A Trade Mark

A Trade Mark Introduction A trade mark is a way for one party to distinguish themselves from another. In business, a trade mark provides a product or organization with an identity which cannot be imitated by its competitors. According to section 1(1) of the 1994 Act, a trademark is ‘any sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of another’. In Sigla SA v OHIM (Office of Harmonization for the Internal Market) the Court of First Instance (CFI) stated that a trade mark does also convey other messages concerning the qualities or particular characteristics of the goods or services which it covers, such as luxury, lifestyle, exclusivity, adventure, youth. A mark has then an inherent economic value which is independent of and separate from that of the goods and services for which it is registered. The CFI held that ‘these messages are conveyed, by trademarks with reputation and confer on it significant value which deserves protection because the reputation of a mark is the result of considerable effort and investment on the part of its proprietor’. However, how far the UK courts and the European Court of Justice (ECJ) have recognised this â€Å"inherent economic value† of registered trade marks? Relative Grounds for Refusal Marks which conflict with earlier marks or signs may not be registered. The grounds for refusal of the registration of a trade mark are found in section 5 of the Trade Marks Act 1994 and Article 8 of the Community Trade Mark Regulation (CTMR): Identical marks on identical goods and services: section 5(1)/Article 8(1) (a); Identical marks on similar goods and services that there exists a likelihood of confusion on the part of the public which includes the likelihood of association with the earlier mark: section 5(2) (a)/Article 8(1) (b); Similar marks on similar goods and services and there is a likelihood of confusion which includes the likelihood of association, between the marks: section 5(2) (b)/Article 8(1) (b); Identical or similar marks on goods or services which would take unfair advantage of, or be detrimental to, the distinctive character of the earlier mark, without due cause: section 5(3)/Article 8(5). UK incorporated Articles 4(4) (a) of the EC Trademark Directive and 8(5) of the Community Regulation 40/94 into domestic law under section 5(3) of its Trade Marks Act 1994. According to section 6, Earlier Marks cover UK and Community Trade Marks with an earlier registration date and Community Trade Marks with seniority derived from an earlier UK mark. They can also be marks registered under the Madrid Protocol and â€Å"well known† trademarks protected under Article 6bis of the Paris Convention. Article 4(4)(a) of the EC Trademark Directive allows any Member State to provide that ‘a trade mark shall not be registered where, the trade mark is identical with, or similar to, an earlier national trade mark and is to be registered for goods or services which are not similar to those for which the earlier trade mark is registered, where the earlier trade mark has a reputation in the Member State concerned and where the use of the later trade mark without due cause would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark’. There are four main grounds for infringement, which are set out in section 10 of the Trade Mark Act 1994. They are the same grounds for refusal of registration, as contained in section 5. Any act of infringement is not required to of held any previous knowledge or intention to carry out the act. To infringe, a mark must be used ‘in the course of trade’. Any use which is liable to put at risk the guarantee of origin may be prevented, because this guarantee constitutes the essential function of the mark. Identical and Similar Marks under Section 10(1) If the marks are identical or similar, and the goods and services are identical or similar, confusion must be shown. A mark is considered similar if in the mind of the average consumer the likelihood of confusion for the goods/services is at issue. The marks must be compared as wholes because the average consumer generally recognizes marks as a whole. Section 10(1) prohibits the use of an identical mark to the registered mark upon goods or services for which the mark is registered. In Reed executive v Reed Business Information Ltd it was held that the marks were similar, not identical. The claimant alleged that the defendants had infringed its trade mark. The defendant had used ‘Reed’ as part of the composites ‘Reed Elsevier’ and ‘Reed Business information’. Jacob LJ did not think that ‘Reed Business information’ was identical to ‘Reed’ and he noted that the additional words would not ignored by the average consumer. The ECJ in SA Societe LTJ Diffusion v SA Sadas stated that the criterion ‘must be interpreted strictly. The definition of identity implies that the two elements should be the same in all aspects’. The level of identity between the marks must be high. In Origins Natural Resources Inc v Origin Clothing Ltd the marks ‘Origin’ and ‘Origins’, were held to be similar but not identical. Likelihood of Confusion Likelihood of