Elements of law for everybody (Part II)

Apart from intention, a person may be prosecuted for crime under the following circumstances.

(a) Recklessness: A person will be prosecuted if, knowing that there is a risk that an event may result from his conduct. For example, a driver who over speeds or overloads his vehicle is reckless. His vehicle may overturn and kill the passengers he is carrying. This is the crime of recklessness.

(b) Negligence: This is conduct which fails to measure up to the conduct of a reasonable person.

Negligence figures most in the law of tort where compensation of the plaintiff is the remedy, whereas in crime the sanction is punishment. Careless driving, abandoning one’s children may be a criminal offence under negligence.

(c) Strict liability: Common law offences require mens rea but some statutes passed by Parliament do not require mens reas. These statuses include sale of food and drugs and Road Traffic acts. All that matters is actus reus, having done a prohibited thing is enough for the court to convict you.

(d) Vicarious liability: In tort, an employer may be liable for the tort (wrong doing) of an employee. An employer can be accused for the offence of drug trafficking conducted by his employee. But an employee will not be held liable for a driving offence by his employer.

(e) Corporate liability: A corporation can be held responsible for offences committed by its employees under the following conditions.

(i) It is a fineable offence.

(ii) It is committed by a controlling mind i.e. a director

(iii) It is committed in the course of corporate duties.

If in the course of performing duties a director in anger shoots a customer or a junior employee the corporate cannot be held responsible for the offence of either murder or manslaughter.

General defence

When a person is accused of an offence in court he can defend himself under the following headings:

(i) Automatism: If that act is involuntary there is no actus reus. This means that it would be a defence even to an offence of strict liability.

Suppose you are walking on a wooden bridge that collapses and you fall underneath where a person was swimming and make him drown. This is automatism. You could not help it.

(ii) Mistake: Though ignorance of the law is no defence, ignorance of the mistake can be defence. Where bigamy is illegal, a spouse who believes that his estranged wife or husband died during a civil war and marries later on that spouse turns up. There is the defence of having made a mistake.

(iii) Insanity: In order to succeed in the defence of insanity it must be shown that at the time of committing the offence the defendant was labouring under such a defeat of reason from disease of the mind as to (a) not know the nature and quality of the action and (b), that there was no realisation of wrong doing.

(iv) Intoxication by drink or drugs: intoxication is a defence if it rendered the defendant incapable of forming the specific intent essential to constitute the crime. The principles are the same whether the intoxication is by alcohol or drugs. The defence will not succeed where the defendant deliberately got drunk in order to commit the offence.

(v) Necessity: If a family is being robbed by an armed man, he that kills him has a good defence, the act was necessary to prevent greater harm.

Common crime

(i) Inchoate offence: It is a crime to make someone commit a crime even if the crime is not committed.

(ii) Offences against the person: Homicide, the killing of a person may be lawful if it is done in self-defence or to prevent violence or if it is accidental.

(iii) Murder: Killing a person intentionally and maliciously is murder. If the person you injured dies more than a year and a day after the injury, it is not unlawful homicide.

(iv) Manslaughter is a lesser crime than murder. Where the person accused was provoked, the charge of murder may be reduced to manslaughter.

(v) Assault and battery: Assault is any act by which the defendant intentionally or recklessly causes the victim to fear immediate and unlawful personal violence. Thus to point a gun at someone you are shouting at in anger, even if you do not actually shoot him, you commit an assault.

Battery is the deliberate or reckless infliction of unlawful violence on a person.

Sexual offences

(a) Rape. A man commits rape if he has unlawful sexual intercourse with a woman who at the time does not consent. The least degree of penetration into the woman’s private part is sufficient rape.

(b) Incest: It is an offence for a man to have sexual intercourse with grandchildren, daughter, sister or mother.

A woman commits incest also when she sleeps with close relatives corresponding to the male counterparts.

It was not intended to give an exhaustive list of crimes, but just to let laypersons have a feel of the law.