Murder or Manslaughter, Provocation - Essay Example

?Question Provocation is only a partial defence to murder and will only reduce a charge of murder to manslaughter. It will be for Douglas to prove that Dickson’s (the victim) conduct caused Douglas to lose his self-control or that Douglas acted in “the heat of passion”.1 The idea is to demonstrate that the attack on Dickson was not pre-meditated and was not conducted in “cold bold”.2 Sections 54 of the Coroners and Justice Act 2009 provides that a party will not be guilty of murder is his conduct or omission resulted from the loss of self-control.3 That loss of self-control however, is required to have a “qualifying trigger”.4 The test for establishing a loss of self-control is set out as follows: A person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or a similar way to D.5 Some guidance is found in the judgment of R v James and Karimi [2006]. It was held that in determining whether or not the defendant lost his/her self-control, the jury may consider that are not confined to the defendant’s age and gender.6 Therefore Douglas, having just returned from a long road trip and having found his young wife in bed with his neighbour may be mitigating factors. Douglas appears to have been in total control however. He went to a pub which might indicate that the incident did not provoke him to such an extent that he lost control and acted in the heat of passion. However, by virtue of Section 54(2) of the 2009 the loss of self-control element does not have to be sudden.7 Therefore the fact that Douglas went to a pub after finding his wife in bed with the neighbour prior to stabbing the neighbour will not be a factor in his defence of provocation. The most significant problem for Douglas is proving that the stabbing was not an act of revenge. According to Section 54(4), Section 54(1) will not apply if “D acted in a considered desire for revenge”.8 However, since the 2009 Act fails to define what is a “considered desire for revenge” this part of the provocation defence is difficult to assess at this time. It may be that Douglas’ intoxication may act as evidence that he was not acting in revenge since the word considered tends to suggest that some thought and preparation preceded the act. The ultimate test for Douglas is provided for under Section 55 of the Coroners and Justice Act 2009. Section 55 provides that the qualifying trigger is satisfied if things that were said and/or done were of an “extremely grave character” and “caused D to have a justifiable sense of being seriously wronged”.9 In this regard, having returned home from a long road trip and finding his young wife in bed with the neighbour may be considered conduct of a seriously grave character to justify a sense of being seriously wronged. Unfortunately, Section 55(c) will deprive Douglas of this defence because, infidelity is not a qualifying trigger. 10 Douglas will therefore not be able to use the provocation defence by virtue of Section 54 of the 2009 Act. The defence of intoxication relies on distinguishing between being drunk and intoxicated. For instance an individual may be drunk when he/she commits a criminal act that he/she would not otherwise commit in a sober state. However, the defence of intoxication is not available if the mens rea for the offence charged was formed while the defendant was drunk.11 As the court cautioned in Sheehan, “a drunken intent is nevertheless an intent”.12 The court went on to state that: The jury should merely be instructed to have regard to all the evidence, including that relating to drink, to draw such inferences as they think proper from the evidence, and on that basis to ask themselves whether they feel sure that at the material time the defendant had the requisite intent.13 This ruling is very important to Douglas’s defence of intoxication. This means that the jury is entitled to take into consideration the facts and circumstances occurring prior to Douglas’ conduct in the pub. However these facts and circumstances may be interpreted against Douglas. It might be argued by the prosecution that upon finding his wife and neighbour in bed, Douglass was very angry and formed a murderous intent with the result that the alcohol only gave him Dutch courage to carry out the murderous intent formed while in a sober state.14 It was held in A-G for N. Ireland v Gallagher [1963] that where the defendant deliberately gets intoxicated so that he/she might have the Dutch courage to carry out an act, intoxication will not be available as a defence, even where the offence charged is one of specific intent. In these circumstances the defendant will be just as liable as any person who coolly and deliberately forms an intent to commit an offence.15 The second possible interpretation of the facts is that Douglas did not form a murderous intent while sober. He actually withdrew from the situation immediately and went to the pub to calm down, a sure sign that he was in complete control of his emotions. His intent was to create distance and to calm himself down. Only after he became intoxicated did he act in a way that was inconsistent with how he acted while sober. The extent of Douglas’s intoxication is also relevant. The defense of intoxication dictates that an individual is not capable of forming the necessary mental element because of the impact of the alcohol. In this regard, the defence of intoxication is such that the defendant must be shown to have been intoxicated to an extent that was “very extreme”.16 The facts of Douglas case characterize his intoxication as thorough. The jury is entitled to treat this characterization as very extreme intoxication, as it is a matter of fact for the jury to determine. The jury is intended to take account ofthe time spent drinking, how much was eaten prior to drinking and how much was drank.17 It does not matter that Douglas’s intoxication was self-induced. Although self-induced intoxication is not a defence to offences of ordinary intent it can be raised in offences of specific intent.18 Since murder is an offence requiring proof of a specific intent to kill and manslaughter is