Criminal Law: Factual and Legal Causation - Coursework Example

Criminal Law 1. The issue in this question requires a discussion of causation that is the factual and legal causation. The issue in respect of the liability is whether is there is an element of causation which is present in the current situation which would break the chain of causation. The test of causation firstly deals with the factual issue that is would the harm have occurred but for the action of the defendant, this is what is known as the ‘but for’ test (R v. White)1. Clearly in respect of the current situation it was the act of Trevor which had led to the harm and therefore the ‘but for’ test proves the fact that the harm was in fact caused by Trevor. The next issue would be that of determining the legal causation that is whether the act of Trevor was the substantial and the operating cause(R v. Cheshire)2, in respect of this it can be said that Trevor’s actions had led to the current situation and his continuing act of hiding the body of Cedric in the cellar led to the death. The next issue would be whether death was a natural consequence of such actions. In respect of this the entire facts at hand led to the satisfaction of this and so these tests would be satisfied. Finally there was no third party intervention in respect of the actions of Trevor. Trevor cannot claim that the victim that is Cedric was so sensitive or that the balloon could not be so terrifying. This cannot be argue on the basis of the egg-shell skull rule whereby it has been stated that the defendant must take the victim as he finds him (Rv. Blaue)3. Thus Cedric’s heart problem and susceptibility would not be taken into account and so the chain of causation would not break. Trevor can also not argue that the death was not caused by him as he merely placed Cedric in the cellar and if proper medical treatment had been received Trevor could have been saved, this is because the acts of Trevor led to the situation and so the chain of causation would remain intact. The actus reus of murder was provided by Sir Edward Coke in the seventeenth century whereby he stated that the act is committed if the defendant ‘unlawfully killeth any reasonable creature in rerum natura under the Queen’s peace’. In respect of the current situation the death of Cedric in the cellar can be said to have been caused unlawfully. As far as killeth is concerned that refers to the requirement that the acts of the defendant can be attributed to be a legal cause of death. Clearly the acts/omission of Trevor to rectify the cause by seeking medical attention for Trevor and the act of scaring him led to the death of Cedric. As far as killing of the reasonable creature in rerum natura is concerned it means that a human life is taken. Clearly this is satisfied as Cedric has died. Finally Queen’s peace means that it must have been within England and not the killing of an enemy at war. This can be seen to have been proved on the facts, as Cedric died in England.. Therefore on the facts the actus reus of murder has been satisfied. 2. The issue in this question requires a discussion of homicide that is murder. The element is that of mens rea of murder and whether Trevor possessed such mens rea. Mens rea for murder has been termed as ‘malice aforethought’; the precise definition of mens rea is the intention to kill or cause grievous bodily harm (R v.Moloney4) Intention discussed in R v. Woollin5 and subsequently applied by Matthwes and Alleyne6 has been described as the defendants aim or purpose was to kill or cause grievous bodily harm or he knew of such harm as being a virtually certain consequence of such an act. Thus this definition at its bare minimum requires virtual certainty and so any level below that of virtual certainty would not suffice. In respect of the current situation it is can be said to be evident that Trevor clearly did not have the intention to kill or cause grievous bodily harm as he merely by using the balloon and the needle wanted to terrify Cedric and so he did not possess the intention. As far as being virtually certain is concerned as of the consequence, it can be argued that he was aware of the nervous disposition and so must have been virtually certain of the consequences. Even though this argument can be made, it must be bore in mind that criminal law does not require balance of probabilities rather it is beyond reasonable doubt and the burden would also be on the prosecution. Thus in respect of the current situation and on the facts of the question it is quite clear that the mens rea for murder is not satisfied. Thus Trevor could not be found liable for murder of Cedric. 3. The issue in this question requires a discussion of involuntary manslaughter that is reckless manslaughter, gross negligence manslaughter and unlawful and dangerous manslaughter, the actus reus and the requisite mens rea would be discussed in accordance with the requirement of the question. Finally the discussion of the possible defences that are available to Trevor will be discussed and so and overall evaluation of the criminal liability, if any, of Trevor would be made. The first type of involuntary manslaughter that which would be considered is that of reckless manslaughter. The changes brought about by R v. G. means that for manslaughter subjective recklessness will suffice. The test for subjective recklessness as established in R v. Cunningham7 was that a person is said to be reckless where he knowingly commits the act even though he knows that there is a risk that such a consequence may result from his act/conduct. This test was extended by the House of Lords in the case of R v. Caldwell8 whereby objective recklessness was included as