Kevin and the Death of His Victim - Assignment Example

196523     Kevin, a gym noticed that one of the pieces of equipment in the gym was faulty and realised that it was probably dangerous. Heintended to put up a notice telling clients not to use it but saw Helena arrive, the woman with whom he was having an affair and became distracted and forgot about it. Ian, Helenas husband was a new member at the gym and had not had a proper training session on how to use the equipment but thought that he would start himself off. Kevin saw him go to use the faulty equipment but decided not to warn him as he thought it would give him more time with Helena if Ian were injured. The weights fell on Ian and caused him serious internal injuries. After several weeks he was recovering when he contracted an infection and was given antibiotics to which he had a severe reaction and died. The allergy was noted in his notes but the doctor failed to refer to them before prescribing the medication. When Kevin heard that Ian had died he felt guilty but relieved as he could have Helena to himself. Ians brother Joe suspected Kevins involvement as he knew of the affair. he had no way of proving guilt but meant to frighten him into confessing so tampered with the brakes of his car. The next day Kevin was driving and sped round a corner, the brakes failed and he hit a tree. A woman saw the accident but when she saw how badly he was injured she left as she was no good in an emergency. Kevin was eventually discovered but died in theatre later. Discuss criminal liability including Kevins although he eventually dies. In order to assess the liability of Kevin and Joe in the above it is necessary to examine the mens rea of the parties at the time of the offence. It is also necessary to discuss the chain of causation to establish whether intervening events are capable of absolving the parties of their liability in this matter. A consideration of the impact of the woman who saw the accident but did not assist Kevin is also important as it could be argued that he might not have died if he had received treatment sooner. In considering the above it should be noted that the mens rea for murder1 has been defined by Sir Edward Coke in 1606 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 Kings Peace, with malice aforethought, so as the party wounded, or hurt…, die of the wound or hurt, … within a year and a day after the same2. Legislation since Coke has redefined the principle of malice aforethought3. Case precedents have also helped mold new perceptions on the culpability for murder4 have redefined malice aforethought. Malice aforethought is now more narrowly defined 5 with the element of ill will or premeditation as suggested by Sir Coke being diluted down such that the only requirement is that there is an intention to kill6 or to cause grievous bodily harm7. Since the introduction of the Criminal Justice Act 2003 s21 the word ‘grievous’ has been replaced by ‘serious’ and the courts have come to accept that where an intention to cause serious bodily harm as opposed to kill is applied this could be used as a mitigating factor when passing down sentence on the accused. As a result in the changes in law there is a tendency for a murder charge8 to be replaced by one of manslaughter9. Murder can only be established by proving direct 10 or oblique intent11. With direct intent the proof12 needed is that the accused desired the result that occurred13 whereas oblique intent applies when the accused did not desire the result that occurred but knew that their actions may cause the result that has happened. In ascertaining the intent of the accused the court will look at the foresight of the accused14. Foresight has in some instances been used to support the allegation of intent. Under this principle they will assess what a reasonable person15 might have foreseen16 would happen in consequence of their actions they had taken against the victim17. Applying this principle to Kevin firstly it could be argued that it was obvious that the faulty equipment could have caused the victim some serious harm. By not warning him of the danger the court could infer that Kevin intended to seriously harm the victim. This is especially the case given that Kevin had decided not to tell him as he was hoping to injure him so that he could spend more time with the victim’s wife. With Joe it is obvious that tampering with the brakes could cause Kevin to have a crash and suffer a serious injury. Although the intention was only to scare him the courts are likely to hold him responsible for Kevin’s death as he ought to have considered that this could be a consequence of his actions. n this particular case it would be fairly obvious that draining the brake fluid would cause John to crash and it would also be reasonable for Matthew to assume that such an event could cause either serious harm18 to John or kill John19. The prosecution would not have to prove that the harm was intended but merely that he was reckless20 in his behaviour as to what might happen21. In proving the mens rea for the offences the court would have to show that when Kevin decided not to warn the husband and when Joe cut the brakes they had already formulated in their minds an intention to hurt their victim. The prosecution would also have to show that this was a continuous act22 and that the chain of causation23 had not been broken24. It states in the outline above that his intention was to frighten him, however, as mentioned above the courts are likely to draw the conclusion that he ought to have foreseen or did foresee that his actions could cause serious harm or death. The test of foreseeability is based on what the reasonable man might have foreseen25. The definition of a reasonable man can fluctuate according to the characteristics of the accused26. In the case of DPP v Daley and McGhie27 Lord Keith stated (5) that the defendants conduct which