vegetative state with no hope of recovery. He accordingly disconnected the machine. Discuss the criminal responsibility (if any) of Wood and Mary. CommentaryThe sensible way to tackle this question is to start with an examination of failure to act as a basis for liability. The key aspect of this will be the comparison of the given cases with earlier decisions such as R v Instan and R v Stone and Dobinson. Care must be taken to distinguish between the facts of those cases and the current problem. The facts of the question require an examination of at least three bases for liability: blood relationship, reliance, and creating a dangerous situation. Do not fall into the trap of thinking that the discussion of omission is all that is required.Candidates must establish a causal link between the omission and the death—in fact and in law. Finally, candidates will need to consider the most appropriate form of homicide. Candidates are advised not to waste valuable time considering murder or unlawful act manslaughter—they are clearly not relevant on the facts. In relation to killing by gross negligence, candidates need to devote some time to the issue of duty of care—note that this covers very similar ground to the discussion relating to liability for omission—but the decision in R v Evans is particularly helpful and relevant here.Note: Candidates are not required to consider the responsibility of Dr Spock. 22 The elements of a crime: actus reus and mens rea Answer plan †¢ Is there a causative omission? †¢ Examine the bases for liability for failing to act—statutory, contractual, and common law †¢ Distinguish R v Instan and R v Stone & Dobinson †¢ Consider R v Miller and R v Evans †¢ Consider killing by gross negligence †¢ Can a duty of care be established? †¢ Is the degree of fault required made out on the facts? Suggested answer The ? st issue to be resolved is whether or not Wood and Mary can be said to have caused the death of Gloria. As there is no positive act by either of them that causes death, the court would need to investigate whether or not liability can be based on the failure of either or both of them to prevent Gloria’s death. The question as to whether an omission, as opposed to an act, can actually cause a consequence is a moot point. Traditionally, the criminal law has always drawn a clear distinction between acts and omissions, being loath to punish the latter.Other European countries—e. g. , Greece, France and Germany—do not exhibit the same reluctance, and there is dispute as to whether the English approach is correct. See in particular the different views of Professors A. Ashworth (1989) 105 LQR 424 and G. Williams (1991) 107 LQR 109. However, apart from the numerous statutes that impose a duty to act, e. g. , s. 170 of the Road Traf? c Act 1988, it appears that the common law will impose a duty to act only in very limited circumstances.There can be no criminal liability imposed on Wood and Mary in respect of their failing to care for Gloria unless the prosecution can establish that they were under a positive legal duty to care for her. Such a duty can be imposed by statute, but that is clearly not the case here. Similarly a legal duty to act can arise from a contract between the parties. For example in R v Pittwood (1902) 19 TLR 37, where the defendant, a railway gate operator, was found guilty of manslaughter when a person was killed crossing a railway line as a result of the defendant leaving the gate open when a train was coming.In the present case it could be argued that there was a contractual relationship, in that Gloria agreed to pay for her electricity and was in occupation of the lodge, but it is hard to see how any positive duty to care for Gloria can be implied—and in any event it would be argued that the contract was only for the initial three-week period, and that it was a purely domestic arrangement not intended to give rise to legally enforceable obligations. In respect of Wood it could be argued that he was under a common law duty to care for Gloria because she was a relative.Where the relationship is that of parent and child the common law has had little dif? culty in identifying a positive l egal duty of care so The elements of a crime: actus reus and mens rea 23 that failing to act can result in liability where it causes harm; see R v Gibbins and Proctor (1918) 13 Cr App R 134. In R v Instan [1893] 1 QB 450, liability for manslaughter was imposed upon a niece who failed to care for her aunt with whom she was living, having been given money by the aunt to supply groceries. Liability in Instan was largely based on the existence of a blood relationship between the parties.This would seem to suggest that, at least in the case of Wood, there might be a common law duty to act. It is submitted that the present case can be distinguished from Instan. In Instan the defendant actually occupied the same house as the deceased, and had expressly undertaken the task of purchasing food for her, which she subsequently failed to do, knowing well that her aunt could not fend for herself. In the present case Gloria decided for herself that she wanted to stay in the lodge alone, thus raisi ng the question of whether Wood was obliged to do anything more for her than he had been doing during the ? st two weeks of her stay. Furthermore the evidence suggests that it was refusing to readmit Gloria after she had been told to leave that led to her death—raising the question of whether Wood was under any obligation to readmit Gloria. The much more promising argument for the prosecution is that a positive legal duty to act at common law arose in respect of both