Criminal Law : Sentencing: UPDATE: Jamaicans call for changes to sentencing schedule

The following article appeared on the Website of the Ministry of Justice :

JAMAICANS CALL FOR CHANGES TO SENTENCING SCHEDULE

Jamaicans attending the three justice reform consultations in Kingston, St. Ann and St. Thomas last evening (March 15) have advocated for more creative sentencing in order to achieve equity in the treatment of offenders and to reduce overcrowding in prisons. A recommendation was made from a member of the public for sentencing guidelines similar to what obtains in the United States of America to be introduced to the Jamaican Justice System. According to Mrs. Susan Reid-Jones, Project Advisor, Jamaicans feel that there was disparity in how persons were being sentenced for offences of a similar nature. “This is a matter that has been raised in just about every fora that we have held. People feel that there is need for greater consistency in sentencing”, she said.
Other concerns that were expressed in the consultations included overcrowding in cells and holding areas, improving access to legal aid, increasing the number of lawyers and their remuneration. Persons also raised the matter of how users of the court system were being treated by court staff and judges, arguing that judges should see themselves as providing a service to the public. Mrs. Reid-Jones said that there was general agreement that legal fees were too high and out of the reach of ordinary Jamaicans. She said that persons attending the consultations complained that lawyers do not attend Court until the entire legal fee has been paid.
Meanwhile, Project Manager of the Jamaican Justice Reform project, Mr. Peter Parchment, speaking on the importance of the consultations, said that the reform process was designed to engage a wide cross section of the Jamaican public in keeping with the principles and objectives of the Government’s Consultation Code and the need to ensure the credibility of the reform process. “We are using the process as an opportunity to empower the Jamaican people, improve their knowledge of the court and justice system and to ensure that the long-term development of justice service delivery reflects the views and responds to the needs and concerns of the Jamaican people. We understand that there are different perspectives on the direction of our justice system but we are confident that these consultations will result in consensus in some critical areas”, he said.
The justice reform project is expected to develop strategies and mechanisms to facilitate the modernization of the justice system to meet the current and future needs of Jamaicans. A final report on the consultations will be submitted to the national consultation which is scheduled for May this year.

Criminal Law: Sentencing: UPDATE : Earl Pratt to be released from prison

The following story appeared in the May 12 2007 edition of the Gleaner :

From death row to freedom - Earl Pratt to be released after decades in prison

published: Saturday May 12, 2007
Glenroy Sinclair, Assignment Coordinator

More than a decade after the United Kingdom Judicial Committee of the Privy Council recommended that his death sentence should be commuted to life imprisonment in a landmark ruling for the Caribbean, Earl Pratt will be released this month from prison.

"The Department of Correctional Services is awaiting a formal notification regarding the status of parole applicants for May 2007," Major Richard Reese, commissioner of corrections, disclosed yesterday.

The Gleaner understands that Pratt, now in his 50s, and another high-profile inmate, Mary Lynch, 62, who was convicted for killing her husband in the early 1990s, are likely to be released as early as next Friday, but Commissioner Reese is awaiting the parole unit to complete the paper work.

The 1994 Privy Council ruling was a landmark case for Pratt and his long-time friend, Ivan Morgan, who later died of natural causes in prison. Both were sentenced to death for the October 6, 1977 murder of Junior Bissick. On three separate occasions the death warrant was read to them and they were removed to the condemned cells, located next door the gallows, at the St. Catherine correctional facility, the maximum-security prison in the parish.

Breach of their rights
But after waiting more than five years to be executed, the U.K. Privy Council cited a breach of their constitutional rights, under Section 17 (1) of the Constitution Act, which provides that 'no person shall be subjected to torture or to inhuman or degrading punishment'. This was after they had appealed the case.

The Privy Council recommended in 1994 that because Pratt and Morgan were on death row for more than five years after their conviction, they should not be hanged. At the time, the recommendation of the UK Privy Council provided reprieve for 110 other death row inmates in Jamaica, who were also waiting for more than five years to be executed. No one has been hanged in Jamaica since 1988.

Criminal Law: Sentencing; Insanity

The following article appeared in the Trinidad and Tobago's Newsday.

‘Free’ after 39 years
By FRANCIS JOSEPH Thursday, May 24 2007

SEVENTY-TWO-YEAR-OLD Christopher Ventour walked out of the St Ann’s Psychiatric Hospital a free man yesterday afternoon after spending the last 39 years there. But Ventour only tasted freedom for 20 minutes – there were no relatives or friends to meet him, nowhere safe for him to go, so on the advice of his lawyers, Ventour was readmitted to the hospital for “safe-keeping.”