confusion is arising from similarity with an earlier mark and goods and services for which that earlier mark is registered. If exists a likelihood of confusion on the part of the public, the trade mark will not be registered under section 5(2). Jacob J recommended in British Sugar plc v James Robertson Sons Ltd, that to apply section 5(2) is to ask first whether the marks are the same or similar and then whether the goods are the same or similar. Finally, ask whether the proviso applies and whether there is a likelihood of confusion, including a likelihood of association between the marks. If the answer to all three questions is positive, then there will be a conflict. In Sabel v Puma the ECJ held, that the likelihood of confusion must be appreciated globally, taking into account factors including the recognition of the trade mark on the market, the association which can be made between the registered mark, the sign and the degree of similarity between the mark, the goods and the services. The Court considered that there is a greater likelihood of confusion where the earlier trade mark has a highly distinctive character. It was noted in Ruiz-Picasso v OHIM, that attention would be particularly high as regards goods which are expensive, and highly technological in character. The ECJ said in Canon Kabushiki Kaisha v Metro-Goldwyn-Mayer Inc that, if the association between the marks causes the public to believe that the respective goods come from the same or economically linked undertakings, there is a likelihood of confusion. In Marca Mode CV v Adidas AG it was held that ‘the reputation of a mark does not give grounds for presuming a likelihood of confusion simply because of a likelihood of association in the strict sense’. Protection for Marks with Reputation Article 8(5) of the Trade Mark Directive and Article 4(4) the Community Trade Mark Regulation offer protection for marks ‘with a reputation’, recognising that trade marks do more than simply signify origin. In Bristol Myers Squibb v. Paranova the â€Å"essential function† of the trade mark was held to be to guarantee origin to the consumer without any risk of confusion. Some marks because of their reputation have obtained a value not confined to the basic distinguishing function of a mark, so that they should be entitled to protection. The CFI give guidance in Sigla on the distinction between the notion of the likelihood of confusion and the risk of unfair advantage. The Court noted that a likelihood of confusion occurs where a consumer is attracted to a product or service covered by the applied for mark because of a misunderstanding that it comes from the same origin as that covered by an earlier mark which is identical or similar. However, the risk of unfair advantage might happen where the consumer is attracted to the mark itself, without confusing the origin of the good or service. The Court in Sigla held that: ‘Article 8(5), ensures that a mark with a reputation is protected with regard to any application for an identical or similar mark which might affect its image, even if the goods or services covered by the mark applied for are not similar to those for which the earlier mark with a reputation has been registered’. Being able to prove that the trade mark ‘has a reputation’ is a key to a trade mark owner’s ability to benefit. Dilution Section 5(3) of the Trade Marks Act 1994 offers the means for an earlier trade mark holder to prevent registration of a later trade mark which dilutes the distinctiveness and exclusivity of his trade mark. The dilution claim it appears as section 10(3) of the Act: A person infringes a registered trade mark if he uses in the course of trade a sign which is identical with or similar to the trade mark, and is used in relation to goods or services which are not similar to those for which the trade mark is registered. The trade mark must have a reputation in the UK, namely the use of the sign must be without due cause and must either take ‘unfair advantage of’ or be ‘detrimental to’ the distinctive character or repute of the trade mark. In Adidas-Salomon AG and Adidas Benelux BV v Fitnessworld Jacobs found that the concept of detriment encapsulates dilution, which is often referred to as ‘blurring’ and means that the mark is no longer capable of arousing an immediate association with the goods for which it is registered or used. This concept of detriment is sometimes referred to as ‘tarnishment,’ and means that the goods for which the infringing sign is used, appeals to the public’s senses which accordingly affects the mark’s power of attraction. Reputation The justification for the laws protecting trade marks focuses on the recognition and their quality. Kur stated that reputation could be claimed by ‘a trademark with a relatively low degree of renown, yet which possesses an attractive, strongly associative image’. The question of the reputation needed by a trade mark to qualify for protection was decided by the ECJ in General Motors Corporation v Yplon . It was stated in this case that the stronger the earlier mark’s distinctive character and