The men's Rea for Murder Which Has Been Described in Archbold - Assignment Example

In the above matter it is necessary to consider whether John could be charged with causing the deaths of Annabelle, Neil and the baby that was born stillborn. In order to do this it will be necessary to consider whether John had the necessary mens rea for the offence of murder, and whether his actions were sufficient actus reus for the offence. It will also be necessary to consider any possible defences that might be raised by John such as automatism, diminished responsibility and provocation. In this instance it will also be necessary to discuss the effects of a break in the chain of causation. The starting point is to consider the mens rea for murder which has been described in Archbold 19-1 (2008) as being 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. Traditionally the courts had to establish the malice aforethought of the accused2, however cases such as R v Moloney [1985]3 and R v Woollin [1988]4 have led to a redefining of the law in relation to intention. As a result of these and other cases there is no longer a requirement to show that the act was premeditated, and the courts now only require the prosecution to show that the accused intended to cause serious bodily harm to the victim in order to prosecute for murder5. This places a burden on the jury to examine the foresight of the accused on the basis of what they believe he actually foresaw as opposed to what the defendant ought to have foreseen6. A further consideration will be the recklessness of the actions of the accused as was considered in R v Cunningham [1957]7 and Metropolitan Police Commissioner v Caldwell [1981]8. In Cunningham the court held that the recklessness of the accused was instrumental in the death of the victims. It was the opinion of the court that the accused knew the risk involved in his actions but had still continued in his venture despite being aware that his actions might cause the death of another. The recklessness test was further extended in Caldwell were the courts accepted that even if the accused considered the risk to be minimal or non-existent they might still have the requisite mens rea to prove the offence of murder. In 1992 Lord Keith reaffirmed this decision in R v Reid [1992]9 in which he stated that the ‘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’. If the courts are unable to prove intention to kill or cause serious bodily harm a lesser charge of manslaughter might be substituted10. Such charges are likely where the courts can only establish oblique intent of the accused. Oblique intent occurs in situations where the accused knows that his actions could cause the death of another but does not desire this outcome11, as opposed to direct intention where the accused actually wants to cause the death of another. The foresight test mentioned above is frequently used to aver direct intent12. Having considered the requirements for a charge of murder or manslaughter it is necessary to consider possible defences that may be raised against a charge of murder, which might either extinguish the charge entirely of reduce the charge to a lesser charge of manslaughter. In this instance it is necessary to consider provocation, automatism and diminished responsibility. If Neil had thrown the first punch, then it would also be necessary to consider the possibility of self defence. It will also be necessary to consider the law in relation to the chain of causation, as a break in the chain can lead to the accused being exonerated from causing the death of the victim. When relying on proving that the chain of causation has been broken the accused has to show that their actions were no longer the primary cause of the victim’s death13. This has been successfully argued in cases where the victim has subsequently died as a direct result of negligent treatment at the hospital. The courts have held that the chain of causation has been broken where the actions of a third party14 or of the victim15 have led to the death. Third party actions can include incorrect medical treatment16. Defence lawyers rely on case law to establish a break in the chain as was demonstrated in Corr v IBC Vehicles Ltd [2008]17 in which the court concluded that the actions of the deceased had broken the chain. The victim in this instance took his own life as he was unable to live with the disfiguring injuries sustained following an incident in his workplace. His widow had attempted to hold the company liable for his death on the grounds that they had failed to address his depression. However, the court disagreed stating that the foreseeability that he would commit suicide was too remote and therefore his death should be treated under the principle of novus actus inteveniens. The case of R v Ogunbowale [2007]18 demonstrated how an intervening event can also lead to a break in the chain of causation. In this case the cause of death was from the victim falling over and striking his head on the ground rather than from the attack itself. Although negligent medical treatment can lead to the acquittal of an accused for murder, in the above situation, the prosecution could rely on the case of R v Mellor19 to show that John should be held liable for Neil’s death. In Mellor the victim died 2 weeks after the attack as a result of negligent treatment by the hospital20 which resulted in him contracting bronchopneumonia. Even though the victim would have survived had the hospital given him oxygen on the day he died, the court were still satisfied that the chain of causation had not been broken. Conversely, in R v Jordan21 it was held that the injuries inflicted on the victim by the accused were no longer an operative cause of the victim’s death and the charges of murder were quashed. In the earlier case of R v Smith22 t. he court refused to accept that intervening events had led to the death of the victim