Ventour was found guilty, but insane in 1968, for killing a young man in La Brea. He was the longest serving prisoner in Trinidad. His brief taste of freedom came yesterday after Justice Mustapha Ibrahim ordered in the morning that he be released forthwith in keeping with a Cabinet minute dated January 5, 2006. Ventour walked out of Ward 20 shortly after 4 pm with his lawyers Mark Seepersad and Gerald Ramdeen. He looked frail and weak. He had to be assisted by a hospital orderly. He walked slowly and at times appeared as if he was about to fall. There was a fluid bag hooked up to him due to a bladder problem. The first thing he did was to smoke a cigarette given to him by another inmate who was elated that Ventour was being released. Approached by reporters, Ventour said he was happy to be out of the hospital after 39 years. He insisted he was going home to his wife, although his lawyers reported that she had died a long time ago. He could not say how many children he has, although he said some live in the United States and others were “all over the place.”

Ventour said he intends to stay out of trouble. “I feel very happy to know I am leaving,”Ventour told Newsday. He said he hopes that his mental problems of 39 years ago would not affect him in the future. He said before he was arrested for murder, he used to hear voices in his head. Whenever that happened, he used to react and get violent. It was during one of these violent times, that he killed a young man, a crime for which he was tried and found guilty, but insane. He said he asked for help when he heard the voices, but no one took him on.

Then Ventour asked, “The man I killed? He dead yet?” Then he took another puff of his cigarette. Ventour was convicted before Trinidad and Tobago’s first female judge – Elizabeth Borne – and he was represented at his trial by Aeneas Wills. In 1998, doctors recommended that Ventour be released, but nothing was done. On January 5, 2006, Cabinet agreed that Ventour and other persons be released, but they remained warded at the hospital. On Monday, Justice Ibrahim ordered the release from St Ann’s of six prisoners – Simon Habib, Junior Collins, Wayne Allen, Roger Sobers, Winston Solomon and Lennard Sylvester. Ventour was not released on Monday because of a mix-up with his name. When the matter was called yesterday, Justice Ibrahim wasted no time in ordering his release. The judge gave the State until June 6 to decide on another prisoner Miguel Francois. Failure to take action by then will result in Francois also being released by court order.

Criminal Law: Sexual Offences: Law amendment

This appeared in today's edition of the Gleaner Newspaper :

Sex laws report for Senate tomorrow
published: Thursday June 7, 2007

Far-reaching proposals contained in a report drafted by the parliamentary committee, which examined the Offences Against the Person Act and the Incest Punishment Act, will be tabled in the Senate tomorrow.

The committee wrapped up its final meeting in Gordon House yesterday, after putting the finishing touches on recommendations to amend laws relating to rape, incest and other sex crimes.

Changes proposed by the committee over its seven-month-long sitting will afford more protection to vulnerable persons, including the mentally challenged, women and children.
Chairman of the committee, Senator A.J. Nicholson, who is also the Attorney-General and Justice Minister, said the report should be debated in less than two weeks.

.
Preparing new legislation

He said the Office of the Chief Parliamentary Counsel had the task of preparing new legislation, which would be reviewed by Cabinet and introduced in the House for debate before the end of the calendar year.

Highlighting some key areas covered in the report, Senator Nicholson mentioned the definition of rape and sexual intercourse, marital rape, abolition of the common law presumption that a boy under 14 years was incapable of committing rape; incest and related matters.

Senator Nicholson argued that the companion pieces of legislation impacted mostly on young women.

He explained that certain activities that were reported to have taken place in schools, were alarming.

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Another interesting incest case was reported in the Observer today as well.

Schoolboy remanded for having sex with mother

By T K WHYTE Observer correspondent

Thursday, June 07, 2007

SPANISH TOWN, St Catherine - A 15-year-old schoolboy who pleaded guilty to having sexual intercourse with his 44-year-old mother, who the police described as an imbecile, was remanded to a place of safety Tuesday, when he appeared in the Spanish Town criminal court.The boy's father was charged with aiding and abetting the offence, and was offered $80,000 bail with surety. They are return to court on July 3 when the case will again be mentioned.
The boy was charged with incest and defilement of a female imbecile, while his father was slapped with charges of aiding and abetting carnal abuse and aiding and abetting the defilement of a female imbecile.
Senior St Catherine resident magistrate Lorna Errar Gayle also ordered that the court apply to the Director of Public Prosecutions for a nolle prosequi, to allow the case to go directly to the St Catherine Circuit Court for trial.
Detective sergeant Kirk Roach of the Guanaboa Vale police told the court that between December 2006 and January this year, the boy confessed to sexually assaulting his mother six times in the one room shack where he lives with his parents and three sibblins.
Although the mother reported her son's behaviour to his father - her common law husband - he took no action, and when she became tired of her son's abuse, she told neighbours who alerted the police.A visibly distraught Errar Gayle questioned the boy, who admitted to having sexual relations with his mother, and using a condom "one of the time."
The father told the judge he knew his son was "troubling him mother". "I talk to him and beat him two times and tell him not to go back and (I) move him out of the room," he said.
The police's account of the family also prompted the judge to order the Child Development Agency to investigate.According to the police, the father and his common law wife live with their three other young children at the house under deplorable and unsanitary conditions.
One of the children, a nine-year-old girl, reportedly had a wound to the head which was infected by maggots.The father told the judge that he had filled the wound with crushed crackers and corn meal to stop the maggots, but it did not help, so he took her to a doctor who had given him a prescription which he had not yet filled.