reputation, the easier it will be to find that detriment has been caused to it. The ECJ held that the words has a reputation in Section 5(3) of the Trade Marks Act, Article (4)(4)(a) of the 89/104 directive and Article 8(5) of regulation 40/94 require the mark known only by a significant part of the public concerned by the products or services covered by it. To oppose a trade mark under Article 8(5) a challenger must prove in the case of an earlier Community trade mark the trade mark has a reputation in the Community and, in the case of an earlier national trade mark, the trade mark has a reputation in the Member State concerned. The Court held that a national Court when is deciding whether a mark had a reputation has to take into account facts like ‘the market share held by the trade mark, the intensity, geographical extent, and duration of its use, and the size of the investment made by the undertaking in promoting it’. In Hag II the Advocate General stated that trade marks found their justification ‘in a harmonious dove-tailing between public and private interests’, the right purpose of the law being to protect the ‘clarity of the signal transmitted by the mark’. The CFI in Spa Monopole v OHIM-Spa finders , held in that the reputation for certain goods or services can not be extended to other goods and services. The Court held that the reputation for mineral waters could not constitute the evidence of reputation for goods in class 3 (namely soaps, perfumery and cosmetics) and that ‘the proprietor of the earlier mark is not required to demonstrate actual and present harm to his mark. He must adduce prima facie evidence of a future risk, which is not hypothetical, of unfair advantage or detriment’. Marks with Reputation on Similar or Dissimilar Goods Section 5(3) of the 1994 Act has been amended to mirror section 10(3) which is relevant to goods and services that are dissimilar to those of the relevant registration. There is no need for there to be any ‘likelihood of confusion’ for an infringement under section 10(3). It was considered in Davidoff Cie SA and Zino Davidoff SA v Gofkid Ltd that a well known mark should receive the same protection where the goods are similar as it receives where the goods are dissimilar. The Court held that member states were entitled to provide specific protection for registered trade marks with a reputation in cases where a later mark or sign, which is identical with or similar to the registered mark, is intended to be used or is used for goods or services identical with or similar to those covered by the registered mark. In Adidas v Fitnessworld the ECJ held that ‘it is sufficient for the degree of similarity between the mark with a reputation and the sign to have the effect that the relevant section of the public establishes a link between the sign and the mark’. It was considered that where a member state exercises the option under Article 4(4) (a) of the directive it is bound to grant the protection in question in cases of use by a third party of a later mark or sign which is identical with or similar to the registered mark with a reputation, in relation to goods or services which are not similar and to goods or services which are identical with or similar to those covered by that mark. In this case the Court stated that ‘Article 5(2) of the directive establishes, for the benefit of trade marks with reputation, a form of protection whose implementation does not require the existence of likelihood of confusion’. The ECJ considered that Article 5(2) of the Directive must be interpreted in the sense that, where the sign is used for identical goods or services, a mark with a reputation must benefit from protection which as extensive as where a sign is used for non-similar goods or services. Unfair Advantage or Detriment A trade mark will not be registered where the use of the later mark must either take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark. The Court held in Spa-Finders that ‘Unfair advantage encompasses cases of clear exploitation and free-riding on the coat-tails of a famous mark or an attempt to trade upon its reputation, unfairly drawing on and profiting from an earlier mark owner’s goodwill and investment in promotion’. Detriment could take the form of tarnishing or blurring. The association between two marks and between the goods or services to which they relate could be detrimental to the strength and reputation of the earlier mark if it tarnished it by association or made it less distinctive. Evidence of reputation can go a long way toward proving unfair advantage or detriment. Unfair Advantage of the Earlier Mark Advocate General Jacobs in the Adidas case considered that the concept of ‘unfair advantage of distinctive character or repute’, as found in Article 5(2) of the EC Trademark Directive was ‘intended to encompass instances where there is clear exploitation and free-riding on the coattails of a famous mark or an attempt to train upon its reputation’. The CFI in Sigla, stated that the unfair advantage of the repute takes place where there is a risk that the image of the