caused the fear was unlawful; and (6) that his conduct was such as any sober and reasonable person would recognise as likely to subject the victim to at least the risk of some harm resulting from it, albeit not serious harm. With regard to Kevin and the death of his victim he could argue that the chain of causation was broken by the doctor administering tablets that the victim was allergic to. Case law does little to assist in this area as there have been several cases where the victim might have survived the injuries inflicted on them by the defendant but the actions of the doctors dealing with the victim’s causes their death28. In these cases where the court is satisfied that the chain of causation has not been broken despite the negligent medical treatment the defendant has been found guilty of the charges against them. Kevin could rely on the authority of R v Cheshire [1991]29 if he could prove that the chain of causation had been broken and that it was as a direct result of the negligent treatment of the medical staff that his wife and baby died. In R v Cheshire the defendant was acquitted but only because at the time of the negligent treatment by the hospital staff the injuries caused by the defendant had already started to heal and was no longer life threatening. It has been stated above that at the time of the tablets been given to the husband that he was recovering. The courts may well in this instance find Kevin not guilty of causing the victim’s death as his life was no longer in danger when the medication was given. When looking at whether Joe can avoid liability by arguing that the woman who found him should have offered assistance it is necessary to examine the duty of those who come upon a scene with regards to the offering of assistance30. Under UK law there is no legal obligation on an individual to assist a person in need of treatment unless that person was the cause of the injuries. There is also no legal liability for an omission to act where the person concerned is not responsible for the injuries of the victim. As the woman had no involvement with this incident she should not be held liable for omitting to go to the aid of Kevin. There are certain relationships within the UK where a positive duty to act might arise. The law recognises parents31 or teachers as falling within the category of those that have a duty to protect as they are responsible for the children in their care. Liability is also placed on members of the medical profession who are caring for patients within the hospital32. Where a person is injured in the street doctors and nurses have no legal obligation to assist that person unless they were directly responsible for that person’s injuries. Police officers also have a duty to assist but this only applies when they are acting in performance of their duties and does not place liability on them when they are off duty. Interpreting s27 of Halsbury’s Laws of England PC John Hurst attempted to place such liability on all individual to assist others. Hurst made the comment that he believed that this section implied such a duty as it states “The individual is under certain common-law duties to serve the public. In his considered opinion he stated that such an interpretation would mean that failure to assist could be classed as a criminal offence. At present the criminal justice system does not agree with PC Hurst’s and no such duty is imposed. The effect of the above is that Joe would be liable for Kevin’s death and could face charges of murder or manslaughter depending on the ability of the court to prove intent. Bibliography Allen, C, Practical Guide to Evidence, 2nd Ed, 2001, Cavendish Publishing Ashworth, A and Blake, M The presumption of innocence in English law [1996] Crim LR 306 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 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 Smith, J.C. and Hogan, B, Criminal Law, 7th Ed, 2002, London: Butterworths Smith & Hogan, Criminal Law, 2005 11th Ed, Oxford University Press 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  Table of Cases Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 Q.B. 428 [1968] 2 W.L.R. 422 [1968] 1 All E.R. 1068 (1967) 111 S.J. 912 Coke’s Institutes, 3 Co Inst 47 DPP V Camplin [1978] AC 705; [1978] 2 All ER 168 DPP v Daley and McGhie [1980]2 WLR 239 DPP v Santa-Bermudez [2003] EWHC 2908 (2004) 168 J.P. 373 (2004) 168 J.P.N. 536 DPP v Smith [1961] AC 290 Fagon v MPC [1961] 1 QB 439 Hyam v DPP [1975] AC 55; [1974] 2 WLR 607; [1974] 2 All ER 41 Kent v Griffiths (No.3) [2001] Q.B. 36 [2000] 2 W.L.R. 1158 [2000] 2 All E.R. 474 [2000] P.I.Q.R. P57 [2000] Lloyds Rep. Med. 109 (2000) 97(7) L.S.G. 41 (2000) 150 N.L.J. 195 (2000) 144 S.J.L.B. 106 Times, February 10, 2000 Independent, February 9, 2000 Metropolitan Police Commissioner v Caldwell [1982] AC 341 R v Cheshire [1991] 3 All ER 670, CA 40 R v Coutts [2005] EWCA Crim 52 R v Cunningham [1957] 2 QB 396; R v Miller [1982] 2 All ER 386 R v Dhaliwal [2006] Crim LR 923 R v Gilmour [200] Crim LR 763 R v Hancock and Shankland [1986] AC 455 R v Jakeman (1982) 76 Cr App R 223 R v Janjua and Choudury [1998] Crim LR 675 R v Moloney [1985] 1 All ER 1025 R v Nedrick (1986) 83 Cr App 267 R v Scalley [1995] Crim LR 504. R v Smith [1959] 1 QB 35; R v Malcherek and Steel [1981] 1 WLR 690 R v Walker and Hayles (1990) 90 Cr App R 226 R v White [1910] 2 KB 124 R v Woollin [1997] 1 Cr App R 97; [1997] Crim LR 519; The Times, August 12 1996,CA R. v Lowe (Robert) [1973] Q.B. 702 [1973] 2 W.L.R. 481 [1973] 1 All E.R. 805 (1973) 57 Cr. App. R. 365 (1973) 117 S.J. 144 Stone v Dobinson [1977] QB 354 Watson v British Boxing Board of Control Ltd [2001] Q.B. 1134 [2001] 2 W.L.R. 1256 [2001] P.I.Q.R. P16 (2001) 98(12) L.S.G. 44 (2001) 145 S.J.L.B. 31 Times, February 2, 2001 Independent, January 11, 2001 Daily Telegraph, January 16, 2001 Table of Statutes Criminal Justice Act 2003 Homicide Act 1957 Read More