[ql06] CRIMINAL: Mens rea standards / "U.K. Supreme Court"
- From: "Ken Campbell" <2kc16@xxxxxxxxxxxxxxxx>
- To: <ql06@xxxxxxxxxxxxx>
- Date: Wed, 5 Nov 2003 21:52:42 -0500
Hey Gang --
Okay, so these two items below are only loosely related -- hence the
SLASHED Subject line.
But what the hell, I wanted to write something about the next section of
CRIMINAL we are about to embark on... And the following newstory from
today's Independent brought to mind the vaunted House of Lords and the
Smith case in CRIMINAL. (And I wanted to think about something other
than PUBLIC law before unwinding for the evening.)
You may recall that on Tuesday (yesterday) we started on "subjective"
and "objective" standards in full mens rea.
It's like a spectrum of mens rea and crimes... (You need a fixed font on
your screen to see the spectrum line up correctly)
|--------------|--------------|
Absolute Strict Full
Liability Liability Mens Rea
(No M.R.) (part M.R.)
- Speeding - Regulatory - Murder and
offences offences worst offences
Crown needs to establish a full "mental element" on the right-end of the
spectrum.
That "mental element" is composed of TWO STEPS:
1. Objective Standard: Did the accused fail to measure up to a "minimal
standard" of what the legendary "Reasonable Man" would know?
(BTW, personally, I think Norman Mizobuchi, fellow law student in
section 5, is the actual, modern incarnation of the "Reasonable Man." I
think he should rent himself out as an expert witness in cases -- "Your
Honor, I call next the Reasonable Man.")
Passing the first stage, you move to the second...
2. Subjective Standard: Get into the accused's mind. Either through
confession or inference from their actions in going beyond the minimal
Reasonable Man standard.
Which brings us to the House Of Lords... and the D.P.P. v. Smith case
(p. 353). Remember Gary talking about the outrage in Australia and other
common law countries over the House of Lords upholding the conviction
for 1st degree murder, even though the 2-stage (Subjective Standard) was
skipped?
I think Gary said something about an "explosion of opinion against the
House of Lords."
Welllll, the Brits have been trying to replace the House of Lords as the
highest court for a bit, now. Blair and company want to create a U.K.
Supreme Court.
And guess who doesn't like that idea... Maybe Blair should ask them
about that Smith decision...
Ken.
P.S. I cross-post to the Reasonable Norman, lest he miss this career
opportunity. He could be an expert witness in almost every single major
crime case in Canada.
--
But, my dear man, reality is only a Rorschach ink-blot, you know.
-- Alan Watts
--- cut here ---
Law lords say creation of Supreme Court is 'unnecessary and harmful'
By Robert Verkaik
Legal Affairs Correspondent
The Independent (U.K.)
05 November 2003
The creation of a new Supreme Court of the United Kingdom suffered a
setback yesterday when the country's most senior judges opposed a
central part of the reform
Six of the 12 law lords described the creation of the new court as
"unnecessary and harmful." They said the final court of appeal should
remain in the House of Lords and the cost of the change would be wholly
out of proportion to any benefit achieved. Two of their colleagues
abstained while a minority of four said they supported plans for the new
court.
And the law lords were unanimous in expressing "great concern" over the
abolition of the office of Lord Chancellor that was announced in the so
called "botched" cabinet reshuffle in the summer.
They said: "In the past, the Lord Chancellor's role was to uphold
constitutional propriety and champion judicial independence. The
constitution would be gravely weakened if that safeguard were removed
and not replaced."
The law lords also opposed any ultimate ministerial veto to the
appointment of senior judges - recommended by the newly proposed
judicial appointments commission.
Under the law lords' proposal, the Secretary of State for Constitutional
Affairs "would be bound" to accept the commission's recommendation but
he would have the right to ask the commission to think again.
Yesterday's document shows for the first time the extent of the law
lords' opposition to the reforms. Their 13-page report says: "It should
not be thought that the law lords as a body support the proposal to
establish a new Supreme Court of the United Kingdom.
"A number of serving law lords believe that, on pragmatic grounds, the
proposed change is unnecessary and will be harmful. They believe that
the law lords' presence in the House is of benefit to the law lords, to
the House, and to others including the litigants."
The paper adds: "Appeals are heard in a unique, suitably prestigious,
setting for this country's court of final appeal. The House of Lords as
a judicial body is recognised by that name throughout the common law
world."
Four law lords, including the senior law lord Lord Bingham of Cornhill,
supported the plan for a Supreme Court. The overall views of the two
remaining law lords, Lords Hobhouse and Scott, were not revealed in the
document. The report noted the Government did not appear to have
prepared a business plan or make a proper estimate of costs for any new
Supreme Court.
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