Major Criminal Law Issues - Essay Example

? CRIMINAL LAW By Criminal Law The issue in this question requires an analysis of whether the partial defence to murder is available to Susan under the Coroners and Justice Act 2009. The starting point for criminal law is Article 6(2) ECHR which states that “Everyone shall be presumed innocent until proved guilty according to the law”. Thus there is clear presumption in criminal law that a person would be thought of as innocent and unless a case of satisfying the courts beyond reasonable doubt of criminal liability is proved by the prosecution, the accused would be rendered innocent and the presumption of innocence would be retained. Thus in the current scenario unless a case beyond reasonable doubt is made Susan would be considered as innocent. As far as the burden of proof is concerned, such burden lies on the prosecution who in turn has to prove beyond all reasonable doubt including but not limited to satisfaction of the jury of the guilt of the defendant. (Woolmington v. DPP)1 The main elements that required to be proved in criminal law or be specific a criminal offence are actus reus (the action of the accused), mens rea (the requisite intention for the commission of the offence) and the absence of any defence or if any defence is raised it is negated to the satisfaction of the court. (Lord Diplock in R v Miller)2 Another element that needs to be taken into account is that the actus reus and mens rea of the criminal offence that was committed need to coincide, however it is pertinent to mention that such requirement has been interpreted broadly by the courts. (Fagan v. Commissioner of Police3). The actus reus of an offence is generally satisfied when a positive act is committed. It has often been required that that has been committed must be voluntary, this can be seen from what Lord Denning said that ‘No act is punishable if it is done involuntarily, and an involuntary act in this context...means an act which is done by the muscles without any control by the mind such as spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing such as an act done whilst suffering from concussion or whilst sleepwalking...’ (Bratty v Attorney General for Northern Ireland)4 . Thus the act of the defendant must therefore be voluntary and a wilful movement of body. The next element is mens rea which is concerned with the state of mind of the defendant. There had been cases which were decided upon by the courts in which the criteria were set up whereby the mens rea for a criminal act would be established. The cases that were decided upon took into account intention, subjective recklessness, objective recklessness, lacuna etc. Mens cannot be said to be wickedness by way of any moral or general sense (Dodman)5 . Furthermore even if it is proved to the court that the motive behind the criminal act was good, it cannot be relied upon as a defence (Chiu-Chang v. R)6 . In respect of mens rea the current situation is that of Woollin7 and R v. G. And this has been reached after considerable refining of the original test for intention. Thus the test for direct intent is the that the defendant had intended a result by committing the particular act; and for oblique intent is that the result may have been that the result was a virtually certain consequence of the act. The actus reus of mens rea was provided by Sir Edward Coke in the seventeenth century whereby he stated that the act is committed if the defendant ‘unlawfully killeth any reasonable creature in rerum natura under the Queen’s peace’. The definition of unlawfully does not include the killing of for example the use of reasonable force for self defence (Re a (Children)8. Clearly it can be seen that due to the car of Susan going straight into the pedestrian would be considered to be an act is unlawful. As far as killeth is concerned that refers to the requirement that the acts of the defendant can be attributed to be a legal cause of death. Clearly the acts of Susan of running the car over her husband have led to his death. As far as killing of the reasonable creature in rerum natura is concerned it means that a human life is taken. Clearly this is satisfied as her husband has died. Finally Queen’s peace means that it must have been within England and not the killing of an enemy at war. This can be seen to have been proved on the facts, as her husband died in England.. Therefore on the facts the actus reus of murder has been satisfied. The next element is that of mens rea of murder which has been termed as ‘malice aforethought’. However, to be precise the mens rea is the intention to kill or cause grievous bodily harm. In respect of the current situation it can be said that the malice of killing her husband was aforethought and she had the requisite intention to kill her husband. As for the partial defences to murder that have been provided for in the Coroners and Justice Act 2009, these will now be discussed. Under s.52 for the defence of diminished responsibility the terms under s.2 of the Homicide Act 1957 have been substituted. In order to rely on the