Wood and Mary because they had allowed a relationship of reliance to develop between themselves and Gloria. The key authority here is R v Stone and Dobinson [1977] QB 354.In that case the Court of Appeal upheld convictions for killing by gross negligence on the basis that the defendants had admitted the deceased to their house and had attempted to care for her. They then failed to discharge their duty adequately and failed to summon any assistance in discharging that duty. The court stressed that the duty to act arose not simply because of a blood relationship between one of the defendants and the deceased, but because of the reliance relationship.It could be argued that in allowing Gloria to stay Wood and Mary allowed a relationship of reliance to develop—but the present case can be distinguished from Stone and Dobinson on the grounds that Wood and Mary placed a time limit on Gloria’s stay, and Gloria left of her own volition. Thus the argument as to whether or not there is any liability for failing to act is ? nely balanced. The prosecution could run an alternative argument on the basis that when Gloria begs to be readmitted to the house Wood and Mary are aware that their expulsion of Gloria has created a dangerous situation.There is evidence that Gloria’s physical condition had visibly deteriorated. Gloria was cold, hungry, and had nowhere to go. There was evidence that Gloria was eccentric. Applying R v Miller [1983] 1 All ER 978, where the House of Lords upheld the accused’s conviction for criminal damage where he had inadvertently started a ? re and then, when he realized what he had done, simply left the building without making any attempt to prevent the ? re spreading or to call the ? re brigade, it could be argued that by failing to offer Gloria shelter, Wood and Mary committed culpable omission that caused Gloria’s death.For the Miller principle to apply, the prosecution would have to show that the defendants were both aware that their expulsion of Gloria had created a dangerous situation. On the facts this should not be too dif? cult. 24 The elements of a crime: actus reus and mens rea Assuming that the failure to care for Gloria, or the refusal to readmit her to the house, can form the basis of liability, the prosecution will have to show that this omission caused Gloria’s death. It is not necessary for the prosecution to prove that the omission was the sole or main cause, merely that it contributed signi? antly to the victim’s death (R v Cheshire [1991] 3 All ER 670). The accused could argue that the doctor’s turning off the life support system constituted a novus actus interveniens, breaking the chain of causation; but this argument was rejected by the House of Lords in R v Malcherek; R v Steel [1981] 2 All ER 422, where Lord Lane CJ stated that ‘the fact that the victim has died, despite or because of medical treatment for the initial injury given by careful and skilled medical practitioners, will not exonerate the original assailant from responsibility for the death’.It is therefore clear that the medical treatment, of itself, will not be held to have broken the chain of causation in law. Wood and Mary could be charged with manslaughter on the basis of killing by gross negligence, which, unlike unlawful act manslaughter, can be based on an omission; see R v Lowe [1973] 1 All ER 805. The key authority regarding killing by gross negligence is the House of Lordsâ⠂¬â„¢ ruling in R v Adomako [1994] 3 All ER 79, where their Lordships held that an accused would be guilty of manslaughter if the following four conditions were satis? d: (i) the accused owed a duty of care to the victim; (ii) that duty was broken; (iii) the conduct of the accused was grossly negligent; (iv) that conduct caused the victim’s death. In some cases the existence of a duty of care will be self-evident, for example doctor and patient, parent and child etc. Notwithstanding the decision in R v Instan, it should not be assumed that all familial relationships will give rise to a legal duty of care, and in any event this would not assist as regards Mary. Signi? antly, the Court of Appeal decision in R v Evans [2009] EWCA Crim 650, indicates that a duty of care will be recognized by the courts in what might be referred to as ‘R v Miller’ situations— i. e. , where the defendant has created a dangerous situation and is aware, or ought reasonably to be a ware, that this is the case. Allowing Gloria’s physical condition to deteriorate and then not allowing her back into the house might provide the evidential basis for this. The trial judge in the present case should direct that they can conclude that a duty of care existed provided they ? d certain facts established—and the trial judge should make clear to the jury what those key facts are. It is submitted that there is suf? cient evidence for the jury to conclude that a duty of care existed. The breach of the duty of care is evident in their not helping Gloria and not attempting to obtain any alternative assistance for her—they did not even call the police to The elements of a crime: actus reus and mens rea 25 advise them of the problem. The issue of whether this breach of the duty of care can be said to have caused the death of Gloria has already been considered above.The remaining live issue, therefore, is that of gross negligence. Following the House of Lords ’ decision in R v Adomako the jury will have to determine whether or not the accused’s conduct: (a) departed from the proper standard of care incumbent upon them; (b) involved a risk of death to the victim; (c) was so grossly negligent that it ought to be regarded as criminal. As later