Remus and Agrippas Deaths - Case Study Example

Remus and Agrippa’s deaths amount to unlawful homicide although it was ultimately intervening medical conditions that contributed to the causes of their deaths. The CPS would be advised to charge both Nero and Romulus with murder for the deaths of Remus and Agrippa, although there are mitigating circumstances which might operate to reduce the charges to one of manslaughter. Whether or not the unlawful homicide amounts to murder will depend on the facts of the case. Questions of facts are matters that only the jury can decide. Therefore whether or not causation and provocation can operate to reduce one or both of the murder charges to manslaughter should be left to the jury rather than to CPS. In any event the classic definition of murder offered by Sir Edward Coke is a good starting point. He defined murder as: “when a man of sound memory, and of the age of discretion, unlawfully killeth within any country of the realm any reasonable creature in rerum natura under the King's peace, with malice aforethought, either expressed by the party or implied by law, so as the party wounded, or hurt, etc. die of the wound or hurt, etc. within a year and a day after the same.”1 The relevant facts will be considered in light of this definition of murder and its common law development. The necessary mens rea to substantiate both murder charges is perhaps the most problematic for CPS in light of the possible provocation defences available to both Romulus and Nero. Causation is less problematic and will not likely lend itself to any defence of diminished responsibility. In any event, as will be argued, the CPS will most likely succeed in obtaining a convictions of manslaughter in either case, but will be obliged to begin with murder charges leaving the decision to a jury to determine if on the facts Nero and Romulus are guilty instead of manslaughter. Causation While CPS must prove that the defendants’ conduct indeed caused the deaths of Agrippa and Remus it is not necessary to prove that the defendants’ conduct was the sole and main cause of death. If an intervening cause is shown as in both cases here to be characteristic of the victim the defendants cannot rely on it to defeat causation as a result of the “thin skull rule”. By virtue of the “thin skull rule” a defendant will take his victim as he finds him.2 In R v Hayward (1908) 21 Cox CC 692 a husband chased his wife out into the street, kicked her and threatened her. The wife had a pre-existing thyroid condition which made her particularly vulnerable to physical contact and she died as a result of a combination of the husband’s kick and her condition. The husband was convicted of manslaughter. In R v Dear [1996] Crim LR 595 it was held that the question was whether or not the injuries caused by the defendant’s conduct was the significant cause of death or significantly contributed to the death of the victim.3 In both cases, the defendants’ conduct significantly contributed to the deaths of Remus who was suffering from haemophilia and Agrippa who had a heart problem. The underlying rule is that the defendants are not at liberty to rely upon the victim’s vulnerable physical condition to break the chain of causation. However, the degree of force used will only be relevant to the question of intention and will then become a question of fact in each case and will only be relevant to whether or not the homicide in question is one of manslaughter rather than murder. Intention Based on the ruling in Hyam v DPP [1975] AC 55 it can be argued that both Nero and Ronulus had the necessary intent to kill thereby substantiating a charge of murder. In this case the defendant, in an attempt to scare a love rival started a fire in Mrs. Booth’s (a romantic rival) letter box with the result that the house was set afire and two of Mrs. Booth’s children perished in the fire.4 In directing the jury, Ackner J explained that the defendant was guilty of the offence of murder if she at least knew that her conduct would have the likely result of causing serious bodily harm. On appeal to the House of Lords the law Lords held by a 3-2 majority that all that was necessary to establish the necessary mens rea for murder was evidence that the defendant had reasonable foresight that his actions likely or highly likely to cause grievous bodily harm or death..5 Romulus obviously had the necessary foresight when he threw a Remus down the basement stairs as he intended that his injuries were serious enough to incapacitate him to such an extent that he could not report for work. In Nero’s case the intention to cause serious injury is not obvious, although based on this ruling probable consequences were aligned with intention. However, a series of decisions following the Hyam findings have departed from the practice of equating probable consequences with intention. The Court of Appeal took the position that foresight and intention are not to be automatically inferred.6 In another case Wien J said: “…foresight and recklessness are evidence from which intent may be inferred but they cannot be equated either separately, or in conjunction with intent.”7 The House of Lords in R v Moloney [1985] 1 All ER 1025 went on to indicate a subjective position was the correct view to take of intention in each case.8 Lord Bridge stated that the proper directions to a jury on the question of intent should include the consideration of two questions: “…first, was death or really serious injury a natural consequence of the defendant’s act? Secondly, did the defendant foresee that consequence as being a natural consequence of his act?”9 In Hancock and Shankland, the judge at first instance used Lord Bridge’s Moloney directions when summing up for the jury. Lord Scarman charged that those directions might serve to confuse a jury and should not be followed. While holding that foresight of consequences should not be confused with intention, Lord Scarman went on to say that intention can be substantiated by evidence of foresight of consequences.10 A later case appears to clarify the confusion arising out of the previous decisions. In this case R v Nedrick (1986) the defendant threw a petrol bomb into the letter box of a house in which a child died as result. The defendant claimed at his trial that he only intended to frighten the home’s owner.11 Lord Lane CJ emphasized that: “…where the charge is murder and the simple direction is not