Analysis of Criminal Law - Case Study Example

Topic: Criminal Law Order 167236 Deadline: 2007-04-26 01:20 Style: Harvard Language Style: English (U.K Grade: n/a Pages: 8 Answer: This problem question raises some issues from homicide, general and special defence. In order to answer this question it is necessary to discuss transferred malice, conspiracy, and mens rea of Borris, Colin, and Dr Dan for the death of PC Ali. The criminal liability of Borris, Colin, and Dr Dan for the death of PC Ali is discussed bellow. Borris invoked defence of provocation but it is only defence of murder. A person will be liable for murder if he unlawfully killing a reasonable person who is in being under the Queen's Peace with intention to kill [Moloney1, Cunningham 2, Vickers 3] or intention to cause grievous bodily harm [DPP v Smith 4], [Saunders5. Murder is unlawful homicide committed with 'malice aforethought' with the penalty of mandatory life imprisonment. 'Malice aforethought' describes the mens rea for a conviction of murder. Here it is necessary to consider that Drew had no 'malice aforethought' to killing Sam, who delivers the parcel, which consists of a letter bomb. Sam and a pedestrian was the victim of the bomb explosion. In Draft Criminal Code (Law Com. No. 177), the Law Commission recommended a change in the law. Clause 54 provides that a person is guilty of murder if he causes death of another intending to cause death or intending to cause serious personal harm and being aware that he may cause death. Colin was, in fact, an off-duty police officer. He was driving his family to Dover for they were going on holiday. Colin got back into his car and continued driving. The principle is that 'one must take one's victim as one finds them'. In Dytham6, D, a police constable, was on duty in uniform near a club when a man was ejected from the club and kicked to death by a 'bouncer'. D took no steps to intervene and when the incident was over he drove off having told a by stander that he was going of duty. D was charged with the common law offence of misconduct whilst acting as an offence of justice, in that he had wilfully and without reasonable excuse or justification neglected to perform his duty to preserve the Queen's Peace and to protect the person of the deceased or arrest his assailants or otherwise bring them to justice. The CA upholds his conviction. However, D was convicted not for his positive act. Place reliance on a passage in Stephen's Digest of Criminal Law, which stated: 'Every public officer commits a misdemeanour who wilfully neglects to perform any duty which he is bound either by common law or by statute to perform provided that the discharge of such a duty is not attended with grater danger than a man of ordinary firmness and activity may be expected to encounter.' English law, unlike many other systems, does not impose on people a general duty to take positive action to assist people in difficulties or to avert harm, even if they are physically well capable of doing so. However, there is a very wide area of uncertainty. If there is a moral obligation to assist people in difficulty or danger, Lord Nicholls of Birkenhead and Lord Hoffmann in Stovin v Wise7, discuss why there is no legal obligation. In The Ogopogo 8the defendant had invited the claimant as a guest on his yacht. He accidentally fell overboard. D was not a mere bystander and was held to have a duty to reasonable care to save the claimant. In Goldman v Hargrave 9 may not have to show the care of a reasonable person, but only have to do what he is capable of, given his health and resources D was liable for his negative act. This is not difficult to apply when the D has undertaken an on going responsibility, in the course of which the omission occurs [Henderson v Merrett Syndicates10] and Home Office v Dorset Yacht Co11. To identify there liability it is necessary to consider few relevant case. R v Yaqoob 12 considered a partner in a taxi firm who was responsible for making all necessary arrangements for the inspection and maintenance of a minibus which had overturned after its tyre burst, killing one of its passengers. He was convicted of manslaughter because the failure properly to maintain the minibus was the direct cause. If Colin does not convicted under murder then he will be charged under constructive manslaughter. The substance of this offence is that if Colin kills PC Ali in the course of doing an unlawful act or constructive manslaughter provided such act is not justified. Thus the 'unlawful act' must satisfy the criteria. Unlawful act must be more than merely negligent act (Andrew v DPP13). In Andrew, D had been driving dangerously s when he killed the deceased. In Adomako14 an anaesthetist failed to notice that a tube had become disconnected from the ventilator and the patient died. Lord Mackay disapproved Seymour and held that the Bateman test of gross negligence was the appropriate test in manslaughter cases involving a breach of duty, allowing the jury to consider the accused's conduct in all the surrounding circumstances, and to convict only if the negligence was very serious. Doctor Dan, who had worked without a break for 24 hours, then gave PC Ali a blood transfusion of the wrong blood. PC Ali became gravely ill and after 3 days, to cut short his agony, he took hold of a nearby scalpel and slit his throat. He died within minutes. If the requirement for murder can be proved that Dr. Dan will be charged under murder. Hence or otherwise he will be liable for manslaughter. The criminal liability of Dr Dan for the death of PC Ali is discussed bellow. Voluntary Manslaughter, as defined in the book Criminal Law Today, is the unlawful killing of a human being, without malice, which is done intentionally upon a sudden quarrel or in the heat of passion. According to R v Creamer 14, a person is guilty of involuntary manslaughter when he or she intends an unlawful act that is likely to do harm to the person, and death results, which was neither foreseen nor intended. In Hancock and Shankland 16, the phrase 'natural consequence' had created judicial confusion. The conflict between Moloney and Hancock led the court of Appeal to seek to restore some order to the confusion in Nedrick 17. Murder is the specific intent crime and manslaughter is the basic intent crime. May be Dr. Dan had no intention to kill PC Ali. However, Adamoko & Woollin18, test will be applicable here. In this case the court approved a direction which left it open to the jury to infer intention where they were satisfied that D foresaw a substantial risk of serious harm to the victim, his three month old son, whom he threw four or five feet across a room in the direction of his pram causing him fractured skull