Responsibility for Violation of the Law - Essay Example

Responsibility for Violation of the Law Arthur was in a gang. He frequently carried a knife which he said he did to protect himself. He regularly used cannabis which made him paranoid and he frequently had psychotic episodes where he thought he was being attacked by aliens. One morning he woke up and smoked some cannabis and immediately suffered one of his psychotic episodes. He decided he was going to find the members of a local rival gang to beat up and put a knife in his pocket. He put a baseball cap on and pulled it down over his eyes as he did not want to be seen on any CCTV cameras. He went into the centre of town and saw two rival gang members, George and Tony, sitting on a bridge over a river. George saw Arthur approaching and said to him ‘what are you doing here you nutter.’ Arthur was incensed by this and swung a punch at George which missed George and hit Tony in the face. Tony fell off the bridge and landed by the side of the river not moving. Arthur took out the knife and told George he was going to kill him and moved forward to stab him. George ran off into the path of a bus and was killed instantly. Arthur ran away from the scene and went to Larry’s house to deliver some heroin to him as he regularly supplied him. Larry asked Arthur to prepare a syringe with the heroin which Arthur then gave to Larry who injected himself. Larry immediately had convulsions after injecting himself and fell unconscious. Arthur thought Larry was dead and decided to set fire to the house in case he got the blame. After setting fire to it, he left the house and headed home. He passed the bridge where he had been earlier and saw Tony’s body by the side of the river as no one else had noticed it. He went down to the body and thinking Tony was dead, he pushed the body into the water as he did not want Tony to be found. Tony was in fact still alive and died as a result of drowning in the river. A neighbour of Larry’s noticed the smoke and called the fire brigade and Larry was found dead in the house. Advise Arthur as to his liability. In order to be able to discuss the liability of Arthur in the above scenario there are several matters that need to be considered. To address this it is necessary to examine the law regarding transferred malice and automatism. It is likely that since Arthur was acting under the influence of drugs the defence counsel for Arthur would attempt to prove automatism in order to avoid Arthur being charged with murder. This problem will also require discussion with respect to the liability of the accused when the victim dies as a result of trying to run away from the threat of being harmed. The starting point in this problem is to consider the mens rea for murder and the actus reus required to prove liability. When considering the death of all 3 it is necessary to look at the law regarding murder and manslaughter. The mens rea for murder is accepted as being Where a person of sound mind and discretion, unlawfully kills any reasonable creature in being under the Queens Peace with intent to kill or cause grievous bodily harm1. (Archbold: 19-1, 2008). Historically for a charge of murder to succeed the court required proof of the malice aforethought of the accused2. In recent times there has been a redefining of intention as demonstrated in R v Moloney [1985]3 and R v Woollin [1998]4. The required element of premeditation has been altered such that an intention to cause someone serious bodily harm can now equate to intention to kill5. Juries are instructed to examine the foresight of the accused but should be told to consider what the accused actually foresaw as opposed to what he ought to have foreseen6 making the test of foreseeability a subjective test. Recklessness has also been used in the courts to prove the intention of the accused. Cases such as R v Cunningham [1957]7 and Metropolitan Police Commissioner v Caldwell [1981]8 have demonstrated how recklessness can be used to prove a charge of murder. The approach taken by the courts in applying recklessness using the case of Cunningham was that the defendant was aware of the risk involved in his action yet still continued in his venture. Caldwell widened the application by considering recklessness in situations where the accused either considered the risk to be minimal or that there was no risk at all. This notion was confirmed by Lord Keith in R v Reid [1992]9 where he stated that ‘absence of something from a person’s state of mind is as much part of his state of mind as is its presence. Inadvertence to risk is no less a subjective state of mind than is disregard of a recognised risk’. Where the courts are unable to prove the intention of the accused a lesser charge of manslaughter is likely to be substituted10. The use of manslaughter is usually applied where the intent of the accused is oblique. Oblique intent is where the accused is aware that his actions might cause the death of the victim but this is not what the accused desires to happen11. With