cases such as R v Mark and another [2004] All ER (D) 35 (Oct) indicate, actual foresight of risk of death by the accused is not required.The test for mens rea is objective—does the jury regard the act or omission leading to the breach of duty as being so culpable that it should be labelled as ‘criminal’? Evidence that the defendants knew they would cause harm by not acting is admissible to establish the required fault, but is not essential. Similarly, evidence that Mary and Wood had never thought about what might happen to Gloria could be admissible to show that they should not be labelled as criminals, but such evidence would not preclude a ? nding by the jury that t hey had acted, or failed to act, in a manner that was grossly negligent. Question 5Critically analyse with reference to decided cases, the reasons why the development and application of the criminal law is often unpredictable and inconsistent. Commentary Occasionally an exam will contain a question that requires candidates to take a wider view of the criminal law. This is such a question. Candidates cannot simply home in on a speci? c area and cover it in detail. Candidates must try to think of instances throughout the syllabus that can be used in your arguments to answer the question. Avoid the common mistake of interpreting the question to read ‘Choose one area of the criminal law where there are dif? ulties and write all about them’! This question has been included as it enables candidates to think more widely about the role of the criminal law within the legal system and society as a whole. Providing a good answer requires the ability to take a broad view of the syl labus—something candidates who revise topics in isolation are not always able to do. 26 The elements of a crime: actus reus and mens rea Answer plan †¢ Constant change—R v R [1991] †¢ Lack of code—Caldwell [1981], Morgan [1975] †¢ Logic v policy †¢ Role of House of Lords—Clegg [1995] Suggested answer The development of many areas of law follows a consistent and logical course.The basic foundations, their concepts and application are accepted by the vast majority, and only ? ne tuning or adjustments of these principles are required to meet new situations. Unfortunately this cannot be said about criminal law, where the debate about fundamental concepts—such as whether recklessness should be interpreted subjectively or objectively; whether a mistake of fact relied upon by a defendant should have to be one that a reasonable person would have made; whether duress should be a defence to a charge of murder—is still ongoing. One of the problems is that the criminal law is subject to constant change.It has to adapt to cover new phenomena, such as stalking, drug abuse, and internet fraud and to re? ect society’s changing social and moral standards. As the House of Lords stated in R v R [1991] 4 All ER 481, abolishing the husband’s marital rape exemption, the common law is capable of evolving in the light of social, economic and cultural developments. In that case the recognition that the status of women had changed out of all recognition from the time (Hale’s Pleas of the Crown 1736) when the husband’s marital rape exemption was initially recognized was long overdue. Similarly, the criminal law once re? cted the moral position that it was a crime to take one’s own life. Failure in such an enterprise was prosecuted as attempted suicide and could be punished. However, attitudes softened and it was recognized that such a person needed help, not a criminal trial; the law was con sequently amended by the Suicide Act 1961. The 1960s saw similar changes in respect of the law relating to homosexuality and abortion. Changes in the law can also result from a shift in ideology on the part of an elected government, or as a response to new threats to the safety and stability of society—for example legislation to combat terrorism.There is no doubt that the development and application of the criminal law would be more consistent and predictable if the courts exhibited a more uniform approach to its development. The problem is illustrated by two House of Lords’ decisions: Metropolitan Police Commissioner v Caldwell [1981] 1 All ER 961, where an objective approach to recklessness was used, and DPP v Morgan [1975] 2 All ER 347, where a subjective approach to mistake was applied. Why was it that liability for recklessness was imposed on an objective basis, but where a defendant made a mistake of fact heThe elements of a crime: actus reus and mens rea 27 was entitled (subject to any statutory provision to the contrary) to be judged on the facts as he honestly believed them to be? Commentators may argue that two different areas of the criminal law were being considered, criminal damage and rape (note that the law has since been changed as regards rape by the Sexual Offences Act 2003), but the inconsistency is still stark. At least in so far as recklessness is concerned, the House of Lords has now embraced the notion of subjectivity again in R v G [2003] 4 All ER 765, but the very fact that the legal de? ition of such a basic concept can change so much in the space of 20 years is itself startling. The Law Commission has long argued that the solution lies in codifying the law (see Law Com. No. 143) on the basis that: ‘the criminal law could then exhibit a uniform approach to all crimes and defences’. All other major European countries (France, Germany, and Spain) have a detailed criminal code, with a uniform approach providing a starting point for interpreting the law. The criminal law in England and Wales has developed in a piecemeal fashion, with one offence’s