mark with a reputation or the characteristics which it projects are transferred to the goods covered by the second mark, with the result that the marketing of those goods is made easier by that association with the earlier mark with a reputation. Sir Thomas Bingham, in Taittinger SA v Allbev, stated that it would be unfair to allow others to ‘cash in on the reputation that they had done nothing to establish’. In L’Oreal SA v Bellure NV , the defendants were a cosmetic company who were trying to pass off their brand as that of L’Oreal’s. The L’Oreal trade mark is very popular. Jacob LJ looked at the importance of unfair advantage and stated that the relation between the defendants’ packaging and the registered marks, if established, would give an advantage on the defendants. He gave as an example of unfair advantage, where a well known mark in one field is used by another in a same field and therefore excludes the chance for the owner of the registered mark to move into that field in the future. In Akteselkabet af 21 November 2001 v OHIM, the earlier mark benefited from a reputation for ‘apparatus for recording transmission or reproduction of sound or images’ and evidence has been given of its use in sporting events, while the other trade mark was applied for clothing. It was considered by the CFI that as the public was familiarized to seeing the TDK mark on clothing related to sporting events, the use of the second sign on clothing could make the public to believe that such clothing was manufactured by, or under licence from, the owner of the TDK mark. Detrimental to the Distinctive character of the earlier mark It was held in Spa-Finders that there is detriment where the earlier mark is no longer able of beginning direct association with the goods for which it is registered and used. The CFI held that the existence of a link between the marks Spa and Spa-Finders in the mind of the relevant public is not enough to show the risk of detriment to the distinctive character. The Court in Intel Corporation Inc v CPM United Kingdom Ltd said that article 4(4)(a) of the Directive was to be interpreted as meaning that whether there was a link between the earlier mark with a reputation and the later mark was to be assessed globally, taking into account all the relevant factors which included the fact that, for the average consumer, who was reasonably well informed, observant and circumspect, the later mark called the earlier mark with a reputation to mind was tantamount to the existence of such a link between the conflicting marks. It was held in Intel that ‘the fact that the earlier mark had a reputation for certain types of goods or services, and those goods or services and the goods or services for which the later mark was registered were dissimilar or dissimilar to a substantial degree, and the earlier mark was unique in respect of any goods or services, did not necessarily imply that there was a link between the marks’. Jacob LJ thought that there should be more than a ‘mere calling to mind’ of the earlier mark by the average consumer when confronted with the later mark on dissimilar goods. Any detriment should be to the distinctiveness of the earlier mark in relation to the goods and services it covers, no to its attractiveness more generally. The more unique the earlier mark appeared, the greater the likelihood that the use of a later identical or similar mark would be detrimental to its distinctive character. Detriment to the Repute In Claeryn v Klarein the Court considered that the concept of detriment to the repute of a trade mark, often referred to as degradation or tarnishment of the mark, describes the situation where the goods for which the infringing sign is used, appeal to the publics senses in such a way that the trade marks power of attraction is affected. The case of Sigla SA v OHIM, explained that the detriment to the repute occurs where the goods or services, for which the reputed trademark is unjustifiably used, have a quality or a value which may have a negative influence on the image of the earlier mark with reputation. The CFI held in Spa-Finders that there is no ‘antagonism’ between the goods and services covered by the marks which might be detrimental to the repute of Spa mineral waters. The Court notes that it is unlikely that the mark Spa-Finders will tarnish the image of the Spa mark. These marks designate different goods consisting, in mineral waters and, on the other hand, in publications and travel agency services. The Court find that it is unlikely that the goods and services covered by the mark Spa-Finders, even if they turn out to be of lower quality, would diminish the power of attraction of the mark Spa. The closer the goods are the easier to prove a detriment to the repute will be. Without Due Cause When an opponent has established that its earlier trade mark has a reputation, and that use of the applicant’s mark will take unfair advantage of, or to be detrimental to, the earlier mark, the obligation then falls upon the applicant to show that the use would not be without due cause. Jacob LJ noted in L’Oreal