well. However, after much criticisms the case of R v. Caldwell was reversed in the decision of the House of Lords in R v. G 9. Thus the current test is that of subjective recklessness. However, on the facts it can be said that Trevor was not subjectively reckless as from the facts he was not aware of the result of his acts of terrifying Cedric nor was he aware of his failure that is to get medical attention and so it can be said that he did not foresaw the consequences of the said action. The next in line is gross negligence manslaughter which requires proof of a high degree of negligence. The approach can be seen from Lord Atkin’s judgment in Andrews v. DPP10 where he stated ‘[In the older cases] expressions will be found which indicate that to cause death by any lack of due care will amount to manslaughter, but as manner softened and the law became more humane, a narrower criterion appeared’. There have been difficulties which the courts have found in respect of allowing the juries to ascertain the level of negligence that would be required and this was pointed out by Lord Hewart LCJ in R v. Bateman11 in which he stated that the negligence should be a step higher than the compensation phase and the defendant should have disregarded life and safety of other and such conduct deserves punishment. In Adomako12 the House of Lords stated that having regard to the risk of death involved the action of the defendant were so daft in the circumstances so as to make him liable for his act or omission. Lord Mackay in the current situation pointed out on how directions should be given to the jury. It was further established that the question of duty owed by defendant to the deceased would be determined by the jury after taking into account the evidence that was provided. (Rose LJ in R v. Willoughby13). Thus the first element is that of establishment of a duty of care. The second requisite element is that there must be breach which must amount to gross negligence. In Attorney General’s reference (No. 2 of 1999) it was stated that there was no need the fact that the defendant foresaw a risk of death. The final requirement is that the breach caused the death. In respect of the current situation it can be said that there was clear a clear duty of care that arose after the actions of Trevor whereby he should have sought held. The next element is that of breach, clearly the incorrect assumption of his death and the act of hiding him in the cellar was a breach, however gross negligence is a point for jury to be decided upon. However, the establishment of a duty of care in this respect would be vague and so there is likelihood of the courts not finding a duty and therefore not finding Trevor liable under gross negligence. However, even if the jury does find for Cedric and thinks that the inaction or negligence that has been committed by Trevor was in fact a breach but not gross negligence that there cannot be liability under gross negligence manslaughter and so the final manslaughter under the head of involuntary manslaughter would be moved on to. The liability in respect of unlawful and dangerous act manslaughter is found where an unlawful act was committed by the defendant and this can be casually attributed to the death. However, it is pertinent to mention that the courts in Franklin did find that a civil wrong would be insufficient and furthermore in Andrews, the House of Lords stated that an offence which is based upon negligence would not constitute as an unlawful act for the purpose of constructive manslaughter. As far as dangerousness is concerned the courts in R v. Church14 in particular Lord Edumnd-Davies stated that an unlawful act would be dangerous if ‘all sober and reasonable people’ foresaw that the unlawful act led the victim to the risk of some harm, but not necessarily serious harm. It is important to mention that this test is objective and so there is no requirement of proving that the defendant knew the fact that his conduct carried the risk of harm (R v. Lipman15). However, this test was reformed in R v. Dawson16, but then the case of Dawson has been distinguished as well as applied in subsequent cases. Finally it is important to establish that the unlawful act was the cause of the death. In respect of the current situation it can be said that the Trevor’s action of having a balloon and needle in each hand despite of hi nervous disposition would to the least constitute as battery and so this was the unlawful act. As far as dangerousness of the act is concerned it is evident that Trevor was aware of the nervous disposition and so even though he was not aware of the heart problem of Cedric the knowledge of nervous disposition was sufficient cause of dangerousness. Furthermore since the requirement of this is an objective one it would be easy to establish this and so the dangerousness would suffice and so foreseeability of risk of harm is not required. Thus under the current situation the test of unlawful and dangerous act manslaughter would suffice and so Trevor would be held liable for the death of Cedric under the category of unlawful and dangerous manslaughter and his defence under egg-shell rule would be avoided and the chain of causation would be kept intact. References Ormerod, D C, J C. Smith, and Brian Hogan. Smith and Hogan Criminal Law. Oxford: Oxford University Press, 2008. Print4 Ashworth, Andrew. Principles of Criminal Law. Oxford: Oxford University Press, 2009. Print. Clarkson, C M. V, Heather M. Keating, Sally Cunningham, and C M. V. Clarkson. Criminal Law: Text and Materials. London: Sweet & Maxwell, 2010. Print Glazebrook, P R. Criminal Law 2008-2009. Blackstone's statute books. Oxford: Oxford University Press, 2008. Print. Read More