defence that is a person would not be convicted of murder if it is shown that he was suffering from ‘an abnormality of mental functioning’ which was due to a recognized medical condition; it had substantially impaired the defendant’s ability to understand the nature of D's conduct; to form a rational judgment; or to exercise self-control; and such an abnormality provides an explanation for the acts of the defendant’s acts in killing the person. In respect of the abnormal mental functioning providing an explanation s.1(B) says that an abnormality would be an explanation to the conduct if it cause, or is a significant contributory factor in leading defendant to carry out the conduct. In respect of diminished responsibility Susan can argue that she had been suffering from severe depression as a result of her losing out on her job, what would require is that this should have caused an abnormality of mental functioning, even if this is shown that there was mental functioning, it has to be due to a recognized medical condition. Severe depression can be said to be recognized medical condition. There can be possibility that the condition was the reason whereby Susan could not understand her nature of conduct. The next thing would be that the condition impaired Susan’s ability to form a rational judgment, or to exercise self control. Even if this is proved there would be another condition that such an abnormality in condition that is severe depression provided for the explanation that is Susan’s act of killing her husband or is a significant contributory factor to the act that has been committed. This would be difficult to satisfy that the explanation that is severe depression was why she killed her husband or was a contributory factor and this is so because her cause of killing her husband was because of the comments and the remarks that he made. Her rebuttal would be that the depression was a contributory factor as if this condition would not have been present should not have killed her husband. However, on the facts it can be said that it was after the remarks and comments by her husband that she decided to destroy her husband. Thus she cannot rely on the partial defence of diminished responsibility. In respect of the second partial defence to murder that is section 54 of loss of control, it will now be discussed. The section states that where the defendant kills another person he would not be convicted of murder if the acts and omission of defendants in such killing was a result of loss of self control of defendant; the loss of such self control has a qualifying trigger; and finally the objective principle that is a person of the sex and age of the defendant, with a’ normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.’ In respect of the current situation Susan can argue that she lost self control which was caused due to the remarks of her husband. Under section 54(2) it has been stated that it does not matter whether or not the loss of such control was sudden. Thus the self control would be proved in respect of the first aspect. As far as the qualifying trigger is concerned Susan can rely on s.55(4)(b) that is the things done were attributable to have caused D to have a justifiable sense of being seriously wronged. The final issue is that a person of the sex and age might have reacted in the same way. It is important to mention that the circumstances of Susan would also be taken into account, thus in respect of the current situation a normal degree of tolerance and self restraint is required. This is an objective criterion which takes into account the personal characteristics of the Defendant. The circumstance would not include those that bear on the defendant’s general capacity for tolerance or self restraint. Thus in respect of the situation of Susan the issues that would be taken into account would be the loss of job, the severe depression and the remarks and comments that were passed by her husband. However, it is important to mention sub-section 4 which states that loss of control defence would not apply if in killing the person the defendant acted in a considered desire for revenge. This would need to be proved and the actions of Susan to destroy her husband would point out to the possibility of revenge. Another important sub-section is that of 5 whereby it has been said that if sufficient evidence is provided than the jury may assume that the defence of self control has been satisfied and this would stand until the prosecution proves beyond reasonable doubt that is it is not. Sufficient evidence ins respect is provided under sub-section 5 whereby evidence is adduced which in the opinion of judge, a properly directed jury could reasonable lead to the conclusion that the defence might apply. As evidence before what would be required would be a mere satisfaction to the jury that the defence of loss of control would apply. Thus after an evaluation of both the partial defences it can be said that the loss of control defence would be satisfied unless the prosecution can prove that the acts of Susan were to seek revenge which would require proving beyond reasonable doubt. Thus the defence would be proved and Susan would then be convicted of voluntary manslaughter. As far as diminished responsibility is concerned the partial defence would not be applicable because of the medical condition of severe depression not being considered as recognized medical condition or even if it is then there would be the question of the murder not being committed due to the depression but rather it was committed because of the remarks that were made by Susan’s husband and so she should be held liable for the murder of her husband. 