Criminal Law: Sexual Offences : Carnal Abuse

Statute : The Offences Against the Person Act

Section 48 : Carnally knowing girl under twelve.

(1) Whosoever shall unlawfully and carnally know and abuse any girl under the age of twelve years shall be guilty of felony, and, being convicted thereof, shall be liable to imprisonment for life.

(2) Any person who is convicted of an attempt to have carnal knowledge of any girl under the age of twelve years shall be liable to imprisonment for a term not exceeding ten years.

Section 50: Above twelve and under sixteen.

Whosoever shall unlawfully and carnally know and abuse any girl being above the age of twelve years and under the age of sixteen years shall be guilty of a misdemeanour, and being convicted thereof, shall be liable to imprisonment for a term not exceeding seven years: Provided that in the case of a man of twenty­three years of age or under, the presence of reasonable cause to believe that the girl was over the age of sixteen years shall be a valid defence on the first occasion on which he is charged with an offence under this section.

78. Proof of carnal Knowledge.

Whenever upon the trial of any offence punishable under this Act, it may be necessary to prove carnal knowledge, it shall not be necessary to prove the actual emission of seed in order to constitute a carnal knowledge, but the carnal knowledge shall be deemed complete upon proof of penetration only.

**

**

**UPDATED : MAY 16, 2007**

** 1. "...while the Offences Against the Person Act stipulates that a man prosecuted for carnal abuse receives a sentence of life imprisonment, a man between the ages of 20-23 can be found guilty of only a misdemeanour, if he can prove he had reasonable cause to believe the child was over 16 years old the first time he is charged for the offence." Read this article which appeared in the June 4 2006 edition of the Gleaner.

.

**2. The following article appeared in the Jamaica Observer on November 27, 2006 :

17-year-old sentenced to 3 years probation for carnal abuse
reported in the Jamaica Observer by Paul Henry

Monday, November 27, 2006

A judge jokingly told a 17-year-old youth who was sentenced to three years probation for carnal abuse in the Home Circuit Court on Friday to temporarily quit studying Biology in school as he had already completed the practical.
Justice Lloyd Hibbert made the comment after Attorney-at-Law Jean Barnes informed him that her client - a former Calabar High School student - was furthering his studies. As Barnes mentioned the subjects her client was pursuing at his new school, the judge interrupted when she listed Biology among them.
"Biology?" Hibbert asked. Hibbert then told the youth to drop Biology for a while as he had already "done the practical before the theory".Last June, a 13-year-old girl told her mother and the police that the youth was her "boyfriend" and that the two had had sex.
The girl left home for school on June 13, and when she did not return home her mother made a report to the Lawrence Tavern police in St Andrew. The youth was arrested and charged on June 19 for having sex with the girl. Based on information the mother received, the two were found at a house in Lawrence Tavern.The youth recently pleaded guilty to carnal abuse. Barnes told the court that the 13-year-old was introduced to her client by a mutual friend, and that the girl had expressed a desire to have sex with him.
Barnes added that adults find it difficult to control their sexual urges, much more a "boy his age" and that under the circumstances, it was difficult for her client to refuse having sex with the 13-year-old.

-

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**3. The following article appeared in the Jamaica Observer's April 23rd 2007 edition.

Are suspended sentences appropriate for carnal abuse?

Margarette May Macaulay

Monday, April 23, 2007
.

I have received many phone calls and have engaged in many discussions both public and private about the suspended sentence being enjoyed by the very adult male of the media for his carnal abuses of a 13-year-old girl over a period of 2 or 3 years.
It was also reported that in the course of the period of his violations of the child, he threatened her life if she ever reported his abuses. In the course of these calls and discussions, many requests were made of me to write a column about it, I consequently now do so.
Let me start by saying that I was rather startled to learn the identity of the judge who pronounced that her sentence of the convict would be suspended for a period of years, (the number now escapes me), because I have always found her to be caring, sensible and appropriately judicial in her conduct and pronouncements throughout matters conducted before her. I must say though that her sentence does not make sense to me.
We do not know what was contained in the indictment. Was there only one count in the indictment, or were there multiple counts? You see, each sexual violation/each sexual act of carnal abuse is an offence.
So, if that man had committed the act of carnal abuse 20 times, for example, there should be 20 counts charged because each is a separate offence. The number of counts charged in the indictment will, of course, depend on the cogency of evidence which exists to prove each and every separate act. This evidence would include the date, time and place the sexual violation by the perpetrator is alleged to have occurred. These must form a part of the wording of the counts charging the offence in the indictment.
From the media reports of the matter, on first blush, as the report related to violations over a number of years, it would seem that the indictment would have included several counts. However, this is merely a conclusion arrived at because of the length of time alleged during which the adult male violated the child. If only one charge of carnal abuse was laid, I conclude that the DPP did not have enough evidence to lay more than one. Read the continuation of the article.

