Dakar Delices

Theft, Non-fatal Offences, Criminal Law Elements of Proof

admin — Fri, 30 Jul 2010 15:22:53 +0000

THEFT AND NON-FATAL OFFENCES, STATUTORY AND COMMON-LAW PROOF IN CRIMINAL LAW CASES

(Based on author’s site www.geocities.com/crmlw)

> Theft and Related Offences

Theft says s.1 Theft Act 1968 is the dishonest appropriation of another’s property with the intention to deprive the other of it permanently. The actus-reus of it is in s. 3 ‘appropriation’ (‘any assumption of an owner’s right’) as can be changing price-labels to pay less: R -v- Morris 1983, or such ‘borrowing’ of a season-ticket in a way as makes it of no or little value: R -v- Llyod 1985 (‘property’ being, s.4, all property including money and things in action, but physical things as paper and not abstract things as knowledge copied from it: Oxford -v- Moss 1979, limitedly on wild-growing plants [unless uprooted] and on flowers-fruits-leaves [unless for sale]; ‘belonging to another’ is by another owned or in lawful possession or control of another, e.g. taking without payment from repairer: R -v- Turner 1971). The mens-rea of it is ‘dishonestly’ in s. 2 (defined in terms of: s. 2(1)(a) unless s/he believes it right in law to do so or s. 2(1)(b) that the owner in the circumstances would consent if knew or s. 2(1)(c) that the owner could not by reasonable steps be discovered), regarded as a two-stage test of ordinary standard of reasonable man and knowledge of it: R -v- Feely 1968 & R -v- Gosh 198; also ‘intention to permanently deprive’ as in Lloyd.

The Theft Acts provide also for other offences.

Obtaining property by deception is in s. 15 of the ‘68 Act , as theft but ‘by any deception’ -by false words or tricky behaviour: R -v- Bernard 1837 (pretending as business inducing investment & supply of goods) R -v- Gomez 1993 (unentitledly in Salvation Army uniform collecting money).

Obtaining services by deception is s. 1 of the ‘78 Act -it is as for property in the earlier Act.

Evading liability in s. 2 of the ‘78 Act is the offence of similarly avoiding e.g. debts.

Making off without payment (‘bilking’) is s. 3 of the ‘78 Act ~e.g. restaurant -without paying.

Robbery is s. 8 enabling theft by force or such threats, at the time or before, as would put in fear another of there and then being subjected to it ~theft with assault or battery -max.: life.

Burglary in s. 9 is mostly by trespass -by unauthorised entry to or to any part of any building (including caravans & house-boats lived in), s. 9(1)(a) ‘intending to steal or inflict grievous bodily harm or raping any person within it, or doing unlawful damage to it or anything within it as a trespasser,’ s. 9(1)(b) or upon entry as trespasser without such intention doing or attempting so ~it is can be tried by Magistrates -by a Crown Court if involves the intention to rape or cause grievous bodily harm

Taking a conveyance without consent is s. 12, taking, driving or being in, any thing constructed for carrying people by land, water, or air (except pedal cycles) ~it is a summary offence, normally, with max. 6 month imprisonment -unless aggravated by dangerous driving, or damage to it, or accident causing injury or damage (in the Criminal Damage Act 1971 ‘reasonable careful person test’ applies).

> Non-fatal Offences Against the Person

Non-fatal offences against the person are in part common law offences, and in part by statute; and, in order of seriousness, they are as follows:-

In Smith -v-Chief Superintendent of Woking Police Station 1983 entering a garden at night, by looking through a bedroom window terrifying a woman was an offence under s. 4 Vagrancy Act 1824 ~if intending to assault -words alone are not normally enough.

Assault is causing apprehension of immediate unlawful physical violence intentionally or recklessly -its charged under s.39 Criminal Justice Act 1998. Threats not capable of being carried out do not constitute it.

Battery is the intentional or reckless subjecting of another to unlawful force; and, as in the case of hitting one wit a missile, it need not be coupled by assault. This also is in common-law, charged under s.39 of the Criminal Justice Act 1998.

In both of these offences the mens-rea is intention: R -v- Spratt 1990, or by subjective recklessness: R -v- Savage 1991 was deliberate unreasonable risk taking, and R-v- Parmenter 1991: not if the risk is obvious but if malice was involved. While both the actus-reus and the mens-rea must exit at the same time, the mens-rea can be formed in the course of the actus-reus: Fagan -v- Metropolitan Police Commission 1969 -having accidentally driven car on policeman’s foot, refusing to move car when told had formed it

Satisfactory evidence of consent is a defence: R -v- Donovan 1934 (prostitute beaten by a stick for sexual gratification), if the offence is not a more serious one.

