Analysis of Criminal Law - Case Study Example

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. When considering the liability of Arthur in the above scenario it is necessary to consider several matters. This will involve consideration in relation to the law on transferred malice as well as automatism given the likelihood that Arthur could have been acting under the influence of drugs at the rime of committing these offences. It will also be necessary to discuss the liability of Arthur in relation to the death of George as he was not killed as a direct result of any action by Arthur, but was run over trying to escape from him. An important element in all of the above is consideration of the mens rea and the actus reus of the offence. This is crucial as the court will consider the mens rea of the offender in determining whether their actions were deliberate or accidental. When considering a charge of murder the mens rea required to prove the offence has been determined in the following manner 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). The traditional requirement to probe murder used to be the establishment of the malice aforethought of the accused2. Recent changes in the law have lead to a redefining of intention. This was demonstrated in the cases of R v Moloney [1985]3 and R v Woollin [1988]4. The courts no longer require proof of premeditation and have accepted proof of the intention to cause someone serious bodily harm as an intention to kill5. In using an intention to cause serious bodily harm to aver an intention to kill juries are instructed to examine the foresight of the accused when he took the action he took. Juries are told to consider what they believe he actually foresaw rather than what he ought to have foreseen6 which makes foreseeability a subjective test. The court will also consider whether the defendant has been reckless in his actions and whether this recklessness is a direct cause of the death of the victim. Recklessness was considered in the cases of R v Cunningham [1957]7 and Metropolitan Police Commissioner v Caldwell [1981]8 in which the court averred that the recklessness of the defendants was instrumental in the death of the victims. In Cunningham the court took the view that the defendant had been aware of the risk involved in his venture but had continued with his plan despite knowing that his action could result in the death of the victim. In the later case of Caldwell the courts widened the application of recklessness to include situations were the accused had considered the risk and had deemed the risk to be minimal or non-existent. Lord Keith in R v Reid [1992]9 confirmed the decision in Caldwell stating ‘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’. In cases where it is not possible to prove that the defendant intended to kill or cause serious bodily harm to the victim a lesser charge of manslaughter can be substituted10. Manslaughter is usually averred where the intention of the accused is regarded as 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. By contrast direct intention is where the defendant desires the death of the victim. The courts have frequently used the foresight test mentioned above to support an assertion of direct intent12. Defences against charges of murder include provocation, self defence and automatism. In some circumstances defendants have attempted to rely on proving that the chain of causation has been broken13 to demonstrate that their actions are no longer the primary cause of the death of the victim. This might apply if the victim has to receive medical attention as a result of the actions of the defendant, and the medical treatment is negligent and results in their death. In the above this could also be averred in the death of George as he was killed by being run over whilst trying to escape from Arthur. When relying on the defence of automatism it is necessary to consider the occasions where the courts have allowed such a defence, and when this has been rejected. Automatism is used to show that at the time of the offence the defendant lacked the mens rea for the offence. 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…” It was also noted in Attorney-Generals Reference (No 2 of 1992)15 that .....the defence of automatism requires that there was a total destruction of voluntary control on the defendants part. Impaired, reduced or partial control is not enough. In this case the court held that driving without awareness was insufficient to prove automatism. In establishing a defence of automatism the onus is on the defence to prove this is the case. The courts have allowed this defence in situations where the accused has a temporary impairment of the mind due to the taking of medication or of a sudden blow to the head. The consumption of recreational drugs and alcohol do not generally allow for a defence of automatism as the impairment of the mind is likely to be regarded as self induced16. In such cases the courts are more likely to aver a charge of murder on the basis that the accused was reckless in consuming the drugs and alcohol. One exception to this rule was the case of R v Tandy (1988)17 where the defence was able to demonstrate that the accused was an alcoholic and that he was unable to control his desire to drink. The defence stated that the offence was committed whilst the accused was intoxicated and that the action of consuming the alcohol was involuntary on the part of the accused due to his condition. The jury in this case agreed that the defendant was unable to control his desire to drink and a defence of diminished responsibility was accepted. Other cases were the taking of drugs or alcohol have been accepted as a defence include R v Lipman (1969)18 where the defendant was able to prove that the taking of LSD had impaired his judgment which caused him to turn on the victim and kill her, and R v Sheehan & Moore [1975]19, where the accused demonstrated that he was intoxicated at the time of committing the offence. In both cases the jury was unable to determine the intention of the accused as their actions were impaired by the drugs and alcohol. Before assessing Arthur’s liability it is necessary to consider the doctrine of transferred malice. This occurs where the intended victim is not the actual victim, which would be the case above where Arthur intended to hit George but instead hit Tony20. 