from which he died. In R v Pittwood 19 a gatekeeper was convicted of manslaughter. Wright J, held, however, that the man was paid to keep the gate shut and protect the public so had a duty to act. R v DPP, ex p Jones 20 the court held that the test of negligent manslaughter is objective, confirmed A-G Reference (No 2 of 1999) as a correct general statement of law. Dr. Dan had worked without a break for 24 hours, and then gave PC Ali a blood transfusion of the wrong blood. In Cox21, The court held that if a doctor genuinely believes that a certain course is beneficial to his patient, either therapeutically or analgesically, then even though he recognised that that course carries with it a risk to life; he is fully entitled, nonetheless, to pursue it. It in those circumstance the patient dies, nobody could possibly suggest that situation the Doctor was guilty of murder or attempted murder. In Jordan 22 D stabbed V who was taken to hospital and the wound was stitched. Eight days later V died. D's conviction was quashed. At the time of the death the wound was healed but V had died as a result of 1) a Terramicin injection to prevent infection, administered after V had shown intolerance to a previous injection, and 2) the intravenous introduction of large qualities of liquid which had caused V's lungs to become waterlogged. The treatment was described as 'palpably wrong'. In Smith 23Lord parker stated 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 also operating. Where the medical treatment is negligent but the wound is still operating, it wound seem that both the perpetrator of the wound and the doctor treating it could be said to have caused the death. In such situation, however, there would bed little likelihood of a prosecution for manslaughter being brought against the doctor. Where, however, the owned has healed and negligent treatment independently causes death a prosecution of the doctor may soon. In Cheshire24 the CA upheld the conviction of murder on the basis that the respiratory complications were a direct consequence of D's acts despite medical negligence. So, Dr. Dan would be liable or not depends judge's discretion. If court applies the decision of Smith then Dan cannot exclude his liability. PC Ali saw Borris sitting in his car; he hammered on the passenger window and shouted that Boris should get out of the car. Borris turned on the engine and began to move off. PC Ali, in an attempt to stop him, leapt onto the bonnet. Borris increased his speed. In order to establish the liability of Borris it is necessary to consider case law. In Williams25, a victim's response must be 'proportionate to the threat, that is to say that it was within the ambit of reasonableness and not so draft as to make it his own voluntary act which amount to a novus actus interveniens and consequently broke the chain of causation. The most important case here is Hayward26, case, here medical evidence was given that victim was suffering from an abnormal condition such that any combination of fright or strong emotion and physical exertion might cause death. So Borris would be liable. In R v Dawson 27 in judging whether this act was sufficiently dangerous, the CA applied a test based on the "sober and reasonable". However the court disagreed in R v Watson 28 in which the victim's approximate age (he was 87 years old) and frail state would have been obvious to a reasonable person. It is foreseeable that the victim is at risk of suffering some physical harm 24 from such a punch and that is sufficient. Physical harm includes shock. The court held that the deceased's death was not caused by injuries that were a foreseeable result of the affray. The assault by the second defendant was an unlawful act causing death. Borris told the police that he had suffered from a personality disorder from an early age. He had found PC Ali's aggressive manner extremely provocative and that he had only wanted to give him a fright. In order to establish the liability of Borris it is necessary to consider few recent cases. In R v Faqir Mohammed 29there are two elements to this defends which, for the purposes of simplicity, may be identified as: a) Whether the D lost his or her self-control and if so: b) Whether s/he should reasonably have controlled him or herself The D, a devout Muslim, stabbed his daughter to death. She had, he said, brought shame upon the family. He had discovered a man leaving her bedroom. The D had suffered from depression since the death of his wife and said that what had happened had caused him to lose his self control. The jury had to considered whether his other characteristics of strongly held religious beliefs and depression provided a sufficient excuse to reduce murder to manslaughter. The defendant was convicted to murder and appealed on the ground that the evidence brought by the prosecution of his previous violence to his wife and children was inadmissible and prejudicial. The Privy Council over ruled the decision of Luc Thiet Thuan30, R v Smith31. In Smith, defendant gets a defence under s 3 of the Homicide Act 1957. In case A-G for Jersey v Holly 32held that Smith (Morgan) was not an accurate statement of English Law. In R v James and R v Karmi 33the CA upheld the decision of Holly. So from the above discussion it can be said that Borris cannot exclude liability of murder or manslaughter of PC Ali. Homicide is a common law offence. It is Judges discretion to impose liability upon Borris. From this fact it seems that Borris invoked self-defence under s 3(1) of the Criminal Law Act 1967 for his serious crime. In R v Williams (Gladstone) 34and R v Owino 35 it appears that an objective concept of reasonableness was to be applied in the context of a subjective interpretation of the circumstance. But he will not be succeeding because only reasonable force may be used in self-defence. The police for a serious crime wanted Boris. He did these just to protect arrest. In conclusion it can be said that they will be liable for murder or manslaughter, its judge discretion because it is common law crime and jury will decides the facts of the case. However, according to Benge 36 Borris, Colin, and Dr Dan all will be liable for homicide because PC Ali dies as a result of the combined effect. The maximum punishment for manslaughter is a term of imprisonment of life [s5 of Offence Against Persons Act 1861]. References: 1) Smith & Hogan, Criminal Law, Cases & Materials, 8th edition, Butterworths Lexis Nexistm UK, 2) Michael J. Allen, Criminal Law, 7th edition, (2003), Oxford University Press, 3) Smith & Hogan, Criminal Law, 11th edition (2005), Oxford University Press, 4) , 5) Ashworth, A. Principles Of Criminal Law, 4th edition, 2003, Oxford University Press, Read More