Criminal Law: Crimes by Omission

Please take a look at the Lecture Notes on the website of Sixth Form Law.

Criminal Law: Unlawful Act Manslaughter, Causation: Specimen Answer

Many of you have asked me to do this so, below is Question 4 of your recent test. I have provided a specimen answer to the question. Note the organisation in the answer, the application of only the relevant cases, the analysis of the issues.

You will notice that I have not come to any conclusion as to Fitzroy's guilt or innocence of manslaughter. I have done this deliberately as I believe it is up to the jury to decide this. I have, however, discussed Fitzroy's liability, which is what is required by the question. If, however, the examiner had asked me to decide whether or not Fitzroy is guilty or not, then I would be required to state in my answer whether he is or is not guilty.

......................

Question 4 :

One Sunday afternoon Julia, 7 years old, was walking with some other children across a path. Julia came into contact with a live electric wire and was electrocuted. That wire had been illegally connected by Fitzroy to a Jamaica Public Service Pole and it ran across the path and a stream up to a house belonging to Fitzroy.
When efforts were made to rescue Julia from her predicament, another child, 8 year old Mark, who was using a piece of stick, received a shock and became unconscious. Mark also suffered severe burns to both his hands.
Mark was allergic to penicillin (an antibiotic) and wore an allergy alert bracelet on his right hand.
After 3 months, Mark developed an infection in the area of the burn while still in the hospital and was treated with penicillin. He had a severe allergic reaction which left him unable to breathe on his own. Six days after receiving the penicillin Mark died.

With what, if anything, can Fitzroy be charged for the deaths of Julia and Mark?

Note : this situation question has been adapted from the facts of the Jamaican case which may be found at the following citation: R v Fitroy Greenland 27 JLR 558


Sample Answer:

For both the deaths of Julia and Mark, Fitzroy can be charged for manslaughter as a result of an unlawful act. However, in the case of the charge for Mark’s death, Fitzroy may argue in his defence that the chain of causation has been broken and thus, if he is successful, he may be acquitted of this charge.

In order to secure a conviction for manslaughter by an unlawful act, the burden of proof rests on the prosecution to prove, beyond a reasonable doubt, four things.

The first thing the Prosecution must prove is that Fitzroy had actually committed an unlawful act. The case of R v Franklin held that the unlawful act must be a crime. It is submitted that the prosecution would have no problem in proving the unlawful, criminal act. In this case, the unlawful, criminal act is the illegal connection by Fitzroy of the electricity wires to the JPS Poles.

Secondly, the case of R v Lamb states that prosecution must prove that Fitzroy intended to commit the unlawful act albeit that he did not intend the tragic consequences that followed.
In order to prove the mens rea for unlawful act manslaughter, the Crown must establish that Fitzroy possessed the necessary mens rea for abstracting electricity [under the Larceny Act section 15]. The mens rea must go to the unlawful act itself. In this case, the mens rea required for the crime is maliciousness (intention or recklessness) or fraud. It must be noted, however, that it is not necessary for the prosecution to prove that the defendant realised the risk of causing some harm. As long as the reasonable man in his position would have so realised, this is sufficient mens rea.

So the Crown must show that the act was dangerous in the sense that a sober and reasonable person would inevitably recognize that it carried some risk of harm.This is the third thing to be established by the Prosecution. The case of DPP v Newbury and Jones stated that in judging whether the act was dangerous, the test is not whether the accused recognised that his act was dangerous but rather whether all sober and reasonable people would have recognised its danger.The test of whether an act is dangerous, therefore, is whether the sober and reasonable man would have appreciated that the act was dangerous in the light, not only of the circumstances actually known to the accused but also of any additional circumstances of which that hypothetical person would have been aware.

The fourth element required to be proved by the prosecution is that the act was a substantial cause of the deaths of both Julia and Mark.

To establish causation it is necessary to ask whether the defendant in fact caused the specified consequence of the offence. In other words, "But for what the defendant did would the consequences have occurred?"

In the case of Julia, it is submitted that the prosecution should have no difficulty establishing that the electric shock received by Julia was the operating cause of her death. As she received that shock because of her coming into contact with the live wire as a result of Fitzroy’s illegal electrical connection, Fitzroy would no doubt be convicted of manslaughter. In other words, but for Fitzroy’s actions, Julia would not have died. In order to escape liability, Fitzroy would, it is submitted, have to set up a defence negating either the mens rea or the actus reus.