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’. As mentioned above consideration needs also to be given to the chain of causation. The chain has been deemed to have been broken in some instances by either the actions of a third party24 or of the victim25. As also mentioned incorrect medical treatment can also break the chain of causation26. Case law can assist in determining whether the chain of causation has been broken. The recent case of Corr v IBC Vehicles Ltd [2008]27 demonstrates 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. The earlier case of R v Ogunbowale [2007]28 also demonstrates the way in which an intervening event can break the chain of causation. In this case the victim died as a result of falling over and hitting his head on the ground after the attack rather than the blow itself. From all of the above it is now possible to advise on the liability of Arthur with regard to any potential charges he might face. In the scenario it stated that Arthur intended to injure someone when he left his house. Arthur is likely to try to defend himself on the ground of automatism as he was under the influence of drugs at the time of the attacks, however, as this condition was self induced there is a strong possibility that such an argument will be rejected by the jury. Using the authority of Tandy, mentioned above, Arthur might be successful in his use of automatism as a defence if he can demonstrate that he is a drug addict and therefore cannot control his urge to take drugs. If the court reject this defence Arthur is likely to be charged with causing all 3 deaths. Looking at each of the deaths individually it should be possible to advise on liability. Starting firstly with the death of Larry it is necessary to firstly consider the position if Larry had died from the drug overdose since Arthur thought Larry was already dead before he started the fire. If Arthur had not started the fire and Larry had died from the overdose Arthur could have attempted to rely on the consensual behaviour of Larry as a defence to murder. Arthur could have argued that the taking of the drugs on the part of Larry was a voluntary action and so Larry was essentially responsible for his own demise. In murder cases the court will consider causation in determining liability29. Where the death us the result of the supply of a controlled drug30 the court will determine whether the supply is the operative cause of the death. The courts considered this in the case of R v Khan 31 in which the victim, who was a first time heroin user, injected themselves with an amount that was twice the amount an experienced user would have administered. In this case the court felt that causation could not be established as the victim had administered the dose themselves32. It was suggested by the judge in this case that the accused should be liable for the death under a charge of gross negligence33 as was decided in the case of R v Ruffell34 where the accused had tried to assist the victim who had taken an overdose but was unable to prevent the victim from dying. The court in Ruffell held that the accused had created a duty of care to the victim by attempting to resuscitate him. General liability for deaths caused through the taking of an overdose would be charged under the Misuse of Drugs Act 1971 for supplying 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 where the victim dies as a result of injecting themselves with an overdose the defendant is likely to rely on the principle of voluntary intervention37 as happened in the case of R v Armstrong [1989]38. The court in this case held that the action of the victim in injecting himself amounted to a novus actus interveniens thereby breaking the chain of causation. In contrast in the case of R v Kennedy (No 1) [1999]39 the accused was held liable on the basis that he assisted and encouraged the victim to inject the heroin. This was based on the fact that the accused prepared the syringe for the victim. The decision was later reversed on appeal on the grounds that the accused could only be guilty of aiding and abetting if the action of the deceased had been unlawful. Self injecting was not regarded as unlawful and the conviction was duly quashed. Applying this to the situation with Larry, Arthur could have argued that he was not responsible for his death if it could have been established that Larry died as a result of the overdose. However, it has been stated above that Larry was only unconscious when Arthur left the house and it cannot be proven whether Larry would have died from the overdose even though Arthur believed that Larry was already dead the actions of starting the fire would mean that Arthur is likely to be charged with murdering Larry. The court may reduce this to a charge of manslaughter if the defence can prove that Arthur did not intend to kill Larry. The difficulty the court would face in this situation is that Arthur already believed that the overdose had killed Larry already which would mean that they might have problems proving intent. When considering the position with Tony the court would also struggle to prove intent as the intended victim had been George rather than Tony. Using the principle of transferred malice the court could find Arthur guilty of causing Tony’s injuries even though George was the intended target. As with Larry, Arthur assumed that Tony was already dead when he pushed his body into the river. As a result of this the court prosecution could charge Arthur with his murder on the basis of the recklessness of his action of pushing the body into the river. The court might consider a lesser charge of manslaughter on the basis of lack of intention, as the intended victim had been George and not Tony. With George, it is known that Arthur intended to inure him from the point of leaving the house. It could be argued that the action of George running into the path of the bus broke the chain of causation; however, the prosecution is likely to argue that George would not have felt the need to run away if Arthur had not tried to attack him. Given that Arthur had decided to cause injury to someone before leaving the house it could be argued that he had the mens rea for the offence from the point of leaving home. From the above it can be noted that the prosecution need only prove that the accused intended to cause someone serious bodily harm in order to substantiate a charge of murder. Applying this to the situation with George the prosecution is likely to charge Arthur with the murder of George, despite the fact that the overall cause of the death was the collision with the bus. Using the cases of Cunningham and Caldwell Arthur could face a charge of murder on the basis that his reckless actions led to George fearing for his life and fleeing the area. 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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