enough, the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty as a result of the defendants actions, and that the defendant appreciated that such was the case.”12 In R v Woollin [ 1999] Lord Steyn said that: “…it may be appropriate to give a direction in accordance with Nedrick in any case in which the defendant may not have desired the result of his act”.13 The courts have been fairly consistent in upholding the Nedrick ‘virtual certainty’ directions. In R v Walker and Hayles (1990) Lord Lloyd stated that in circumstances where foresight of consequences was an issue and an expanded direction was necessary, the ‘virtual certainty’ test would be appropriate.14 In R v Scalley [1995] the Court of Appeal held that the trial judge should direct the jury that if they were satisfied on the evidence that the defendant’s foresight of either death or injury was a virtual certainly they could infer that he had the necessary intention.15 In R v Woollin [1998] however, the House of Lords took a stricter approach than the Court of Appeal in the Scalley. In this case the House of Lords held that the jury must first be satisfied that the defendant foresaw that death or injury was a virtual certainty before they could move on to the question of intention.16 In order for both Nero and Romulus to be successfully prosecuted for murder in respect of the deaths of Agrippa and Remus CPS must prove that both defendants foresaw as a virtual certainty that by acting as they did it would cause death or serious injury. As previously stated it can be argued that Romulus did in fact intend to seriously wound Remus. Therefore it was a virtual certainty that Romulus could have at the very least foreseen serious injury. In Nero’s case it is less likely that a case of intention to cause serious injury can be made. It can be argued that Romulus’ conduct conduct brought about the circumstances that caused Remus’ death. In DPP v Daley and McGhie (1980) it was held that since a victim tripped and fell to her death trying to escape the defendants who were throwing stones at her, they were guilty of homicide. 17 It was held that the defendants’ conduct was such that they ought to have known that they put the victim to some degree of risk. Based on this ruling, Romulus cannot escape liability for the death of Remus, while it is not entirely certain that Nero can not. The relevant question is whether or not Nero was reckless as to the consequences of his conduct. In order for the defendant to be found guilty there must be some proof that he intended to cause the harm that resulted from his conduct or that he was reckless as to whether or not such harm would be the consequence of his action.18 In Re V Cunningham (1981) the defendant was convicted of murder. In this case he had repeatedly hit the victim in the head with a chair which ultimately caused the victim’s death. The defendant argued that he had only meant to cause really serious harm rather than death. The House of Lords held that such an intent was sufficient mens rea to substantiate a murder charge.19 This case however can be distinguished from the facts of Nero’s case in that the degree of force used could not have conceivably brought about serious injury or even death. The same argument can not be made in Romulus’ case. It appears from the above discussion that both men can properly raise the defence of provocation to a murder charge. Section 3 of the Homicide Act provides that: “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 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.”20 It can be argued that Nero did in fact suffer from a sudden loss of self control, whereas Romulus had a cooling off period once he discovered that Remus had deliberately sabotaged his chances of obtaining a promotion. Romulus might want to argue that In Ahluwalia [1992] it was held by the court that a delayed reaction would not negate the defence of provocation: “…provided that there was at the time of the killing a sudden and temporary loss of control, caused by provocation.”21 This argument is not likely to succeed as there is no evidence that anything occurred between the time of the Remus’ sabotage and Romulus finding out and the time when he pushed him down the stairs. In Camplin [1978] Lord Didplock said, ‘S.3) makes it clear that if there was any evidence that the accused himself at the time of the act which caused death in fact lost his self-control in consequence of some provocation however slight it might appear to the judge, he was bound to leave to the jury the question, which is one of opinion not of law, whether a reasonable man might have reacted to the provocation as the accused did.’22 In Smith (Morgan) [2000] it was held that it is for the jury to determine whether: “ …a person with his characteristics would reasonably be expected to exercise more self-control than he did.”23 Lane, LCJ said that: “the characteristic must be something definite and of sufficient significance to make the offender different from the ordinary run of mankind and also have a sufficient degree of permanence to warrant it being regarded as part of the accused's character and personality.”24 There is no evidence that either Nero or Romulus are suffering from any abnormality of mind to such an extent that the reasonable man test would not apply in either case. Both cases are strong cases of manslaughter, particularly in Romulus’ case since it can be argued that he did intend to at least cause serious injury to Remus. Based on the development of the law, whether or not the charge of murder will be reduced to manslaughter is a question of fact for the jury. Bibliography Ahluwalia [1992] 4 All ER 889 Attorney General’s Reference No. 3 of 1994. (HL) http://www.number7.demon.co.uk/hol/frames/01/44.htm Viewed July 22, 2007 Camplin [1978] 2 All ER 168 (HL) Homicide Act 1957 Hyam v DPP [1975] AC 55 (HL) Ibrams (1982) 74 Cr App R 154 (HL) MPC v Caldwell [1982] AC 341 (HL) Newell [1980] 71 Cr App R 331 (HL) Omerod, David. Smith and Hogan Criminal Law. (2005) Oxford University Press R. v. Belfon, [1976] 3 All E.R (HL) R v Cunningham [1957] 2 QB 396 (HL) R v Dear [1996] Crim LR 595 (HL) R v Hancock and Shankland [1986] 2 WLR 257(HL) Mohan [1976] QB 1 (CA) R v Moloney [1985] 1 All ER 1025 (HL) R v Nedrick (1986) 83 Cr App 267 (CA) R v Scalley [1995] Crim LR 504 (CA) R v Seers [1985] Crim Lr 315 (CA) R v Walker and Hayles (1990) 90 Cr App R 226 (HL) R v Woollin [ 1999] AC 82 (HL) Smith (Morgan) [2000] 3 WLR 554 (HL) Read More