Assault Occasioning Actual Bodily Harm is a s. 47 offence and it is when battery, alone or coupled with common law assault, the statutory ‘assault’ of the Act is so serious that it is likely to interfere with the victim’s health and comfort -without cutting the whole skin, physically such as grazing and concussion: R -v- Roberts 1971, or: R -v- Chan & Fook 1994 as nervous shock in psychiatric terms: R -v- Ireland & R -v- Burstow 1997 (a direct physical attack is not a requirement, also e.g. silent telephone calls may constitute the offence of causing actual bodily harm. Its actus-reus is itself as the consequence by the ‘but for’ test, the objective test; it requires this to be coupled with the mens-rea in the form of intention or subjective recklessness: Roberts (where intentionally or subjectively recklessly there was unlawful force, which objectively occasioned the bodily harm). In Donovan consent was not a defence because actual bodily harm was caused ~the nature and the degree of the injury itself being the decisive factor in whether common assault was the offence involved -to which only it is a defence, or actual bodily harm or greater..

Unlawful Wounding is a s. 20 offence, and it is by any means unlawfully and maliciously wounding or inflicting grievous bodily harm. In the actus-reus the ‘wound’ is other than a broken collarbone: R -v- Wood 1830 or internal bleeding: JJC -v- Eisonhower 1983; it need not be serious. But ‘grievous bodily harm’ must be serious -although not necessarily permanent or life threatening, nor by a direct attack: R -v- Martin 1881. The mens-rea of it is ‘maliciously’ (intention or subjective recklessness) which applied as transferred malice in intended hitting in R -v- Latimer 1886; but in R -v- Parmenter where ‘neither could have intended nor realised injury’, and consent here too was no defence in R -v- Brown & Others 1993.

Wounding with Intent is s. 18, the most serious of the Act’s offences. It is ‘unlawfully and maliciously by any means whatsoever to wound or cause grievous bodily harm… with intent to do some grievous bodily harm.. or to resist or prevent the lawful apprehension or detaining… of any person’; its actus-reus is as for unlawful wounding, but its mens-rea is the intention to commit the crime, and proof of that is required, but it can be reduced to and dealt with as ‘unlawful wounding’ based on subjective recklessness: R -v- Constanza 1996 : it can be stalking and if silent telephone calls cause mental anguish as in R -v- Gelder 1944.

Assault occasioning actual bodily harm and unlawful wounding carry a maximum sentence of five years imprisonment, but wounding with intent carries, as maximum, life imprisonment.

> The General Elements That Must be Proved Before Establishing Criminal Liability

These have to be looked at first, in considering whether any offences may have been committed. Some of these are statute-based and some under common-law, their development having been much affected by such pressures as economic, social, and political. Usually specific are the features of each crime, but there are some common elements.

One is innocent until ad unless found in law not to b

e -except in strict-liability cases; this requires showing both that a guilty act was done, as well as that it was intentionally done.

Actus-reus is the criminal act: e.g., s. 1 of the Theft Act 1968 ‘dishonest appropriation’; or the criminal omission: e.g., s. 6 Road Traffic Act 1988 ‘fails to provide a specimen’; or a criminal a state of affairs or event: e.g., in Winzar -v- Chief Constable of Kent 1983 the charge of ‘found drunk in the highway’; or the criminal consequence: e.g., s. 47 Offences Against the Person Act 1861 ‘occasioning actual bodily harm’-which is a ‘result crime’ necessitating showing a casual link in fact or in law.

Causation in fact is determined by the ‘but for test’. In R -v- White 1910 the mother’s death having been from natural causes, poisoning her was not the cause, and it not killing.

Causation of law depend on the contribution of the intervening act. R -v- Roberts 1972 injury of jumping out the car was caused by sexual advances made to the woman in the car; in R -v- Pitts 1842 drowning was caused while escaping from an attack; R -v- Lewis 1970 broken leg resulted from escaping threats and attempt of violence; the reasonable act of the victim in seeking to escape being subjected to a crime was the link. Contributory negligence of the victim in R -v- Holland 1841 (self neglect) did not break the link, in R -v- Deer 1996 was still the significant operative in the death -it was killing, a thyroid condition unknown to the accused at the time did not change the ‘egg-shell skull rule’ and one took one’s victim as one found the victim -and R-v- Blaue 1975 (refusal of blood-transfusion on religious grounds) this applies also in respect to the spiritual condition of the victim. The sole cause of death need not be the act or the omission and in R -v- Pagett 1983 the ‘instinctive’ fatal shooting by a policeman of a human-shield was unlawful killing of the accused who had ’substantially’ caused it; while some reluctance was shown by the courts in treating intervening medical treatment as breaking the link and in R -v- Smith 1959 as much as by 75% reduction of it by that did not break the link, in R -v- Jordan 1956 palpably wrong medical treatment was the direct and the immediate cause of death, from R -v- Cheshire 1991 it is clear that the link can be broken.