not, Douglas may raise the self-induced intoxication as a defence of murder, but not to manslaughter.19 The burden of proof which is typically on the prosecution throughout the criminal trial, will necessarily shift to Douglas to prove that he did not form the required mens rea for an offence of murder. It was held in R v Pordage [1975] that the main issue in a defence of intoxication was whether or not the defendant formed the requisite specific intent.20 This will be Douglas’s approach to proving his intoxication defence. Question 2 By virtue of the common law definition of murder, the defendant’s actus reus is proven where the death of a human being is caused by the act of another.21 Bulldog’s attack on John can be said to ultimately caused his death, although there is expert evidence to suggest that had the amputation been carried out immediately following the incident, John’s life could have been spared. The question here is whether or not the chain of causation was broken by virtue of John’s initial refusal to have the amputation under the doctrine of novus actus interveniens.22 The main question at criminal law was whether or not Bulldog’s act was a substantial and operating cause of John’s death.23 In cases where there is an intervening factor that causes the death, the jury is required to determine whether the death was a reasonably foreseen consequence of the defendant’s actions. If is only when the intervening factors was such that it broke the chain of causation, will the defendant be accorded the benefit of the doubt to the extent that the prosecution would have failed to discharge the burden of proof.24 As Lord Parker CJ noted: It seems to the court that if at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound albeit that some other cause of death is operating…Only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound.25 There is little doubt that the cause of the injury to John’s arm was Bulldog’s attack on him. It was this injury that was the operating cause of his death and not the initial refusal to have the arm amputated. It is only contended that had he submitted to the amputation immediately, his life would have been spared. In R v Blaue [1975] 3 All ER 446, a defendant’s argument that the victim could have been spared had she taken better care of herself following an injury inflicted by the defendant, failed. 26 In this case the victim refused a blood transfusion for religious reasons. The question was whether or not this refusal was unreasonable. Ultimately it was held that: It has long been the policy of the law that those who use violence on other people must take their victims as they find them. This in our judgment means the whole man, not just the physical man. It does not lie in the mouth of the assailant to say that his victim’s religious beliefs which inhibited him from accepting certain kinds of treatment were unreasonable. The question for decision is what caused her death. The answer is the stab wound. The fact that the victim refused to stop this end coming about did not break the causal connection between the act and death.27 The fact is this case follows a long history of common law authority. For example in R v Holland [1841] the victim had been assaulted refused medical advice to amputate a finger. Two weeks later the victim suffered lockjaw and died. Maule J instructed the jury that the defendant was not entitled to avoid liability on the grounds that the victim’s life could have been spared had the victim taken better care of himself.28 It would therefore appear that even where the victim takes a considered and informed decision to avoid lifesaving treatment, the defendant will not escape liability for the death. This is therefore no different from the situation where the victim acts in haste and in a panic in trying to escape the attack or to escape a situation whether realistically conceived or not.29 The fact is, it is the defendant’s conduct that sets the result in motion. Based on the above discussion, Bulldog is liable for John’s death on the grounds that John’s failure to take better care of himself by immediately refusing the medical treatment did not break the chain of causation. The fact is the injuries inflicted by Bulldog continued to be an operative cause of John’s death. As the authorities determine, the assailment must take his victim as he finds him. This means the entire mind and not just his physical attributes. In this regard, it would not be for Bulldog to argue that it was unreasonable for John to refuse the amputation for whatever reason he was guided. Whether or not Bulldog’s liability will be murder or manslaughter will depend on the mens rea required for murder. The question is whether or not there was malice aforethought and whether or not Bulldog had the requisite actus reus.30 It has already been determined that there was the requisite actus reus. As for the mens rea there is evidence of malice aforethought in that Bulldog was lying in wait some six months after John fired him. He used a knife in his assault on John. It is therefore likely that Bulldog will be liable for a charge of murder. If the prosecution fails to discharge the burden of proof relative to murder, Bulldog could still end up with a manslaughter conviction. Ultimately, Bulldog is liable for John’s death.   Bibliography A-G for N. Ireland v Gallagher [1963] AC 349. Anleu, S. Law and Social Change. SAGE Publications 2009. Coroners and Justice Act 2009. Cross, N. Criminal Law and Criminal Justice: An Introduction, SAGE Publications. DPP v. Majewski [1977] AC 142. Haque, Q. and Cumming, I. ‘Intoxication and Legal Offences’ (2003) 9 Advances In Psychiatric Treatment, 144-151. Lanser, D.; Bloy, D. and Parry P. Principles of Criminal Law, Psychology Press, 2000. Molan, M. Cases and Materials on Criminal Law, Taylor and Francis, 2009. Reed, A.; Fitzpatrick, B. and Seago, P. Criminal Law. Sweet and Maxwell 2006. R v Blaue [1975] 3 All ER 446. R v Holland [1841] 2 Mood and R. 351. R v Pordage [1975] Crim LR 575. R. v. Sheehan and Moore [1975] 60 Cr App R 308. R. v Smith ]1959] 2 QB 35. R. v.Stubbs [1989] 88 Cr. App. R. 53. Read More