direct intention the accused actually wanted to kill the victim and the courts can invariably use the test for foresight to support this assertion12. In defending against such charges an accused might rely on proving that the chain of causation has been broken13 and that as a result of the actions of another they are no longer the primary cause of the death of the victim. As mentioned above in this case the courts would also have to consider the defence of automatism. In order to be able to consider this as a defence to the charge of murder it is necessary to examine case law in this are to establish the occasions when this has been accepted or rejected as a defence. In general the courts have to prove intent on the part of the defendants with regard to the offence charged. Automatism as a defence is used to show that the defendant lacked the mens rea for the offence at the time of committing it. Automatism was defined in the case of Bratty v Attorney General of Northern Ireland14 as "connoting the state of a person who, though capable of action, is not conscious of what he is doing ... It means unconscious involuntary action, and it is a defence because the mind does not go with what is being done." Lord Denning also made the comment in this case 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 a 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…” In Attorney-General's Reference (No 2 of 1992)15 the LCJ made the observation that '.....the defence of automatism requires that there was a total destruction of voluntary control on the defendant's part. Impaired, reduced or partial control is not enough.' It was held by the court in this case that driving without awareness was insufficient to prove automatism. The burden of proving automatism lies with the defence, and such defences have been allowed to be used in cases where the person has a temporary impairment of the mind due to a sudden blow to the head or after taking medication. The courts will not normally entertain such a plea where the accused is relying on the consumption of drugs or alcohol as being the primary cause as the prosecution will aver that the impairment of the mind of the accused has been self-induced16. In most cases intoxication is self induced and the courts take the view that the accused has been reckless in consuming too much alcohol. Under the rules of basis intent recklessness is regarded as the mens rea for an offence. In R v Tandy (1988)17 the defence managed to prove that because the defendant was an alcoholic he was unable to control his desire to drink and that it was whilst he was in a state of intoxication that he committed the offence. In summing up at the Appeal hearing the judge directed the jury that they could only consider the defence of automatism if they believed that the consumption of alcohol on the part of the defendant was involuntary and brought on by his alcoholism. The jury in this case agreed that the consumption of alcohol was beyond the control of the defendant and allowed the defence of diminished responsibility. In R v Lipman (1969)18 the defendant had his charge reduced to manslaughter when he successfully managed to show that the taking of LSD had affected his ability to react in a normal manner. The hallucinations triggered by the LSD made him imagine he was being attacked and he turned on his victim and killed her. The jury had difficulty finding as intention to kill as a result of his defence and reduced the charge to manslaughter. A similar decision was reached in R v Sheehan & Moore [1975]19 as it was difficult to prove the intention of the defendant as he was intoxicated at the time of committing the offence. Having looked at the possible defences to the charge of murder it is necessary to consider the issue whereby the intended victim was not the actual victim. This would come under the doctrine of transferred malice20. Lord Bingham described transferred malice in Edwards v R21 where he stated ‘there is a doctrine that is called 'Transferred Malice' and what it means, is if I pointed a gun at individual A with intention to kill or cause serious bodily injury to individual A and B is standing nearby and the bullet from that intentional act causes B to die, it misses and hits B, then the law says that the intention to kill or to cause serious bodily injury to A is transferred to B. And, if you found that the act, the intentional act of firing a gun at A with the necessary intent causes B to be killed, then the person who did that is guilty of the offence of murder.’ This was later affirmed by Lord Diplock in R v Mowatt22 where he stated it is unnecessary that the accused should have foreseen23 that his unlawful act might cause some physical harm of the gravity described …It is enough that he should have foreseen that some physical harm to some person might result’. In determining liability it is necessary to consider whether the chain of causation has been broken. The chain has been deemed to have been broken in some instances by either the actions of a third party24 or of the victim25. In some cases inappropriate or incorrect medical treatment is deemed to have broken the chain26. To determine whether there has been a break it is necessary to examine case law in this area. The case of Corr v IBC Vehicles Ltd [2008]27 demonstrates a recent case where the court held that the actions of the deceased had broken the chain. In this case the deceased committed suicide as he was unable to live with the disfiguring injury he had received whilst he was working. The widow brought an action against the company on the grounds that they had failed to deal with her husband’s depression. The court held that the foreseeability that the husband would commit suicide was remote and the act should be regarded as a novus actus inteveniens. An earlier case of R v Ogunbowale [2007]28 also demonstrates how an intervening event can break the chain. In this case the blow delivered by the defendant was not the cause of death. The victim died as a result over falling to the ground after the attack and banging his head. Having considered all of the above it is now possible to consider the possible charges that Arthur could be charged with. In relation to all of the deaths it has been stated above that Arthur intended to injure someone when he left his home address. Although he was under the influence of drugs at the time the courts are unlikely to accept a plea of automatism as his condition is self induced. Arthur might be able to prove automatism if he can show that he is addicted to drugs and cannot stop himself from taking them, in the same way that Tandy was able to prove that he was incapable of controlling his alcoholism. If the courts reject this claim then Arthur is likely to face charges for all 3 deaths. When considering the death of Larry it is necessary to consider whether Arthur would have been charged with his death if he had died as a result of taking the drugs. In defending against such a charge Arthur would have to rely on the consensual behaviour of the victim. The accused could attempt to show that the taking of the drugs was a voluntary action on the part of the victim and therefore they were responsible for their own demise. Causation has been considered to be important in determining liability in murder cases29. With cases where the death was caused by the supply of a controlled drug30 the court will consider whether such supply is the operative cause of the death of the victim. This was considered in the case of R v Khan31 where the victim was using heroin for the first time and used more than twice the amount that an experienced user would have used. In this case the judge felt that causation could not be established as the legal cause of death as the link had been broken by the act of the victim in injecting herself32. It was suggested in this case that the accused should be held liable for the death under gross negligence33, as in the case of R v Ruffell34 where the defendant went to assist the victim who had taken an overdose but was unable to prevent the death. In this case the court held that the accused had created a duty of care to the victim by attempting to resuscitate him. In such cases the general liability for the death would be charged under the Misuse of Drugs Act 1971 for the supplying of the causal element of the death35. Alldridge (1996) commented that ‘An analysis which regards drug dealing as a harm against the addict and characterizes the dealer as committing an offence against the person disregards the choice made by the user to take the drug’36. In cases such as the above the accused is likely to rely on the principle of voluntary intervention37 as was the case in R v Armstrong [1989]38. In this case the judge held that the actions of the victim in injecting himself amount to a novus actus interveniens thereby breaking the chain of causation and that there was no case to answer in respect of the death of the victim. By comparison the court in R v Kennedy (No 1) [1999]39 the court found the defendant liable on the basis of assistance and encouragement to inject the heroin form the fact that he prepared the syringe so that the deceased could use the injection immediately. This decision was later reversed on appeal on the basis that the accused could only be found guilty of aiding and abetting if the action of the deceased was unlawful. The self injecting was not unlawful therefore the conviction of the accused was quashed. In this particular case it is not known whether Larry would have died as a result of taking the drugs. If Arthur could prove that Larry was already dead before he started the fire then he might be able to avoid liability for his death on the grounds that he administered the drug himself. However, when Arthur left the house Larry was only unconscious. Regardless of the fact that Arthur believed Larry was dead, the deliberate action of setting fire to the house is likely to mean that Arthur would be charged with the murder of Larry. This might be reduced to a lesser charge of manslaughter as Arthur