v Bellure that the onus of establishing due cause lies with the defendant. In the Nasdaq Stock Market Inc case the CFI held that Nasdaq was distinctive and conveyed an image of modernity which was attractive and relevant to the stock market and to other goods such as the applicant’s. It was considered that the applicant had not established that its use of the trade mark would be founded on due cause within the meaning of Article 8(5), and the Court held that there was no due cause for the applicants use of the sign. The Court in Premier Brands UK v Typhoon Europe, applied the criterion from found that Typhoo was an established brand of tea with a reputation and that the defendant used its mark without due cause. It was held that there would be no likelihood of confusion but proceedings commenced in relation to section 10(3), on the idea that the goods in subject were dissimilar. Neuberger J held that the phrase ‘without due cause’ required an applicant to show some reasonable grounds for using its sign in relation to its goods even this was unfair or detrimental to the earlier mark. Good faith would not justify the registration of a mark. In Hollywood SAS v Souza Cruz SA it was held that ‘the condition of due cause is not fulfilled merely by the fact that the sign is suitable for identifying the products for it is used, the applicant has already used this sign for these or similar products within and outside the territory of the community or the applicant invokes a right ensuring from a filing over which the filing by the proprietor of the opposing trade mark takes precedence’. These factors are guidelines which may the Court use in balancing the competing interests present in dilution cases. Conclusion A trademark is a powerful right. For many businesses, a Trade Mark is a valuable asset which plays a key role in the commercial success of the business. Reputation can improve the distinctiveness of the mark and increase its scope of protection. Trade marks act as a motivation to sustain quality since they act as a guarantee to the consumer. The ECJ has treated the requirement that the trade mark must have a reputation as a threshold that can be included into a global appreciation. As the ECJ has interpreted it, the additional zone identifies that the economic value of a trade mark can reflect ability for doing something more than presenting its important meaning and that this ability can require certain legal protection.

Youth Unemployment and Crime in Australia :: essays research papers fc

The causes and consequences of youth unemployment in Australia has been of particular concern within both government and private sectors for many years. According to the Australian Bureau of Statistics (ABS), 10.9% of the total 15-24 age population was unemployed in September, 1995. This figure climbed to 15.3% in September, 2003. This evidence gives cause to the growing concern surrounding the increase in youth unemployment. For sizeable numbers of youth, its not going to get any easier to find work as they move into their twenties or complete education. Opinions such as those found in the Smith Family Youth Unemployment Report (2003) hypothesise that juvenile crime is directly connected to the high rates of youth unemployment in Australia. In this essay, I would firstly like to ask exactly what is known about both the rates of juvenile crime and youth unemployment in Australia, and is there a direct link between the two? The suggested connection between a soaring crime rate and yo uth unemployment influences the way in which our society is governed and developed, making it imperative that we endeavor to try and understand and/or eliminate some of these suggestions. I will begin my essay by defining what I mean by youth unemployment and juvenile crime, and explore the possible challenges upon measuring both of these things. Comparing statistics gathered from both the ABS and other government recognized reports on unemployment, and information from the Australian Institute of Criminology (AIC), I will attempt to weigh up the claim that the crime rate has risen in unison with the unemployment rate. I will also assess claims made by Weatherburn (2001) that youth unemployment causes crime, sifting through the truths and fallacies. Opinions such as those found in the Smith Family Youth Unemployment Report (2003) which hypothesize that juvenile crime is directly connected to the high rates of youth unemployment in Australia cannot be neither accepted nor critiqued until there is a clear understanding of what the terms â€Å"Youth Unemployment† and â€Å"Juvenile Crime† mean in the context of this essay. In this essay youth unemployment is generally taken to include the entire 15-24 age cohort – not just 15-19 year old teenagers – who are no longer at school or university and who are without a job. I have chosen to include 20-24 year olds under the banner of â€Å"Youth†, as it gives a fairer picture of the performance of all young people in the labor market and takes into account the pattern of employment both during and after leaving school or university.

