Presumed Innocent - Essay Example

?Criminal Law The issue in this question requires an analysis on the law on homicide as well as parties to crime that is aiding and abetting. The actus reus and mens rea for each of the elements would be discussed along with the defences. First Barry’s liability for Alice’s death will be considered. 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. The burden of proof is on prosecution who has to prove it beyond all reasonable doubt, or satisfy the jury of the guilt of the defendant. (Woolmington v. DPP)1 It is important to mention that for any offence to be proved it must be proved beyond reasonable doubt and the burden of proof is on the prosecution. Another important point that needs to be raised is that the actus reus and mens rea of the offence must coincide, however a broad approach int his respect has been adopted by the courts. The main elements required to prove an offence are actus reus, mens rea and the absence of any defence. (Lord Diplock in R v Miller)2 The actus reus and mens rea need to coincide, however the requirement is interpreted broadly. (Fagan v. Commissioner of Police3) One of the situation is where the conduct of the defendant created a situation of danger. (R v. Miller)4 The first point of homicide is murder. The actus reus of murder 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)5. Clearly, Alice died because of the Barry punched her really hard on her head and therefore this 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 act of Barry had led to the death of Alice. 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 Alice had died. Finally Queen’s peace means that it must have been within England and not the killing of an enemy at war. It can be assumed that Alice’s death occurred 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 (Moloney)6 Intention discussed in Woollin and applied by Matthwes and Alleyne7 was described as defendants aim or purpose was to kill or cause grievous bodily harm or he know of such harm as being a virtually certain consequence of such an act, and any level below that of virtual certainty would not suffice. On the facts it is more than evident that Barry clearly did not possess the intention nor was he virtually certain of the consequences. Thus it is quite clear that the mens rea for murder is not satisfied. As far as voluntary manslaughter is concerned it is not relevant to the facts at hand as there was neither provocation or was there any diminished responsibility. Thus voluntary manslaughter in respect of the facts will not be argued. The next step is that of involuntary manslaughter. The first manslaughter that would be considered is that of reckless manslaughter. The change brought about by Moloney means that for manslaughter recklessness will suffice. However, on the facts it can be said that Barry was not subjectively reckless as he was not aware of the fact that Alice had an exceptionally thin skull. The next in line is gross negligence manslaughter which requires proof of a high degree of negligence. The approach can be seen from Lord Atkin’s judgment in Andrews v. DPP8 where he stated ‘[In the older cases] expressions will be found which indicate that to cause death by any lack of due care will amount to manslaughter, but as manner softened and the law became more humane, a narrower criterion appeared’. There have been difficulties which the courts have found in respect of allowing the juries to ascertain the level of negligence that would be required and this was pointed out by Lord Hewart LCJ in Bateman9 in which he stated that the negligence should be a step higher than the compensation phase and the defendant should have disregarded life and safety of other and such conduct deserves punishment. In Adomako 10 the House of Lords stated that having regard to the risk of death involved the action of the defendant were so daft in the circumstances so as to make him liable for his act or omission. Lord Mackay in the current situation pointed out on how directions should be given to the jury. It was further established that the question of duty owed by defendant to the deceased would be determined by the jury after taking into account the evidence that was provided. (Rose LJ in Willoughby)11. Thus the first element is that of establishment of a duty of care. The second requisite element is that there must be breach which must amount to gross negligence. In Attorney General’s reference (No. 2 of 1999) it was stated that there was no need the fact that the defendant foresaw a risk of death. The final requirement is that the breach caused the death. In respect of the current situation it can be said that there was clearly no duty of care that Barry owed to Alice. The final point in respect of such manslaughter is the ascertainment on how the death occurred. From the facts it is evident that the death of Alice did not occur as a result of negligence. Thus on the facts the requirements for manslaughter by gross negligence are not satisfied. thus the law on unlawful and dangerous act manslaughter is now being discussed. The liability in respect of unlawful and dangerous act manslaughter is found where an unlawful act was committed by the defendant and this can be casually attributed to the death. However, it is pertinent to mention that the courts in Franklin12 did find that a civil wrong would be insufficient and furthermore in Andrews13, the House of Lords stated that an offence which is based upon negligence would not constitute as an unlawful act fo the purpose of constructive manslaughter. As far as dangerousness is concerned the courts in Church14 in particular Lord Edumnd-Davies stated that an unlawful act would be dangerous if ‘all sober and reasonable people’ that the unlawful act led the victim to the risk of some harm, but not necessarily serious harm. It is important to mention that this test is objective and so there is no requirement of proving that the defendant knew the fact that his conduct carried the risk of harm (Lipman)15. However, this test was reformed in Dawson, but then the case of Dawson has been distinguished as well as applied in subsequent cases. Finally it is important to establish that the unlawful act was the cause of the death. In respect of the current scenario it can be seen that Barry’s act of punching Alice on her head constitutes an unlawful act. Further as the but for test provides that but for the act of the defendant the harm would have not occurred, thus the factual test is satisfied. As far as the legal causation is concerned it can be that the substantial and operating cause was the act of Barry. Any reasonable person would foresee risk of some harm. Barry’s act constituted to Alice’s death. There is a strong probability that he will be liable for unlawful and dangerous act manslaughter. However, it can be argued that Barry did so in self-defence. The court of appeal in Owino16 laid down a test to be proved before the self-defence could be successfully used as a defence. The defendant must honestly believe that force is necessary to defend him; another or property and he must use reasonable force. It may be possible for Barry to use self-defence as defence. In respect to Cathy, first we will discuss Barry’s liability, based on the facts it can be concluded that Barry possessed the intention to kill Cathy. As he pursued Dave to unlock the door and wished to smother Cathy. Barry’s liability for attempt to murder should be considered. Offense of attempt is defined by S.1(1) of the Criminal Attempts Act 1981, the actus reus required for attempt is that if a person possesses a specific intention of a criminal offense and has taken sufficient steps towards committing it. In other words an act which is more than merely preparatory to the commission of the substantive offence. Although S.4(3) provides that whether an act is more than merely preparatory, however, it is up to the judge to decide whether what was done could amount to attempt for the purposes of the Act. Jones17 The mens rea required for attempt is that D must intend the consequent element of the substantive offence.( R v White )18. In the current situation, based on the facts, Barry intended to kill Cathy and in order commit the offense successfully, he took sufficient steps. There is a strong possibility that he will be liable for attempted murder. Barry may also be liable for an offense under Offense Against The Person Act 1861 S.4 for conspiring and soliciting to commit murder. Next we shall consider Dave’s liability. According to Accessories And Abettors Act 1986, ‘whoever shall aid, abet, counsel or procure the commission of any indictable offense whether the same be an offense at common law or by virtue of any act passes or to be passed, shall be liable to be tried, indicted and punished as a principal offender’. In Bryce19, Potter LJ stated that “persons who come within the statutory genus are variously designated ‘accomplices’, ‘accessories’ or ‘secondary parties’. It seems to us that, in one respect at least, the term secondary parties is preferable because it emphasises that the secondary liability of an accomplice is derivative from the liability of the principal offense”. However, Secondary liability only attaches when the principal offence has been commited. In the current situation, it is clear that Barry’s attempt to commit Cathy’s murder was not successful. Therefore, Dave should not be held liable for any such criminal offence because of the fact that the primary act did not take place and therefore no liability would accrue. References Herring, J. (2010) Criminal Law. Text, Cases and Materials. 4th Edition. Oxford:OUP. Read More