Mark’s death, however, may have a different result. It may be argued logically that had it not been for Fitzroy’s unlawful act the sequence of events concerning Mark would not have happened, i.e. Mark would not have had to try to save Julia and thus receive the burn to his hands (which required his hospitalization) which then became infected and had to be treated with an antibiotic.

However, this argument would go too far as it would appear from decided cases that there may have been, in this case, an intervening act which broke the chain of causation. In R v Jordan, following his being stabbed by the defendant Jordon, the victim died in hospital, after receiving treatment to which he proved allergic. Even though his allergy was known, the doctors still gave him the medication to which he was allergic. It was held in that case that the treatment was palpably wrong and thus constituted a new intervening act, breaking the chain of causation. The defendant was acquitted of the murder.

However, in the case of R v Cheshire, the victim, having been shot by the defendant, had to be admitted to hospital where he received a tracheotomy. Six weeks after receiving the tracheotomy the victim developed breathing problems and it was shown that the hospital had been negligent in its treatment of the victim as they had not properly recognized the cause of the victim’s breathing problem. The court held that this did not break the chain of causation. So long as the defendant’s actions contributed significantly to the death, his actions need not be the sole or even the main cause of death. The court further stated that medical negligence or even recklessness did not exclude the defendant’s liability unless it (the medical negligence/recklessness) was so independent of his acts and so potent as to make his own contribution insignificant. Only in the most extraordinary and unusual case would treatment, whether right or wrong, given in good faith by a generally competent doctor, be regarded as independent of the original injury.

It was further emphasized in R v Smith that if, at the time of death, the original wound was still an operating cause and was still a substantial cause of the death, then death can be said to be a result of the wound even though some other cause is also operating.
Only when the second cause of death is so overwhelming as to make the original wound merely part of the history can it be said that death does not flow from the wound.

Fitzroy could raise this issue as a defence to the charge against him for Mark's death. In doing this he might very well be successful in, at least, raising some doubt in the minds of the jurors that the treatment received by Mark in hospital was a new intervening act which broke the chain of causation between his unlawful act and Mark's subsequent death.

If the prosecution is not able to overcome this reasonable doubt in the minds of the jury, then they have not successfully proved that Fitzroy's act caused Mark's death.

Fitzroy would be acquitted of the charge of manslaughter (by an unlawful act) of Mark.

(c) wrongjungle 2007.

Criminal Law: Strict Liability: Dangerous Drugs Act -Jamaica

Below are important sections of The Dangerous Drugs Act :

1. Definition of Ganja:
Section 2: “ganja” includes all parts of the plant known as cannabis sativa from which the resin has not been extracted and includes any resin obtained from that plant, but does not include medicinal preparations made from that plant;

2. Taking Steps preparatory to exportation of dangerous drugs:
Section 13 (5) : Every person who exports, causes to be exported, or takes any steps preparatory to exporting, any dangerous drug from the Island except under and in accordance with, the provisions of this Act shall be guilty of an offence against this Act.

Section 7A (1) Every person who imports or exports or takes any steps preparatory to exporting ganja shall be guilty of an offence…

(2) Where there is evidence-

(a) that the ganja for which an accused person has been charged under this section is packaged in such a way as to make it reasonably suitable for exporting; or
(b) that the ganja for which a person is charged was found to be in or at any prescribed port or place,

that evidence shall be prima facie evidence of steps being taken preparatory to the exporting of the ganja by the person charged.

Section 7B. Every person who deals in ganja; or

(a) cultivates, gathers, produces, sells or otherwise deals in ganja; or

(b) being the owner or occupier of any premises, uses such premises for the cultivation or storage of ganja or the selling or otherwise dealing in ganja or knowingly permits such premises to be so used;
or
(c) uses any conveyance for carrying ganja or for the purpose of selling or otherwise dealing in ganja, or being the owner or person in charge of any conveyance, knowingly permits it to be so used,

shall be guilty of an offence

3. Possession of Ganja :

Section 7C : Every person who has in his possession any ganja shall be guilty of an offence…

>>>Case Law:

1. Warner v Metropolitan Police Commissioner [1969] 2 AC 256 (upheld in R v McNamara (1988) 87 Cr App R 246) :

This case concerned possession of prohibited drugs. D who sold scent as a side line, collected two boxes which had been left for him at a cafe. One box contained scent, the other controlled drugs. D said he assumed both boxes contained scent.The Court of Appeal held that if D was in possession of the box and he knew the box contained something, he was inpossession of the contents, whatever they were.

-Criminal Law by J.C. Smith & Brian Hogan 7th edition

2. R v Lewis (1987) 87 Cr App R 270 :

The tenant of a house might be found to be in possession of drugs found on the premises although he did not know they were there provided he had the opportunity to find out that they were. Possession was being 'knowingly in control of a thing in circumstances which have involved an opportunity (whether availed of or not) to learn or discover, at least in a general way, what the thing is'.