Andrew Carnegie On The Gospel Of Wealth :: essays research papers

Andrew Carnegie was born in Dunfermline, Scotland in 1835. His father, Will, was a weaver and a follower of Chartism, a popular movement of the British working class that called for the masses to vote and to run for Parliament in order to help improve conditions for workers. The exposure to such political beliefs and his family's poverty made a lasting impression on young Andrew and played a significant role in his life after his family immigrated to the United States in 1848. Andrew Carnegie amassed wealth in the steel industry after immigrating from Scotland as a boy. He came from a poor family and had little formal education. The roots of Carnegie's internal conflicts were planted in Dunfermline, Scotland, where he was born in 1835, the son of a weaver and political radical who instilled in young Andrew the values of political and economic equality. His family's poverty, however, taught Carnegie a different lesson. When the Carnegies emigrated to America in 1848, Carnegie determined to bring prosperity to his family. He worked many small jobs which included working for the Pennsylvania Railroad where he first recognized the importance of steel. With this recognition, he resigned and started the Keystone Bridge Company in 1865. He built a steel-rail mill, and bought out a small steel company. By 1888, he had a large plant. Later on he sold his Carnegie Steel Company to J. P. Morgan's U.S. Steel Company after a serious, bloody union strike.He saw himself as a hero of working people, yet he crushed their unions. The richest man in the world, he railed against privilege. A generous philanthropist, he slashed the wages of the workers who made him rich. By this time, Carnegie was an established, successful millionaire. He was a great philanthropist, donating over $350 million dollars to public causes, opening libraries, money for teachers, and funds to support peace. In the end, he gave away about 90% of his own money to various causes. He also preached to others to do the same as in giving money for education and sciences.The problem, however, was that there was such a contrast between the rich and the poor. By this he was referring to the inequalities in rights, hereditary powers, and such things. He also felt we should have a continuum of forward progress, i.e. civilizing, industrializing.Apparently in his time there was a movement to drift back into a time when there was little advance in modernizing and technologically advancing; when "neither master nor servant was as well situated.

Friendship in The Pact :: Personal Narrative Pact College Friends Essays

Friendship in The Pact Works Cited Missing Friendship can lift you up, strengthen and empower you, or break you down, weaken and defeat you† (32). In The Pact, George, Rameck, and Sam lifted each other through the hard times. They helped each other reach their dreams, even though they had their rough times. George, Rameck, and Sam all lived troubled lives while growing up. They all suffered with financial problems, and judicial problems. Their friendship helped them succeed and eventually gave them a more stable live style. Friendship is very powerful and can help you in so many ways. Many high school seniors are excited about going to college. Meeting new people, trying new things, and finding who they are, are all things they look forward to. But, not until a few days before the big move out, do they become nervous. To me, overcoming the transition to college was very difficult, and would have been more difficult if I did not have friends to encourage me. I was filled with excitement throughout the entire summer. I could not wait to get out of Scranton to expand my horizons. As the summer progressed, the excitement grew. When receiving the room assignments, I was shaking with nerves to see who I would be living with. I remember seeing their names and immediately forming a stereotype of them just by the looks of their name. A week before moving out, reality hit me like a gigantic rock. The feelings that were excitement were now anxiety. I was scared about leaving my safety zone. I knew many people in Scranton, and fit in well. I did not know anyone that was attending Penn State Harrisburg, I was alone for the first time in my life. I began to look at college as a fresh start of life. I had the opportunity to change anything I want about myself. However, the day before leaving, I wanted to change my mind, I no longer wanted to leave everything that I have known for my entire life. But, I refused to show my new feelings because I knew it was a common feeling among other college bound freshman. After some tears and deep breathes, I realized I always wanted to go away to school and if I backed out, I would regret my decision for the rest of my life.