Mens-rea is the fault-level of the accused in the act or mission; it is often included in the definition of serious crimes e.g., ‘with malice aforethought’; it is ‘the guilty mind’ by intention, recklessness, or gross-negligence.

Intention, for most serious crimes, has to be specifically shown, by a subjective test deemed by the jury to have been present, R -v- Moloney 1985: in the form of foresight of, R -v- Hancock & Shankland 1986: the probable consequences, wilfully and deliberately carried out ~or in R -v- Nadrick 1988 with virtual certainty of the probable consequences -which may be intention: Scalley 1955.

Recklessness in ss. 47, 20, 23 Offences Against the Person Act 1861 (actual bodily harm, grievous bodily harm, rape) show basic intention; it can be subjective: leaking ripped off gas-meter killed in R -v- Cunningham 1957; or objective: R -v- Caldwell 1981 (arson by drunk) -s1(2) Criminal Damage Act 1971: as to whether life would be endangered.

Negligence can be mens-rea in non-strict-liability offences of e.g. Factories Act 1961 -but only as a last resort; but gross negligence, often, is sufficient mens-rea in homicide cases: Adomako 1994

Strict liability does not require mens-rea e.g. Food & Drugs Act 1995 -in Meah -v- Roberts 1977 of the unfitness of drink for human consumption the accused was innocent yet still guilty ~but in Warner -v- Metropolitan Police Commissioner 1969 (dangerous drugs case) ‘one cannot be in possession the contents of a package when he/she does not know what it is’.

These are an outline as guidelines; laws change, always ascertain current law.

The author has a website at: http://www.geocities.com/eoa_uk

Recruitment in the Army

admin — Fri, 30 Jul 2010 15:22:24 +0000

To enlist for military service is a dream for many students. It involves a lot of discipline thorough the job training, advance study monetary assistance, the need to cultivate leadership skills, lead an adventurous life and above all the urge to serve the country. If you want to enlist yourself with the military services, you can opt for the online application procedure. The recently developed army enlistment process allows the candidate to first evaluate and match his interests and abilities and only then decide on which job category he fits into. It also helps candidates with the entire recruitment process.

The information collected by the army enlistment personnel is kept private and confidential until the candidate himself chooses to divulge it to a recruiter. You will first come across a set of questions that you can complete all at once or save it, to complete later. Once the questionnaire is completed, the enlistment process starts matching your profile and interest with a detailed list of services in the database of the army server and then it lets you know about the results. The questionnaire involves:

Step 1:

The first step enquires personal information. This is an important step and hence you need to provide all the information accurately, so that the database can provide a list of jobs best suited for you.

Step 2:

Next, choose the timeframe in which you want to apply for the service, so that the database can check for the available jobs within that time frame.

Step 3:

Searching for the availability of jobs may take some time and in that time you can review and select the jobs of your preference.

Step 4:

Once you get the list of jobs available, matching your profile, start prioritizing them as per your interests.

Step 5:

The online enlistment procedure has the Army Career explorer option that guides you in a simple way to begin your online enlistment procedure. After the first step, take the help of the career explorer and keep on providing information within the slots provided. Finally, when you have finished completing the application, send it to your military recruiter. To discuss the other details about the recruitment process, your recruiter will contact you.

The U.S military offers 4,100 jobs in various categories. Choosing from such a list is not easy and it is absolutely imperative that you choose the job that not only interests you, but also matches your skills. Read the brochure thoroughly and dont rely only on military recruiters. You can also log onto a chat room, one that caters to military personnel and ask the newly recruited candidates all the questions that bother you. A much better option would be talking to a person who has military experience, who is currently serving or has successfully completed both, the basic and advanced military training.

However, avoid talking to those who left the military under less-than-honorable services, like those who were discharged for non-compatibility. You need to take the entrance test for enlisting in the service. If you are opting for a service after secondary school education, you can opt for ASVAB, but if you desire the officer rank after finishing college, your ACT and SAT scores will have to be good enough. You can avail of additional choices in the military if you perform well and score well. Therefore, dont take the ACT or SAT scores lightly and study well, before taking the exam.