-Smith & Hogan Criminal Law by David Ormerod 11th edition

3. R v Brian Bernal & Moore P.C App 56/96 [28.4.97]:

Issue: What is the Mens Rea required where accused charged with possession of ganja which is in a sealed container?

The court must be satisfied that the accused knew :

a. that he had the container; and

b. that the prohibited substance was in the container

4. R v Sylmore Dawkins RMCCA 77/89 [6.3.90] :

At a Jamaican airport a police dog sniffed out a piece of luggage while it was at the baggage chute. The baggage tag bore the name of Sylmore Dawkins. Dawkins claimed the suitcase when he was boarding the plane. When the suitcase was opened several tins were found and in them were vegetable matter resembling ganja.

Issue : was there sufficient evidence from which the inference could be drawn that the appellant had knowledge that the tins contained ganja?

The court held that the totality of the evidence was sufficient, to allow the learned resident magistrate to draw the inference she did and to conclude from all the circumstances that the appellant knew that ganja was in the tins.

- Harrison's Law Notes & Materials (2000)

Section 7D. Every person who-

(a) being the occupier of any premises knowingly permits those premises to be used for the smoking of ganja; or

(b) is concerned in the management of any premises which he knows is being used for such purpose as set out in paragraph (a); or

>>> Case Law :

1. Westminster City Council v Croyalgrange Ltd [1986] 2 All ER 353 :

...it is always open to the tribunal of fact...to base a finding of knowledge on evidence that the defendant had deliberately shut his eyes to the obvious or refrained from enquiry because he suspected the truth but did not want to have his suspicions confirmed.

c) has in his possession any pipes or other utensils for use in connection with the smoking of ganja; or

(d) smokes or otherwise uses ganja, shall be guilty of an offence

Criminal Law: Recklessness : Caldwell? Cunningham? G?

Please note the distinctions between 'Caldwell' / Objective Recklessness and 'Cunningham' / Subjective type recklessness.

Note : The case of R v G has, for the most part, removed Caldwell Recklessness. Please become familiar with the decision in R v G

Most offences requiring a mens rea of recklessness now require Cunningham / Subjective Recklessness.

Criminal Law: Mens Rea : Distinction between Specific intent and Basic Intent

You are required to know in detail the difference between crimes of "basic" intent and crimes of "specific" intent.

Criminal Law: Damage to Property

In Jamaica the offence is Malicious Injury to Property under the Malicious injuries to Property Act .


Mens Rea under the MITP Act is explained in the judgment of R v G & Another

In the U.K., the offence is Criminal Damage under the Criminal Damage Act 1971 .

For the U.K. position, see Smith & Hogan 11th edition. Please note that this edition has been updated as follows:

2005 Update to Chapter 24 Smith & Hogan
2006 Update to Chapter 24 Smith & Hogan

The following cases represent the U.K. Position.

Ayliffe & Others Judgment

R v. Jones Judgment

Criminal Law: Larceny (Jamaica) vs Theft (UK)

Look at this website for a comparison of the old UK Larceny Act and their new Theft Act.

The position under the old act represents to a large degree the current law in Jamaica.

PLEASE NOTE THAT JAMAICA DOES NOT HAVE A THEFT ACT.

The relevant Statute covering Larceny in Jamaica is the LARCENY ACT.

Please note the differences between the provisions of the UK Theft Act and the Jamaica Larceny Act.

The offence in Jamaica is Larceny not Theft.

Criminal Law: Offences against the Person Act 2005 Amendment

Below are the 2005 amendments to sections of the Offences against the Person Act as they relate to the provisions of the Act that deal with sentences of capital punishment and life imprisonment.

Note that capital punishment is no longer mandatory on a conviction of capital murder.

Criminal Law : Offences against the Person Act: Section 2. Murders

(1) Subject to subsection (3), every person to whom section 3 (1A) applies or who is convicted of murder committed in any of the following circumstances shall be sentenced in accordance with section 3 (1) (a), that is to say -

(a) in subsection ( 1 ) [of section 2 of the Offences against the Person Act] by deleting paragraph (d), relettering paragraphs (a) to (c) as paragraphs (b) to (d), and inserting the following as paragraph (a)-

"(a) any murder

(i) committed by a person if, in the course or furtherance of, arising out of, or ancillary to, that murder, the person commits an offence referred to in subsection (1 A); or committed by a person in the course or furtherance of, arising out of, or ancillary to, an offence referred to in subsection (1A), whether or not the individual murdered was an individual that the offender intended to murder in committing the offence;

(b) the murder of -

(i) a member of the security forces acting in the execution of his duties or of a person assisting a member so acting;
(ii) a correctional officer acting in the execution of his duties or of a person assisting a correctional officer so acting;
(iii) a judicial officer acting in the execution of his duties; or
(iv) any person acting in the execution of his duties, being a person who, for the purpose of carrying out those duties, is vested under the provisions of any law in force for the time being with the same powers, authorities and privileges as are given by law to members of the Jamaica Constabulary Force, or the murder of any such member of the security forces, correctional officer, judicial officer or person for any reason directly attributable to the nature of his occupation;