Case study Essay

This paper addresses the principles of Choice Theory with the origin of Classical Theory, as well as the Trait Theory which originated from the Positivist Theory. It establishes the differences between the two criminological theories. The defining characteristics are addressed to help the reader understand the relation between the two as well. The distinctions and descriptions are supported by various scholarly authors, and will be listed below. The ideas of the Choice Theory originated from the principles and ideas of the Classical Theory. Back in the late 1700’s it was the understanding of the criminologist, that criminals would typically assess the possible benefits of conscious and rational choice before committing a crime. Choice theory establishes a mindset focused on the benefits they will render by becoming involved in a criminal act over the possibilities of punishment or rather conviction of the crime in question. Classical Theory was developed by Cesare Beccaria, an Italian social thinkers as stated in the text (pg. 84) after which, about a hundred years later the idea of Positivist Theory was developed and became the focus of the criminologist. Although the Positivist Theory made an appearance within the study, not much longer after they shifted back to the original thoughts of Cesare Beccaria. As the years went on Beccaria original idea of Choice Theory developed into something greater and more advanced in its description. According to one article â€Å"Rational Choice Theory, Crime Control Policy, and Criminological Relevance† states it is matured into a more comprehensive perspective that ultimately appreciates the complexity of the nature of criminal behavior. Within this crime theory, suggest that criminals are typically not fearfully of breaking the law because the excitement and thrill of the crime is far too enjoyable for these criminals. However if the criminal believe the punishment was too severe they will not engage in or every think to repeat their criminal offense. The notion that physical and mental traits distinguish a criminal from another is the principles of the Trait Theory. These criminals commit crime based on environmental effects as well the diet or food in which they may consume. It originated from the Positivist Theory that rejects the idea that the criminal makes a conscious and/or rational choice to commit a crime; but rather their character differences is what constitutes their criminal behavior. These differences suggest the criminologist conclusion of deviant member within society and helps them identify them as such. The idea of this theory suggest that criminals have a distinct characteristics that causes them to commit a crime but it is in fact an unconscious act because it a personal trait in which only few possess. It is easy to distinguish the difference between the Choice theory of Classical criminology and the Trait Theory of Positivist criminology. These differences include the free will of the classical criminology philosophy where the criminal calculates or determines if the crime is worth the risk of being convicted, whereas positivist criminology philosophy indicates the criminal is subject to external forces causing them to commit a crime. Choice theory suggest that the solution to this philosophy is any form of deterrence. And the solution for Positivist criminals is also some form of intervention. Classical criminology places importance on the idea of agency verses positivist places it concern on structure. Classical criminals must be punished whereas positivist criminals need rehabilitation. The similarities include they are both criminals act that need to be addressed to prevent them from occurring. Whatever form to therapy, rehab or intervention that needs to take place has to occur. Another similarity is the time it was founded. Both theories were established around the same time era.

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

Can a Company Eliminate Inventory Essay

Irrespective of the type of business that a company engages in, whether manufacturing, distribution or services, maintaining a certain quantity of inventory is inevitable. The quantum will depend on the operations of the company as well its policies relating to inventory storage and accounting. However advances in technology and new techniques of production have made it possible for companies to reduce inventory, albeit not eliminate it completely. Technological innovations and developments including barcode readers, asset tracking devices, inventory management software and Point of Sales (POS) systems, among others, aid greatly in reducing excess inventory. With the help of these devices a company is made aware of the exact quantity and type of stock it possesses. Sales, purchases and stock-in-progress are readily recorded and the resulting final stock value can be determined immediately. As a result, the company can identify the excess stock present and choose to either reduce production or increase deliveries to customers. This will decrease the inventory. Moreover, with the use of inventory management software, a company can plan and schedule the production process in a manner so as to manufacture the quantity of goods that will match the demand for the same. Various new techniques of production that reduce inventory, and thereby costs, have also been developed. The most popular one is the Just-in-Time (JIT) method of production or the Toyota Production System. The JIT system integrates various areas of production and management to reduce inventory and the costs associated with its storage and supervision. It relies on signals called â€Å"Kanban† that notify when the next part of the process must be implemented. Production is driven by demand and the system stresses upon such inventory-reducing methods as reducing lot-sizes, ensuring frequent deliveries and reduction of number of parts. Thus, advances in technology have allowed companies to significantly reduce their inventory. With the use of these innovations, a company can discern the actual need for inventory and plan its production and other operations accordingly. Wastage of stock as well as money will be diminished. Nonetheless it must be noted that no company can survive with zero inventory. Every company will have to maintain a certain amount of stock to continue operations without interruption. Thus, advancements in technology can help a company to reduce inventory to a large extent, but not to eliminate it completely.