and the conviction of the accused was upheld23. In the case of Annabelle, it could be argued that the refusal of treatment amounted to her taking her own life, as she knew that refusing would lead to her death24. If the courts accept this argument then John might be acquitted for her murder. In this case the court could rely on the case of R v Blaue [1975] 25 to show that John should still be held liable despite the fact that Annabelle died as a result of refusing treatment. In Blaue the victim refused a blood transfusion that would have saved her life as she was a Jehovah’s Witness. The court held that the defendant should still be held liable applying the doctrine of the ‘thin skull test’ which requires the accused to take their victim as they find them. This test is explained to the jury in the terms of an accused hitting someone over the head with the strength of a blow that would ordinarily cause no lasting harm, but because the victim has a thin skull death ensues. Applying this to John the court might determine that the attack on her was the operative cause of her death despite the fact that medical treatment could have prevented her death. Automatism can be used as a defence if the accused can show that they lacked the mens rea for the offence. Automatism was defined in Bratty v Attorney General of Northern Ireland26 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." In this case Lord Denning observed 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…” This was reaffirmed in Attorney-Generals Reference (No 2 of 1992)27 where it was held 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. A defence of automatism places the burden on the defence to prove the assertion. A temporary impairment of the mind through the taking of alcohol or drugs was successfully argued in R v Tandy (1988)28, but only because the defence could show that the accused was unable to control his desire to drink as he was an alcoholic. The effect of this was that the accused was deemed to be suffering from diminished responsibility due to his intoxication. Similar decisions were handed down in R v Lipman (1969)29, in which the accused was able to prove that his judgment had been impaired by LSD when he killed his victim, and R v Sheehan & Moore [1975]30, in which the defendant was intoxicated at the time the offence occurred. In relying on provocation as a defence the accused has to admit causing the death but offer a plausible explanation for why they felt provoked by the victim31. In order for provocation to be proven the accused has to satisfy the definition laid down in s3 of the Homicide Act 1957. They must show that they were provoked either by things said or done by the victim or another32, which led to them losing self control. In relying on this as a defence John would have to show that Neil’s comments and actions had caused him to lose self control33. John would have to show that a reasonable man34 would have acted in the same manner given the same provocation. The test for provocation can be a subjective test35 as demonstrated in R v Duffy36, in which the defence had to show that the loss of self control was ‘sudden and temporary’. The ‘sudden and temporary’ loss of self control argument was not accepted in R v Ibrams and Gregory37 as there was clear evidence that the accused had been bullied by the victim for a long time before the attack was carried out on the victim, although on other occasions the courts have taken into consideration the conduct of the victim in determining whether the accused has been provoked as was the case in R v Davies38. Davies can be distinguished from Ibrams & Gregory as the provocation in Davies only occurred immediately prior to the attack. When provocation is considered objectively the court will consider the reasonable man test. When considering the reasonable man test the court would have to consider whether a person of the same age and characteristics of the accused would act in the same manner. This was demonstrated in the case of DPP v Camplin [1978]39 where the court were forced to conclude that each case had to be judged on its own merits as the definition of the reasonable man varied in every single case. The courts refused to accept that ‘physical or mental infirmity’ satisfied the criteria of the reasonable man test in Bedder v DPP40. This has been refuted in subsequent cases and now the characteristics of the accused are considered to be crucial in determining the reasonable man test41 as was demonstrated in R v Morhall42 and Luc Thiet Thuan v R43. In both of these cases it was held that the judge had a duty to make it clear to the jury that they should not make any allowances for the characteristics of the defendants, and that judges should instruct the jury to consider whether an ordinary person would have reacted in the same manner as the defendants. The courts have also refused to accept provocation in cases where there is a clear indication that there had been a cooling off period before the attack took place44. From the above it can be concluded that John might initially be charged with the murder of Annabelle and Neil, although the charges are likely to be reduced to manslaughter if the prosecution cannot show that he had the necessary mens rea for the offence at the time of the attack. Using the defence of automatism, provocation or diminished responsibility would also reduce the charge to manslaughter, however, the onus of proving either of these rests on the accused. If the courts accept that the chain of causation has been broken then John might avoid being charged with murder or manslaughter, and might be just charged with assaulting them both. In relation to the stillborn child it is unlikely that John would face any charges as it would be difficult to prove that the child might have been born alive if John had not attacked Annabelle. 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