The Nigeria Army and the War within

admin — Fri, 30 Jul 2010 15:17:37 +0000

Following the continuation in the struggle for justice by an Army officer Lt. Colonel Silas Jock Santoi of the training and Doctrine Command of the Nigerian Army who has sued President of Nigeria Umaru Musa Yar’adua and three others to court, over unfair treatment to him by the Army and the Federal High Court.

Col. Jock who had been having a running battle with the Nigerian Army since he was recommended for United Nations posting after completing a postgraduate Diploma in Strategic Studies (PGDS) in the University of Maiduguri told Nigerian Tribune that he is presently in court asking the Court to compel President Yar’adua whom he had earlier sent a Petition on his matter to intervene for him to set up a commission of enquiry to uncover the truth in his case that has been frustrated for long.

The case in question started when he completed his PGD programme and was supposed to proceed on a United Nation’s assignment based on the recommendations of the then Chief of Army Staff (COAS) Lieutenant General Victor Malu. However, he was denied such privilege by some officers in Army Headquarters on the excuse that he went to school without approval of the Sponsorship by the army, despite the official release of the officer by his unit to proceed for the course. The officer then protested on the allegation and his matter was investigated and vindicated by the Army Superior Authority (ASA) in a letter Dated 29th, April 2003 and the Army Council approved this recommendation but the Army neglected to implement it.

As a result of the Army failure to implement the said approved recommendation, the officer further forwarded his complaint to the National Assembly who also investigated and advised the Army to do justice to the matter. Instead, the Army falsified a medical report produced by and Army Ophalmologist that the officer has a psychiatric problem with the intention to subject the officer to retirement on Medical ground. Hence the officer, base on the advice by a legal counsel who referred the complaint to the Federal High Court for determination of the controversies involved in the matter.

That since the matter was taking to court in 2004 there has been series of transfer from one judge to the other and frequent changes from one lawyer to another without the matter achieving the justice it requires all this according to the officer is because of conspiracy against justice in the matter. This however led to the officer making a petition to the National Judicial Council (NJC). The council intervened in the matter and directed the then Chief Judge, Justice Abdulahi Mustafa of the Federal High Court to take necessary action to conclude the matter but nothing positive has been done till date.

However, in a statement from Army Headquarters, signed by the Director, Army Public Relations, Brigadier Chris Olukolade, described Lt.Col.Jock’s suit as an attempt to rubbish the army.

“The legal department of the ministry of Defense is handling the matter on behalf of the defendants. Our advice to Lt. Col. Jock and only response to his petition and publications is meeting us in court!

“There is no record anywhere that Lt. Col. Jock was tried by a court Martial. And our records show that he has been lawfully retired from the Nigerian Army with extant Terms and Conditions of Service, TACOS applicable to the Nigerian Army” The statement emphasized.

In his reaction, Lt. Col. Jock insisted that every action he had taken since 2001 to date was guided and in compliance with the Armed Forces Act of 1993, section 178.

“My request to be tried by a court martial was denied in flagrant violation of section 117 of the Armed Forces Act of 1993.”He insisted.

On the issue of retirement, Lt. Col. Jock said he has not been lawfully retired from the Nigerian Army, and that the Federal High Court of Nigeria can bear witness to this, because according to him he went to court in 2004, as a serving military officer to seek redress, which is yet to be determined by the court.

“I have consistently been present in court for my matter and always properly dressed in my army uniform because I consider going to court as an official duty. Even in my last appearance in court on October 29, 2009, I was visibly present in my army uniform.

“Please note that the Terms and Conditions of Service (TACOS) are very clear on this issue. The provision for security of service of a commissioned officer clearly states that, ‘no Commissioned Officer holding a commission of the rank of Lieutenant and above shall be called upon to retire, relinquish or resign his commission or transfer to reserve, or shall pressure be exerted on him to do so. Except by the authority of the Army Council.’ note also that ever since I made my seeking for redress in court, there has never been any communication between the Army Council and me in respect to retirement.

“There is another provision from the same document I quoted above that says, ‘any officer forced to retire after 15 years for reasons not traceable to indiscipline shall have his full pension and benefit on his salary based on the number of years he had served as at the date of retirement.’

“But ever since the Army illegally stopped my salary and benefits in 2005 for no just reason neither have I been notified by the Army, while this complain to seek a redress was still pending in court, no kobo has been given to me to date by the Army authority. So who is fooling who?”He asked metaphorically.

“Even if the Army Council advices an officer to apply for retirement he has the privilege to admit on that or else he will apply for an interview to the COAS and the Hon. Minister of Defense as the case may be to clarify as the reason for retirement.”He stressed.

