The Concept Of Mens Rea In International Criminal Law

Discussion

Describe about The Concept of Mens Rea In International Criminal Law ?

Since long, it had been recommended by many leading academicians as well as by lawyers that the existing legislation known as the Non-Fatal Offences against Person, 1861 was something that demanded immediate amendments. This recommendation was based on three main issues. Firstly, the language that is used in the legislation is very complicated, outdated and obscure. Secondly, the structure in which the offences are arranged is very ambiguous. Thirdly, the effectiveness of the piece of legislation was criticized by the Law Commission as well. It was proposed by the Law Commission to repeal Section 18, 20 and 47 of the Act and replace them with new provisions which would be appropriately worded.

The various criticisms of the legislation are being discussed in the following paragraphs. The language that is used in the Legislation is particularly outdated. For instance, there are certain words like ‘malicious’ and ‘grievous’ which are not used on a regular basis these days. Hence, these terms require interpretation by the courts on a regular basis. While on one hand, in general terms, the word ‘malicious’ means something that is related to evil or haughtiness, on the opposite end, the same in legal parlance means having an intention or being reckless. In the matter of DPP v Smith, the term ‘grievous’ was interpreted as to mean something very serious. There are also other terms like ‘assault’ that have been found to be very misleading. Ordinarily, to constitute the offence of ‘assault’, one generally gets a notion that there has to an image of actual physical attack while under the existing legal system, to constitute the offence of ‘assault’, no physical contact is required. Similar ambiguity is also prevalent as far as the term ‘battery’ is concerned. Considering the legislative history, it is very ambiguous to believe that the Victorian Draftsmen actually wished to include any psychiatric harm in the definition of the word bodily harm. However, the Courts have included the same in the said category in the matters of R v Ireland, R v Constanza and R v Burstow. There is equal ambiguity in understanding the word ‘inflict’. In the matter of R v Clarence, it meant requirement of proof that an assault or battery was actually done. In the matter of R v Wilson, the Court ruled that to satisfy the ingredients of this particular word, force should be applied directly. On the other hand, the same court in the matter of R v Martin ruled that even indirect application of the force would satisfy the section.

Law Commission Recommendations

Let us know have a look at the ambiguous structure of the offences. The offences of assault and battery are not defined coherently and hence, there is no boundary line that would differentiate the two from each other. In Faulkner v Talbot, it was ruled that battery would be said to have done if there is any intentional touching while, ABH would be constituted if the intentional touching would interfere with the comfort of the individual. Apart from the element of comfort there seems to be no difference between these two offences, yet, the punishment prescribed for both of them is miles apart. While battery is punishable with a maximum penalty of 6 months, ABH might be punishable for 5 years. The different jury would interpret ABH and GBH n grossly different terms. There is no boundary to compartmentalize the two. It is beyond doubt that ABH and GBH are offences with different levels of severity in terms of injury. Even then, under Section 20, an offence of GBH has the same level of penalty as an offence under Section 47, dealing with ABH.

There seems to be no validity as to why would the offence of wounding is kept in an entirely different section. The same can be interpreted along the terms of GBH. In the matter of Moriarty v Brookes, it was held by the Court that breaking the seven layers of the skin would be said to constitute the offence of wound. This means that a pin prick would be considered to be a wound and also a head breaking with skin rupture will also be wound. It is dismal to see this situation.

Further, as far as the effectiveness of the offences is concerned, there are further criticisms there as well. It is likely that many of the non fatal offences against persons would go unpunished. There are high chances that many of them would not be reported and even if they are reported, they may not be prosecuted.

Keeping these in mind, the Law Commission, published the report titled Legislating the Criminal Code: Offences Against the Person and General Principles. This came in inclusion of a bill that intended to repeal Section 18, 20 and 47 on the grounds that the language was old fashioned, the three sections in question are complicated and have technical errors associated and that in the interpretation of these sections, it is very likely that lawyers would make mistakes and there would be total unintelligibility as far as the common men are concerned.

Evaluation

We shall now look into the amendments which the proposed bill intended to provide. The same is being presented in the given tabular form:

Present Offences	Proposed New Offences	Definitions	Maximum Penalty
S. 18: Wounding or causing Grievous Bodily Hurt with intent	A person would remain guilty of an offence under the section  if he intentionally causes an injury that is serious to any other person	‘Injury’ would mean any physical injury or mental injury. Physical injury would mean anything that is caused by disease and would include any pain, unconsciousness or any other impairment of the physical condition of a person. Mental injury would mean anything that causes an impairment of the mental health of a person.	Imprisonment for life.
S. 20: Wounding or causing Grievous Bodily Hurt	A person would remain guilty of an offence under the section if serious injury is caused to another person by his reckless act.	‘Injury’ would have the same definition as stated above with the only difference that it would not include anything that is caused by diseases.	Seven years on condemnation or six months; this may or may not be associated with a fine summarily.
S. 47: Assault that results in ABH	A person would remain guilty of an offence under this section if an injury is caused to another person either with intent or out of recklessness.	‘Injury’ would have the same definition as stated above with the only difference that it would not include anything that is caused by diseases.	Five years on condemnation or six months; this may or may not be associated with a fine summarily.
Common Law Assault and Battery	A person remains guilty of an offence under this section if he with intent applies force on another person and he believes that such an impact would be imminent.		Generally, the fine amounts to an amount not more than $ 5000 along with imprisonment for a term which may extend to six months.