did not intend to kill Larry. The prosecution are likely to have difficulty proving that Arthur intended to kill Larry especially as Larry injected himself with the drug. Similarly with Tony, Arthur is likely to be charged with his murder. In this instance Arthur was responsible for knocking Tony despite the fact that he actually had intended to hit George. Under the principle of transferred malice the court would regard Arthur as responsible for the injuries to Tony despite the fact that Tony was not the intended victim as mentioned in the case law above. In this case Arthur assumed that Tony was dead and pushed him into the river causing him to drown. The courts are likely to regard Arthur’s actions as reckless and charge him with his murder. This is likely to be reduced to manslaughter on the basis that Arthur did not intend to kill Tony. In the case of George it could be argued that Arthur is responsible for his death as George would not have run into the path of the bus if Arthur had not threatened to kill him. In this case Arthur is likely to be charged with his murder as Arthur had decided before he left his home address that he was going to go out and attack someone. This could be used in court to show that Arthur had the mens rea for the offence even though it was not necessarily his intention to kill anyone. As mentioned above the courts only require proof of the intention to cause serious bodily harm in order to find an accused guilty of murder. The court would use the cases of Cunningham and Caldwell to prove that Arthur acted recklessly and as a direct result of his actions George ran off fearing for his life and was run over by a bus. Bibliography Alldridge, P, ‘ Dealing with drug dealing ’ in AP Simester and ATH Smith ( eds) Harm and Culpability ( Oxford: Clarendon Press , 1996 ) ch 11, p 244 Allen, C, Practical Guide to Evidence, 2nd Ed, 2001, Cavendish Publishing Archbold: Criminal Pleading, Evidence and Practice 2008, Sweet & Maxwell, London Ashworth, A and Blake, M The presumption of innocence in English law [1996] Crim LR 306 Clarkson, C M V, ‘Context and culpability in involuntary manslaughter’ in A Ashworth and B Mitchell (eds) Rethinking English Homicide Law (Oxford : Oxford University Press, 2000) pp 133–165 at p 160 Cook, K, James, M, and Lee, R, Core Statutes on Criminal Law, 2006-2007, Law Matters Publishing Elliott, C & Quinn, F, Criminal Law, 3rd Ed, 2000, Pearson Education Fletcher, G P, Rethinking Criminal Law ( Boston: Little, Brown & Co , 1978 ) p 358 Glanville Williams, Textbook of Criminal Law, 2nd Ed, 1983, London: Stevens & Sons Glazebrook, P R, Statutes on Criminal Law, 10th Ed, 2001, Blackstone Press Limited Herring, J, Criminal Law, 4th Ed, 2005, Palgrave Macmillan Law Masters Huxley, P, & O’Connell, M, Statutes on Evidence, 5th Ed, Blackstone’s Inns of Court School of Law, Criminal Litigation & Sentencing, 2003, Oxford University Press Legislating the Criminal Code: Corruption, Law Commission Report 145 (1997) Murphy, P, Blackstone’s Criminal Practice, 2002, Oxford University Press Ormerod, D and Fortson, R ‘Drugs suppliers as manslaughterers (again)’[2005] Crim LR 819 Reed, A, ‘Involuntary manslaughter and assisting drug-abuse injection’(2003) 67 Journal of Criminal Law 431 Smith & Hogan, Criminal Law, 2005 11th Ed, Oxford University Press Smith, J.C. and Hogan, B, Criminal Law, 7th Ed, 2002, London: Butterworths Smith. J C, The presumption of innocence (1987) NILQ 223 Tadros, V and Tierney, S [2004] Presumption of innocence and the Human Rights Act 67 MLR 402  Toczek, L, ‘Is the supplier also the killer?’(2002) 152 NLJ 595 Cases Attorney-General's Reference (No 2 of 1992) 97 Cr App R 429, 434 Bland v Morris [2005] EWHC 71 Bratty v Attorney General of Northern Ireland [1963] AC 386, [1961] 3 All ER 523, [1961] UKHL 3 Coke’s Institutes, 3 Co Inst 47 Corr v IBC Vehicles Ltd [2008] UKHL 13; Times, February 28, 2008 Edwards v R [1973] AC 648 Hyam v DPP [1975] AC 476 Metropolitan Police Commissioner v Caldwell [1981] 1 All ER 961 R v Roberts (1971) 56 Cr. App. R. 95 R v Adomako [1995] 1 AC 171 R v Armstrong [1989] Crim LR 149 R v Corbett [[1996] Crim LR 594;R v Roberts [1971] 56 CR App R 95 R v Cunningham [1957] 2 All ER 412 R v Dalby (1982) 74 Cr App R 348 R v Jordan, 1956 40 Cr App R 152 CA. R v Kennedy (No 1) [1999] Crim LR 65. See now R v Kennedy (No 2) [2005] EWCA Crim 685, [2005] 1 WLR 2159. R v Khan [1998] Crim LR 830 R v Latimer [1886] 17 QBD 369 R v Lipman (1969) [1970] 1 QB 152; [1969] 3 WLR 819 R v Moloney [1985] 1 All ER 1025 R v Moloney [1985] AC 905 R v Mowatt [1968] 1 QB 421 [1980]2 WLR 239 R v Nedrick (1986) 83 Cr App 267; Criminal Justice Act 2003 R v Pagett (1983) 76 Crim App Rep 279 R v Reid [1992] 3 All ER 673 R v Ruffell [2003] 2 Cr App R (S) 53 R v Scalley [1995] Crim LR 504. R v Sheehan & Moore [1975]1 WLR 739 R v Sullivan 77 Cr App R 176 R v Tandy (1988) 87 Cr App R 45 R v Woollin [1998] 4 All ER 103 R v Ogunbowale [2007] EWCA Crim 2739 Statutes Criminal Justice Act 1967 s8 Misuse of Drugs Act 1971 s4 Read More