He then explained that there has never been any report from the media or to the court that he has been dismissed or retired. In contradiction to a report credited to Col. Muhammad Yusuf, a former Director of Army Public Relations in one of the national dailies in November, 16th, 2005 on the pending matter of Sgt. Roggers and Maj. Al-Mustapha, the former Chief Security Officer to Late Gen. Sani Abacha.

The report clearly explains that Rogers and Al-Mustapha like any other personnel facing trials, Court Martial and any other disciplinary problems remain Army personnel until Army Council finds them guilty and that until that happens, such personnel remains in service. Col. Yusuf further confirmed that Sgt Roggers and Maj. Al-Mustapha are never dismissed or retired and that they are still being paid salary despite the fact that they have been in detention since 1999.

On the issue of his denial of fair hearing in the Federal High Court, he maintained that the Court has a constitutional obligation to determine the controversy in any of the matter that is pending before it, in accordance to the rule of law. Referring to other military personnel whose matters have been treated in the courts.

For instance, Captain Yahaya Ibrahim Shinko, Suit number FHC/KD/CS/4/2004 in the Federal High Court, Kaduna, whose redress was granted and the court ordered the Army to re-instate and promote him to the rank Major. Another one is that of the Appeal Court which also make void the dismissal of Brigadier General Aminu Kano against the Army General Court Martial which convicted and sentenced him in October 20th 2006.

Another interesting case was that of Major Jacob Iyela, which the Supreme Court re-instated after Army Court Martial dismissed him for ten years on the grounds of alleged unlawful possessions of firearms. The apex court ordered the settlement of his salaries and other entitlements.

In another case of twenty-seven soldiers jailed for mutiny attended by the verdict of a General Court Martial, which tried the returnee United Nations Peace Keepers. The Supreme Court again ordered for their release from jail and immediate re-instatement.

The Chie

f of Army Staff (COAS) Lt. Gen. Danbazau was once quoted to have said during the Nigerian Army law seminar in Abuja that the era of disobedience to court orders by the Army is over.”Now the question is why should my own case be treated differently since 2004 till date at the Federal High Court?”Lt. Col. Jock lamented.

On his petition to the Independent Corrupt Practices and Other Related Offences Commission (ICPC), the embattled army officer said his action is quite in order. Because Section 178 (3) of the Armed Forces Act of 1993, the law of the Corrupt Practices and Other Related Offences Act 2000 and section 39(1 and 3) of 1999 constitution, all empower him with the right to take such actions.

“The petition has been made due to manner of conspiracy against justice in my matter in the Federal High Court, which is in clear violation to the rule of law.

“I was reliably informed that the ICPC was to treat my petition, but was pressured against it by the presidency with the view to cover up my matter. Which is very unfortunate at the time the country is fighting against corruption and if the judiciary is not at this time sanitized at this time, there is hope for achieving the purpose of fighting corruption.” He complained bitterly.

“For example, the Arewa Consultative Forum (ACF) which I suppose is saddled with the responsibility of protecting the interest of northerners. My experience however shows that the ACF appears not to be helping matters as it concerns Yar’Adua’s effort to achieve his cardinal policy of rule of law.

“I had reported a matter of abuse of rule of law to the forum sometimes in 2007, under the leadership of late Chief Sunday Awoniyi .They took interest in my case and made efforts to introduce me to one of the elders who is a legal practitioner to take up the matter. Nevertheless, the present leadership under Maj. Gen. I.B. Haruna (rtd) who was in the military and a lawyer overturned it to cover up the matter.

“Another one is the action of the former judge of the Federal High Court, Justice Abdullahi Mustapha; also a northern elder who allowed his office to be abused to cover up the truth in my matter. This was done against the directive from the National Judicial Commission (NJC) to him to personally handle the case.

“I have also in the past reported this matter to some of my fellow prominent northern leaders, such as the Kaduna state governor, Arc Mohammad Namadi Sambo, retired and serving Generals, legal practitioners, including SANs among others, but all in vain simply because they want matters covered up.

In conclusion, Lt. Col. Jock advised the Director of Army Public Relations to kindly concern its publication to issues or prayers that are before the court. This mainly centered on false accusations, denial of fair hearing, ill-treatment and conspiracy against justice in the court rather than his attempt to divert the attention of the public on an unfounded issue of retirement that has nothing to do with his matters before the Federal High Court. Moreover, any attempt to bring retirement issue to court, that will be contemptuous against the court proceedings, which my previous counsel has properly advised the Army on this. I am now awaiting the outcome of the determination of my cases in the court since it is a constitutional obligation to the court to determine the controversies in all my complains that have been frustrated since 2004.