The key aspects of the changed reform suggest that the following three should be kept in mind

An assault that is inclusive of a battery which results in any harm which happens to be an ABH in contrast to Section 47 should be charged as a common assault in contrast to section 39 of the Criminal Justice Act where injury constitutes nothing more than a graze or a scratch or an abrasion.

The offences that would be charged under section 47 are loss or breaking of tooth or teeth, cuts that require stitches, extensive bruises, psychiatric injury going beyond fear, loss of sensory functions etc.

Section 20 of the Act should only be kept for those wounds that are at equivalence with GBH. Such offences include permanent disability, visible disfigurement of any organ, broken or misplaced bones and limbs, or any other injury that causes a substantial loss of blood.

Conclusion

As far as the success of the new provisions is concerned, it appears that the recommendations of the Law Commission have been followed. If the Bill is implemented, it is likely that the ambiguities that were present in the legislation would be mended to a great extent. The Law Commission has recommended these changes that are very vital for the criminal justice system to stand on strong grounds. But at the same time, it also cannot be denied that the scope for improvement still lies. There are certain areas that can be mended again. As for instance, the definition of assault and battery can be brought under one head so that the difference of borderline between the two can be understood. Further, the sections can also be updated as far as parlance with Section 39 of Criminal Justice Act is concerned. This will provide a more coherent criminal law framework. But a reading of the present situation clearly points that the recommended changes are particularly helpful in deciphering the ambiguous situation that was present formerly.

References

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DPP v Smith. in , , 1961, p. 290.

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Faulkner v Talbot [1981] 3 All ER 468. in , , 1981, p. 468.

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Jefferson, M, ‘Offences against the Person: Into the 21st Century’. in The Journal of Criminal Law, 76, 2012, 472-492.

Jones-Brown, D, B Frazier, & M Brooks, African Americans and criminal justice. in , Oxford University Press, 2014.

Kymlicka, W, C Lernestedt, & M Matravers, Criminal law and cultural diversity. in , Oxford University Press, 2015.

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R v Burstow. in , , 1997, p. 34.

R v Clarence. in , , 1889, , 23.

R v Constanza. in , , 1997, p. 576.

R v Ireland. in , , 1997, , 534.

R v Martin. in , , 1989, , 343.

R v Wilson. in , , 1996, p. 573.

Virgo, G, ‘Offences Against the Person—Do-It-Yourself Law Reform’. in Cam. Law. J., 56, 1997, 251.

M Allen, Textbook on criminal law, in , Oxford, Oxford university press, 2015.

W Kymlicka, C Lernestedt & M Matravers, Criminal law and cultural diversity, in , Oxford University Press, 2015.

DPP v Smith, in AC, , 1961, p. 290.

R v Ireland, in WLR, , 1997, , 534.

R v Constanza, in Crim L R, , 1997, p. 576.

R v Burstow, in UKHL, , 1997, p. 34.

R v Clarence, in QB, , 1889, , 23.

R v Wilson, in Crim L R, , 1996, p. 573.

R v Martin, in Cr App R, , 1989, , 343.

D Jones-Brown, B Frazier & M Brooks, African Americans and criminal justice, in , Oxford University Press, 2014.

Faulkner v Talbot [1981] 3 All ER 468, in All E R, , 1981, p. 468.

M Badar, The concept of Mens Rea in international criminal law, in . Oxford University Press, 2015.

C Lee & Audah Hassan, Offences against persons and property, in , Petaling Jaya, Selangor Darul Ehsan, Malaysia, LexisNexis, 2009.

Moriarty v Brookes, in EWHC Exch J, , 1834, p. 79.

Lawteacher.net, ‘Non Fatal Offences Against The Person | Criminal Lecture Notes | Law Teacher’, in , , 2015, <https://www.lawteacher.net/lecture-notes/criminal-law/assaults-lecture.php> [accessed 24 July 2015].

G Virgo, ‘Offences Against the Person—Do-It-Yourself Law Reform’, in Cam. Law. J., vol. 56, 1997, 251.

H Law, ‘Offences against the Person: Reckless Transmission of HIV’, in The Journal of Criminal Law, vol. 69, 2005, 389-393.

M Dubber, Foundational texts in modern criminal law, in . Oxford University Press, 2015.

E-lawresources.co.uk, ‘Criticisms of non-fatal offences against the person’, in , , 2015, <https://e-lawresources.co.uk/Non-Fatal-Offences-Against-the-Person—Criticisms.php> [accessed 24 July 2015].

M Jefferson, ‘Offences against the Person: Into the 21st Century’, in The Journal of Criminal Law, vol. 76, 2012, 472-492.

J HORDER, ‘Rethinking Non-Fatal Offences against the Person’, in Oxford Journal of Legal Studies, vol. 14, 1994, 335-351.