(c) the murder of any person for any reason directly attributable to -
(i) the status of that person as a witness or party in a pending or concluded civil cause or matter or in any criminal proceedings; or
(ii) the service or past service of that person as a juror in any criminal trial;

(d) the murder of a Justice of the Peace acting in the execution of his judicial functions;

(e) any murder committed pursuant to an arrangement whereby money or anything of value - (i) passes or is intended to pass from one person to another or to a third party at the request or direction of that other person; or
(ii) is promised by one person to another or to a third person at the request or direction of that other person, as consideration for that other person causing or assisting in causing the death of any person or counselling or procuring any person to do any act causing or assisting in causing that death;

(f) any murder committed by a person in the course or furtherance of an act of terrorism, that is to say, an act involving the use of violence by that person which, by reason of its nature and extent, is calculated to create a state of fear in the public or any section of the public.

(1A) For the purposes of subsection (1)(a), the offences referred to in this subsection are-

(a) burglary or housebreaking;
(b) arson in relation to a dwelling house;
(c) robbery; or
(d) any sexual offence.

(2) Subject to subsection (3), every person convicted of murder other than a person-

(a) convicted of murder in the circumstances specified in subsection (1) (a) to (f); or

(b) to whom section 3 (1A) applies,shall be sentenced in accordance with section 3 (1) (b).

(3) If in the case of any murder referred to in subsection (1) (not being a murder referred to in paragraph (e) of that subsection), two or more persons are convicted of that murder-

(a) the provisions of section 3 (1) (a) shall apply to any of those persons who-

(i) by his own act caused the death of, or inflicted or attempted to inflict grievous bodily harm on, the person murdered; or

(ii) himself used violence on that, person in the course or furtherance of an attack on that person; and

(b) any other persons convicted of the murder shall be sentenced in accordance with section 3(1)(b).

(4) (Subsection 4 deleted by Act 1 of 2005)

(5) In this section –

"correctional officer" has the same meaning as in the Corrections Act;

"judicial officer" means –

(a) a Judge of the Supreme Court or the Court of Appeal, the Master in Chambers or any person for the time being performing the functions of a Judge of the Supreme Court or Court of Appeal or of the Master in Chambers;

(b) the Registrar or Deputy Registrar of the Supreme Court, the Revenue Court or the Court of Appeal or any person for the time being performing the functions of Registrar or Deputy Registrar;

(c) a Resident Magistrate or any person for the time being performing the functions of a Resident Magistrate;

(d) a person employed in a court's office who carries out prosecution of offences or in the Office of the Director of Public Prosecutions or engaged to carry out functions on behalf of the Director of Public Prosecutions;

"member of the security forces" means a member of ­

(a) the Jamaica Constabulary Force;

(b) the Jamaica Defence Force to the extent that such member has been assigned to act in aid of the Police;

(c) the Island Special Constabulary Force;

(d) the Rural Police.

Criminal Law: Offences against the Person Act: Section 3

Section 3 : Sentence for Murder.

(1) Every person who is convicted of murder falling within-

(a) section 2 (1) (a) to (f) or to whom subsection (1A) applies, shall be sentenced to death or to imprisonment for life;

(b) section 2 (2), shall be sentenced to imprisonment for life or such other term as the court considers appropriate, not being less than fifteen years.

(1A) This subsection applies to a person who is convicted of murder and who, before that conviction, has been convicted in Jamaica-

(a) whether before or after the 14th October, 1992, of another murder done on a different occasion; or

(b) of another murder done on the same occasion.

(1B) (a) Where a court pronounces a sentence of death pursuant to subsection (1)(a) -(a) the form of the sentence shall be to the effect only that the person is to "suffer death in the manner authorized by law";

(b) every person so sentenced shall, after sentence, be confined to some safe place within the correctional institution, apart from all other inmates; and

(c) the sentence may be carried into execution as heretofore has been the practice.

(1C) In the case of a person convicted of murder, the following provisions shall have effect with regard to that person's eligibility for parole, as if those provisions had been substituted for section 6(1) to (4) of the Parole Act-

(a) where a court imposes a sentence of imprisonment for life pursuant to subsection (1)(a), the court shall specify a period, being not less than twenty years, which that person should serve before becoming eligible for parole; or

(b) where, pursuant to subsection (1)(b), a court imposes-

(i) a sentence of imprisonment for life, the court shall specify a period, being not less than fifteen years; or

(ii) any other sentence of imprisonment, the court shall specify a period, being not less than ten years,which that person should serve before becoming eligible for parole.

