Features Of Consideration Of Criminal Cases - Essay Example

Features Of Consideration Of Criminal Cases To the House of Lords 1. This is a skeleton argument submitted on behalf of the Appellant in respect of the trial judge’s decision at first instance finding the Appellant guilty of the offence of murder. 2. It is submitted on behalf of the Appellant that the trial judge at first instance erred in a misapplication of the law to the facts in convicting the Appellant of murder on the following grounds: a) The defence of provocation was not available under the circumstances of the case; b) The Appellant caused the Victim’s death. 3. It is submitted on behalf of the Appellant that the Appellant that the defence of provocation was applicable under the circumstances of the case under section 3 of the Homicide Act 1957 and that the Appellant did not have the necessary mens rea for murder. 4. It is further submitted that the painkiller administered to the Victim at the hospital was the cause of death and broke the chain of causation. The Facts and Charge 5. The Appellant was the Victim’s partner and lived with the Victim for a continuous period of six years and it is not in contention that the Appellant and Victim had a difficult relationship. 6. The Victim controlled the finances, was a heavy drinker and was subjected to repeated incidents of physical violence, particularly after a drinking session. . 7. On the night of the incident, the Victim had been passed out on the sofa as a result of another heavy drinking session. When the Victim woke up, he demanded that the Appellant bring him something to cure his hangover at which point the Appellant retrieved weedkiller, which the Appellant then used to lace the water given to the Victim. 8. The Appellant upon seeing the Victim becoming ill immediately called an ambulance in remorse. 9. The Victim’s treatment on arrival at hospital required his stomach being pumped. The Victim was then kept in observation whilst expecting a full recovery and subsequently died as a result of an allergic reaction to the painkiller administered. 10. During the trial at first instance, it was determined that the Victim was thought to be making a full recovery at the hospital and the hospital accepted that the Victim’s allergy to the painkillers could have been detected by simple, routine tests. 11. The Appellant was tried and convicted of murder, which was upheld by the Court of Appeal. The Appellant denies the charge. Provocation 12. The common law definition of provocation was determined in the case of R v Duffy ([1949] 1 All ER 932) sets out the following two stage test for the defence of provocation: 1. Subjective test – whereby the accused must have lost self control, which was a sudden and temporary loss; and 2. Objective test- where by what the defendant did, any reasonable person would have done the same if he was provoked. 13. The first issue in the Appellant’s case is with regard to the applicability of the subjective test 14. It is evident from the case law dealing with the subjective test that any element of pre-meditation will negate the requirement of “sudden loss”. The Court of Appeal has also established in the case of R v Humphreys ([1995] 4 All ER 1008) that a defence of provocation will succeed in the event that there are a series of incidents over time to drive the defendant to murder. Often this has been applied to cases involving domestic violence where the defendant has been subjected to months of violence and physical abuse as highlighted by the decision in the case of R v Ahluwalia (1992) 4 ALL ER 889. 15. On this basis it is submitted that the subjective test of provocation is satisfied with regard to the Appellant’s position and the next issue to determine is the objective test. 16. In the case of DPP v Camplin ([1978 AC 705), Lord Diplock gave the following definition of the reasonable man in considering the objective test: “It means an ordinary person of either sex, not exceptionally excitable or aggressive, but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today”. 17. Lord Diplock further asserted that the relevant question was not whether such a person would be provoked to lose their self control in the circumstances, but whether they would react to the provocation as the defendant did. It is also vital to consider the gravity of the provocation and the entire factual circumstances. 18. In the case of R v Smith ([2000] 3 WLR 654) the House of Lords asserted that it was not sufficient that something had caused the mere loss of self control, but the relevant question was whether the loss of control was sufficiently excusable to reduce the gravity of the offence from murder to manslaughter. 15. In the case of R v Ahluwalia ([1992) 4 ALL ER 889) it was held that the relevant question to the jury in such circumstances was to consider whether a reasonable person suffering from “battered woman syndrome” would have lost her self control. 16. Additionally, in the HM’S AG for Jersey v Holley ([2005] 3 ALL ER 371), the Privy Council held that “whether the provocative acts or words and the defendants response met the “ordinary person standard prescribed by the statute is the question the jury must consider, not the …looser question of whether, having regard to all the circumstance, the jury consider the loss of self control was sufficiently excusable”. 17. Accordingly, it is submitted that the circumstances indicate that the Appellant was subjectively and objectively provoked and it is further submitted that the Trial judge misapplied the law in failing to consider the applicability of the defence of provocation and direct the jury accordingly. Causation 18. Under the legal causation test, it is acknowledged that it is not necessary for the Appellant’s conduct to be the sole cause of death however it must be the substantial cause and have made a significant contribution to the Victim’s death (R v Cato [1976] 1 All ER 260). Ultimately, this is determined according to the facts of each case, and the decision in R v Smith ([1959] 2 All ER) established that the original wound must still be operating and a substantial cause at the time of death. 19. With regard to the current scenario, the doctors administered a painkiller that the Victim was allergic to and the medical staff at the hospital acknowledged that the Victim’s allergy could have been deciphered from routine tests. Therefore it is submitted that it was the failure of the medical services to do so and the subsequent negligence in administering the treatment that was the substantial cause of the Victim’s death. 20. In R v Smith ([1959] 2 All ER) it was also asserted that only if “the second cause is so overwhelming as to make the original wound merely part of history can it be said that the death does not flow from the wound”. Furthermore, in the case of R Cheshire 1991] 3 All ER 193, Beldam L.J asserted that “it will only be in the most extraordinary and unusual case that such treatment can be said to be so independent of the acts of the accused that it could be regarded in law as the cause of the victim’s death to the exclusion of the accused’s acts”. 21. In the R v Cheshire case, it is submitted that the facts are analogous to the current application for leave to appeal on grounds that the Victim was expected to make a full recovery prior to receiving the pain killers. 22. It is submitted that the administering of the pain killer was a novus actus interveniens and satisfied the Smith test of being “so overwhelming as to make the original wound merely part of the history”. As such, this broke the chain of causation. Appellant’s Position 22. The Appellant was provoked and did not have the necessary mens rea for murder and this should have been directed to the jury for consideration. 23. The administering of the painkiller caused the Victim’s death and therefore broke the chain of causation as a novus actus interveniens. 24. For these reasons, it is respectively submitted that the trial judge at first instance misapplied the applicable law to the facts and the Appellant asks the court for permission to appeal. BIBLIOGRAPHY Michael Allen (2007) Textbook on Criminal Law, 9th Edition Oxford University Press. C. Elliot & F. Quinn (2006). Criminal Law. 6th Edition Longman. Jerome Hall (2005) Principles of Criminal Law, The Lawbook Exchange Limited. D. Ormerod, (2005). Criminal Law (11th edition). Oxford: Oxford University Press. William Wilson (2003), Criminal Law: Doctrine and Theory, 2nd Edition, Longman All case law available online at www.lexisnexis.co.uk All UK legislation available online at www.opsi.gov.uk and www.statutelaw.gov.uk Statutes Homicide Act 1957. Read More