development showing little consistency with another’s.So often it is dif? cult to say what our law actually is, even before lawyers start to debate how it should be applied, e. g. , R v Savage; R v Parmenter [1992] 1 AC 699, interpreting (after over 130 years of use) the provisions of the Offences Against the Person Act 1861. A code could be expressed in clear language with de? nitions of fundamental concepts such as intention and recklessness, as suggested by the Law Commission’s Draft Criminal Code; although, as the former chairman of the Law Commission Justice Henry Brooke stated ([1995] Crim LR 911): ‘Nobody in their right mind would want to put the existing criminal law into a codi? d form’. Often the criminal law follows a logical approach in its application; but as it does not exist in a vacuum and is not simply the application of academic principles, policy considerations sometimes have to prevail. As Lord Salmon stated in DPP v Majewski [1976] 2 All ER 142, regarding the defence of intoxication, ‘the answer is that in strict logic the view [intoxication is no defence to crimes of basic intent] cannot be justi? ed. But this is the view that has been adopted by the common law which is founded on common sense and experience rather than strict logic’. Policy considerations are also behind s. (3) of the Criminal Attempts Act 1981, whereby in the offence of attempt, the facts are to be as the accused believes them to be. Thus an accused, objectively viewed, may appear not to be committing a criminal act but because they believe they are, they can be guilty of attempting to commit that criminal act, as in R v Shivpuri [1986] 2 All ER 334. There is often no means of predicting which approach will prevail. In Jaggard v Dickinson [1980] 3 All ER 716, the accused, who had been in formed by her friend X that she could break into X’s house to shelter, while drunk mistakenly broke into V’s house.She was charged with criminal damage under s. 1(1) of the Criminal Damage Act 1971, but argued that she had a lawful excuse under s. 5(2) of the Act as she honestly believed that she had the owner’s consent. Although the prosecution contended that this was a crime of basic intent and therefore drunkenness was no defence (citing the 28 The elements of a crime: actus reus and mens rea House of Lords’ decisions of Metropolitan Police Commissioner v Caldwell and DPP v Majewski in support), the Court of Appeal quashed her conviction, giving priority to the statutory provision of s. (2) of the 1971 Act. One important aspect of the criminal law process in recent years, which has caused uncertainty, is the role of the House of Lords in changing the criminal law. Clearly judges are there to say what the law is, not what it should be; but Lord Simon in DPP for Northern Ireland v Lynch [1975] 1 All ER 913 said: ‘I am all for recognising that judges do make law. And I am all for judges exercising their responsibilities boldly at the proper time and place†¦where matters of social policy are not involved which the collective wisdom of Parliament is better suited to resolve’.Thus in R v R, the House of Lords changed the law of rape, by abolishing the husband’s defence of marital rape immunity without waiting for Parliament to implement the Law Commission’s recommendations. However, their Lordships took the opposite view in R v Clegg [1995] 1 All ER 334, where they refused to follow the Law Commission’s suggestion that a person who was entitled to use force in self-defence but who used unreasonable force, thereby killing the victim, would be guilty of manslaughter, not murder.Lord Lloyd stated: I am not adverse to judges developing law, or indeed making new law, when they can see their way clearly , even where questions of social policy are involved. [A good example is R v R. ] But in the present case I am in no doubt that your Lordships should abstain from law making. The reduction of what would otherwise be murder to manslaughter in a particular class of case seems to me essentially a matter for decision by the legislature. It is dif? cult to appreciate the essential difference in issues in these two cases, despite Lord Lowry’s justi? cations in R v Clegg that ‘R v R dealt with a speci? act and not with a general principle governing criminal liability’. Clearly there is a difference in opinion amongst the Law Lords as to the correct application of these principles. This is well illustrated by the House of Lords’ decision in R v Gotts [1992] 1 All ER 832. The majority decision not to allow duress as a defence to attempted murder was on the basis that duress was no defence to murder. The minority view to the contrary revealed a different analysis. T hey argued that duress is a general defence throughout the criminal law with the exceptions of the offences of murder and treason.It is for Parliament, and not the courts, to limit the ambit of a defence; and as attempted murder is a different offence to murder, duress must therefore be available. It is submitted that these are the main reasons why the development and application of the criminal law is often uncertain and unpredictable. There are other factors, such as whether an issue is a question of law for the judge or fact for the jury, e. g. , the meaning of ‘administer’ (R v Gillard (1988) 87 Cr App R 189); the dif? culty in ascertaining the ratio decidendi of many cases, e. g. R v Brown [1993] 2 All ER 75 (consent); and the possible effect of the decisions of the European Court of Human Rights. But it is the lack of a code and uniform principles which are the main factors causing the inherent uncertainty. The elements of a crime: actus reus and me