2. The issue in respect of the current situation requires an analysis of what the position would have been before the introduction of the Coroners and Justice Act 2009 was implemented. It is evident from section 56 of Coroners and Justice Act 2009 that the common law defence of provocation has been abolished. The situation in respect of the liability of Susan would differ and this would be different. Under the Homicide Act 1957, there were two main such defences: diminished responsibility and provocation. Now, diminished responsibility has been altered somewhat by the Act, and provocation has been abolished altogether and replaced with a new defence of loss of control. In respect of the old provisions of provovation the emphasis was on the conduct of the provocative act and not on the conduct of the defendant. The most important characteristic of provocation can be seen from the cases of Kiranjit Ahluwalia whereby the wife killed her husband after suffering years of torture that is physical and mental abuse from her husband. However, it needs to be pointed out that there was not a lot of emphasis that was placed on the provocation defence because of the persisting requirement of ‘sudden and temporary loss of self-control’, this meant that the longer the time-gap between the provocative act and the offence, the less likely it would be that a defence of provocation would work. Under the previous common law defence of provocation, the defendant was required to have lost their self-control due to things said or done. It has been said at times defence developed historically on the grounds that the victim, who provoked the defendant, lost a part of his claim which he would have been protected by, the modern law of provocation did not require that the victim was to blame for the defendant’s loss of control, nor that he was even the cause of it .Up until now, loss of self-control has been constrained almost exclusively to a state of anger and rage. Janet Lovelace argues that the Court of Appeal in Ahluwalia [1992] assisted battered women who killed by linking the requirement of suddenness to the nature of the loss of control itself rather than to the relationship in time between provocation and the loss of control. However the court’s approval of previous authority including Duffy (1949) andThornton (No.2) [1995] where a delay of seconds was commented unfavourably upon by the judge, still left women in a difficult position. Under section 3 of the Homicide Act 1957: ‘Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.’ The defence requires the defendant to raise evidence which is sufficient in itself so s to raise the question of provocation. After considering this, the judge would then have to decided whether to leave the defence to the jury. The homicide Act stated that provocation could be way of anything that is done or said and it should nto necessarily be an illegal and further the provoker and the decease can be third parties (Davies9). If the accused was provoked, who provoked him is not considered to be relevant. The test of provocation is a subjective one and is decided upon the fact that is there must be evidence which portrays that the defendants lost his self control. In R v Duffy10, Devlin J. said that ‘Provocation is some act, or series of acts, done by the dead man to the accused, which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.’ Thus the reaction to an act of provocation is said to be almost immediate retaliation. Thus if there is found that there was a "cooling-off" period, it would be found by the court that the accused had time and therefore should have regained control, thus making the subsequent action intentional and so the defence of provocation would not be available and the defendant would be held liable for murder. As can be seen in the case of R v Ibrams & Gregory11 a planning of an action and then implementing it would in no way allow for the defence of provocation to be relied upon as there was no evidence of a sudden and temporary loss of self-control as required by Duffy. It has been said that if someone goes to fetch a weapon that could also constitute to be a cooling off period ( R v Thornton)12 Even though in Thornton it was argue that the entire events leading to killing should be taken into account Beldam LJ. rejected this, saying ‘In every such case the question for the jury is whether at the moment the fatal blow was struck the accused had been deprived for that moment of the self-control which previously he or she had been able to exercise.’ If the jury thinks and is satisfied that the defendant had been provoked then the test that determines the defence is whether a reasonable person would have acted as the defendant did - an objective test. It was held in Camplin13 that the age and sex of the accused would be found to be attributable to the reasonable man. In a number of leading cases, Morhall14, and Luc Thiet Thuan v R15 it was found that the judge should give directions to the jury whereby the jury should determine whether an ordinary person with ordinary powers would have lost self control and reacted to the provocation as the defendant did and no personal characteristics of the defendant should be taken into account. In R v Smith16 where the defendant intended to rely on serious clinical depression and provocation, Lord Hoffman stated the test for the jury should be whether the circumstances were such that loss of control was excusable and the offence could be reduce from murder to manslaughter. It was said that attribute of person should be taken into account. However in HM's AG for Jersey v Holley17 the Privy Council stated that Smith had been wrongly decided and stated that the characteristics of the accused were to be taken into account when assessing the gravity of provocation, the standard of self-control to be expected was invariable except for the accused's age and sex. Lord Nicholls said ‘Whether the provocative acts or words and the defendant's response met the 'ordinary person' standard prescribed by the statute is the question the jury must consider, not the altogether looser question of whether, having regard to all the circumstances, the jury consider the loss of self control was sufficient excusable. The statute does not leave each jury free to set whatever standard they consider appropriate in the circumstances by which to judge whether the defendant's conduct is 'excusable'. Holley was differentiated in the case of R v Faqir Mohammed 18 . However, in R v. James19 the courts found the decision of Holley to be binding and that it had overrule the error that had been made by the House of Lords. Thus in respect of the current situation it can be said that before the implementation of the Coroners and Justice Act 2009 Susan could not have been able to rely on the defence of provocation as firstly there was a requirement of sudden and temporary loss of control which would have caused a hurdle. Secondly the fact that her attributes of severe depression and personal attributes which she can raise under the CJA 2009, she could not do so in respect of the provocation defence. There might be a possibility that she could have raised it but then the objective man principle has been scrutinized by the Privy Council and the House of Lords and a decision in this respect what always have had differing approaches. The higher possibility being that the reasonable man which would have been considered by the jury would not have had the personal characteristics of Susan. Finally her defence in respect of diminished responsibility even though minor changes have been made would have remained the same and therefore she would not have been able to rely on the defence of diminished responsibility. References (2010). Criminal law 2010-2011. Abindon, Oxon, Routledge. http://site.ebrary.com/id/10371487. ALLEN, M. J., ASHWORTH, A., HERRING, J., & ORMEROD, D. C. (2009). Criminal law. Custom publishing (Oxford University Press). Oxford, Oxford University Press. ASHWORTH, A. (2009). Principles of criminal law. Oxford, Oxford University Press CLARKSON, C. M. V., KEATING, H. M., CUNNINGHAM, S., & CLARKSON, C. M. V. (2010). Clarkson and Keating criminal law: text and materials. London, Sweet & Maxwell. ELLIOTT, C., & QUINN, F. (2010). Criminal law. Harlow, Essex, England, Pearson Longman. FINCH, E., & FAFINSKI, S. (2010). Criminal law. Harlow, Longman JEFFERSON, M. (2009). Criminal law. Foundation studies in law series. Harlow, England, Pearson Longman. http://www.myilibrary.com?id=231727. LAFAVE, W. R. (2010). Criminal law. St. Paul, Minn, West/Thomson MARTIN, J. (2010). Criminal law. London, Hodder Education. http://lib.myilibrary.com?id=291447. MOLAN, M. T. (2003). Criminal law. Textbook. London, Old Bailey. MOLAN, M. T., & DOUGLAS, G. (2010). Criminal law. Oxford [England], Oxford University Press. ORMEROD, D. C. (2009). Smith and Hogan criminal law: cases and materials. Oxford, Oxford University Press. PADFIELD, N. (2010). Criminal law. Oxford, Oxford University Press. POLLOCK, J. M., & KLOTTER, J. C. (2009). Criminal law. Newark, NJ, LexisNexis, Anderson Pub. REED, A., FITZPATRICK, B., & SEAGO, P. (2009). Criminal law. London, Sweet & Maxwell ROACH, K. (2009). Criminal law. Toronto, ON, Irwin Law. ROE, D. (2005). Criminal law. London, Hodder Arnold SIMESTER, A. P., & SULLIVAN, G. R. (2010). Criminal law: theory and doctrine. Oxford, Hart. WARBURTON, D. (2008). Criminal law. Key statutes. London, Hodder Arnold. WILSON, W. (2008). Criminal law. Harlow, Pearson Longman. http://www.legislation.gov.uk/ukpga/2009/25/part/2/chapter/1 Read More