(1D) A person shall not be sentenced to death under this section by reason of a previous conviction for murder referred to in subsection (1 A) unless-

(a) at least seven days before the trial, notice is given to him that it is intended to prove the previous conviction; and

(b) before he is sentenced, his previous conviction for murder is admitted by him or is found to be proven by the trial Judge.

(1E) Before sentencing a person under subsection (1), the court shall hear submissions, representations and evidence, from the prosecution and the defence, in relation to the issue of the sentence to be passed.


Sentence of death not to be passed on pregnant woman.

(2) Where a woman convicted of murder falling within section 2(1) (a) to (f) or to whom subsection (1A) applies is found in accordance with the provisions of this section to be pregnant, the sentence to be passed on her shall be any sentence of imprisonment that may be imposed under subsection (1)(b) instead of sentence of death.

Procedure where woman convicted of capital offence alleges she is pregnant.

(3) Where a woman convicted of murder falling within section 2(1) (a) to (f) or to whom subsection (1A) applies alleges that she is pregnant, or where the court before whom a woman is so convicted thinks fit so to order, the question whether or not the woman is pregnant shall, before sentence is passed on her, be determined by a jury.

(4) Subject to the provisions of this subsection, the said jury shall be the trial jury, that is to say the jury to whom she was given in charge to be tried for the offence, and the members of the jury need not be re­sworn:

Provided that -

(a) if any member of the trial jury, after the conviction, dies or is discharged by the court as being through illness incapable of continuing to act or for any other cause, the inquiry as to whether or not the woman is pregnant shall proceed without him; and

(b) where there is no trial jury, or where a jury have disagreed as to whether the woman is or is not pregnant, or have been discharged by the court without giving a verdict on that question, the jury shall be constituted as if to try whether or not she was fit to plead, and shall be sworn in such manner as the court may direct.

(5) The question whether the woman is pregnant or not shall be determined by the jury on such evidence as may be laid before them either on the part of the woman or on the part of the Crown, and the jury shall find that the woman is not pregnant unless it is proved affirmatively to their satisfaction that she is pregnant.

(6) Where on proceedings under this section the jury find that the woman in question is not pregnant the woman may appeal under the Judicature (Appellate Jurisdiction) Act, to the Court of Appeal and that Court, if satisfied that for any reason the finding should be set aside, shall quash the sentence passed on her and instead thereof pass on her any sentence of imprisonment that may be imposed under subsection (1)(b):

Provided that the operation of the provisions of this subsection shall be deemed to be coincident with the operation of the Judicature (Appellate Jurisdiction) Act.

Criminal Law: Offences against the Person Act: Section 3A

Life Imprisonment for Non-Capital Murder

3A. (1) On an indictment charging a person with murder falling within section 2(1), he may be found not guilty of such murder but guilty of murder falling within section 2(2).

(2) For the purpose of any appeal against conviction, murder falling within section 2(1) shall be treated as a distinct offence from murder falling within section 2(2).

(3) Where on an appeal against a conviction of murder-

(b) for which the appellant has been sentenced to death,

the Court substitutes a verdict of guilty of murder falling within section 2(2), the Court shall nevertheless determine whether a sentence of death is the appropriate sentence by virtue of section 3(l A) and shall confirm that sentence if it is so found to be appropriate.

(4) Subject to the foregoing provisions of this section, murder falling within section 2(1) shall not be treated, for any purpose, as a different offence from murder falling within section 2(2).


3B. (This section repealed by Act 1 of 2005).

Criminal Law: Offences against the Person Act : Section 3C

Provisions as to appeals in relation to repeated and multiple murders.

3C. (1) Where a person is sentenced to death by virtue of subsection (1A) of section 3, he shall have the like right of appeal against the sentence as if the appeal were against a conviction involving sentence of death.

(2) On any such appeal against sentence, the Court shall have the same powers as to allowing or dismissing the appeal as on an appeal against a conviction; and where the Court allows the appeal, and it appears to the Court that, having regard to the decision on the appeal, the sentence is not warranted in law, the Court shall quash the sentence and pass the appropriate sentence in substitution for it.

(3) Where a person is sentenced to death under subsection (1A) of section 3 (which relates to more than one conviction for murder) and afterwards one of the convictions is set aside on appeal -

(a) that person may apply to the Court of Appeal to set aside the sentence of death on the ground that it is no longer warranted in law having regard to the decision on appeal; and

(b) whether or not an application is made under paragraph (a), the Registrar of the Court of Appeal shall notify the Court that the sentence is one which should be set aside on the ground referred to in that paragraph, and the Court if satisfied that the sentence is no longer warranted in law, shall set it aside and pass the appropriate sentence in substitution for it.

(4) Where a person is sentenced to death as aforesaid then, unless he is so sentenced on being convicted of murder falling within section 2(1), the sentence shall not in any case be executed so long as the other conviction can be set aside on appeal or by any other legal process.