Law Relating to Murder - Essay Example

(For citations please refer to table of cases down below) This question requires a discussion of the law relating to murder and whether based on the defence of intoxication Zak is able to get his sentence extinguished or based on the defence of provocation or diminished responsibility he can plead manslaughter to a charge of murder. Thus the discussion here will be based upon a detailed analysis of the law relating to the offence of Murder and relevant offences of Provocation, Diminished Responsibility and Intoxication. The charge of murder Murder is the killing of a human being by a human being within the Queen's peace, death arising within 3 years of the act by the accused and also caused by the act of the accused. The actus reus of Murder therefore requires that the defendant should have caused the death of the victim through an act of his/her own. Death should be caused within the Queen's peace and three years of the act of the defendant. In this question the defendant Zak has killed Julie. Murder is a consequence crime and therefore accordingly requires causation to be proved in order for the actus reus of murder to be proved. It is in essence proving that it was the act of the defendant that caused the death of the victim. Causation is a 2-stage test and requires firstly causation in fact. The test for causation in fact is the 'But for test' (but for the act of the defendant, would the victim still have suffered the consequences and if not then there is causation in fact). The element that has to be proved is that it was the act of the defendant that put the victim in a certain setting; in which he would not have been but for the act of the defendant. In this instance it is not difficult to prove causation in fact, as had it not been the act of Zak, Julie would not have died. Once causation in fact is proved the second test of causation has to be satisfied. The second stage of the causation test is causation in law. Causation in law is that it was the act of the defendant that was the operative and substantial cause of the consequences. An act can be defined as the operative cause of the consequences if it has not 'exhausted its effect'. Substantial cause has been defined as something that does not fall within the 'de minimis' principle. In this question it seems that in relation to death of Julie there is causation in law as the act of Zak was the operative and substantial cause of Julie's death. Neither had the act of Zak exhausted its effect and further it was also the significant and sole cause of Julie's death. It seems therefore that the actus reus of the offence of murder is proved as Julie dies in the fire and the place of his death is within the Queen's peace. Mens rea for the Murder or the lack thereof This takes us to the next issue in the question, whether Zak had the requisite mens rea for murder. The mens rea for murder is intention to kill (express malice) or cause grievous bodily harm (implied malice). Traditionally the mens rea for murder is called "malice aforethought". In Smith & Hogan Criminal Law 9th Edition malice aforethought has been defined as: 'a mere arbitrary symbol for the 'malice' may have in it nothing really malicious; and need never be really ' aforethought'. Therefore the requirement today is that the defendant should have intended either death or grievous bodily harm as a result of his/her act. Malice aforethought is generally taken to mean that the defendant should have intention to bring about either of those two consequences. Intention can be defined as the either the purpose of the defendant's act or even if it not the purpose of the defendant's act, intention can be inferred from certain subjective foresight on part of the defendant. In other words if the defendant realizes that the consequences are virtually certain as a result of his act then the courts can hold that the defendant intended the consequences as a result of his act. The problem here is that Mens Rea for this murder seems doubtful as it has been stated in the question. This is because it has been stated that Zak reacted due to his heavy intoxication and that a mixture of shock and blind rage inflamed his senses to the extent that he strangled her to death. Zak is also claiming that he has no recollection of the events past and wants to rely on medical evidence suggesting that his violent reaction was perpetrated in a state of altered consciousness caused by the combination of the alcohol in the champagne and the extreme psychological blow of hearing Julie's news. However it has been stated that medical experience to the contrary that the killing merely triggered off an epileptic seizure during which the killing occurred. This situation thus triggers a discussion of intoxication, provocation and diminished responsibility.It will be better to discuss the defence of intoxication first which will completely nullify the charge of murder being a complete defence. Intoxication In the case of Zak it should be noted that according to the law as it stands Intoxication is not and never has been, a defence in itself. It is never a defence for the defendant to say, however convincingly, that but for the drink he would not have behaved as he did. However where intoxication affects the mental state of the defendant in such a way that the mens rea cannot be proved then intoxication may be a defence. Intoxication today however need not be total incapacity. If the defendant, due to drinks or drugs, fails to foresee the result of his actions as a natural and probable consequence of his act then he may plead the defence of intoxication under Section 8 of Criminal Justice Act 1967.Zak will be required to provide some evidence of intoxication, which can be put before the jury; the onus will then be on the prosecution to establish beyond all reasonable doubt, that despite such evidence, the defendant still had the necessary mens rea. In R v Pordage [1975], the court held that the key question to be asked was, taking into account the defendant's intoxicated state; did he form the necessary specific intentAlso it should be noted that this was a case of voluntary intoxication and Zak will similarly not be entitled to claim that that the resulting intoxication was involuntary because he underestimated the amount of alcohol he was consuming or the effect it would have on him. R v Allen [1988] This is because the law recognizes and stresses upon people who voluntarily take alcohol or drugs should realise the possible consequences in terms of violent behaviour and uncontrollable actions. As far as the evidence of intoxication negativing mens rea it is a defence only to crimes requiring specific intent like murder just as is the case here for Zak.A distinction has to be drawn between being drunk and being intoxicated. A drunken man may commit acts whilst under the influence of drink or drugs that he would never commit whilst sober, but he will not be able to raise the defence of intoxication if he is nevertheless, still capable of forming the necessary mens rea for the crime with which he is charged. It was stressed in R v Sheehan and Moore [1975], that "a drunken intent is nevertheless an intent".Therefore for the purposes of this question becomes imperative to prove that the defendant was intoxicated who is to be shown to have been incapable of forming the necessary mens rea due to the effect of drink or drugs. In R v Stubbs (1989), it was stated that the intoxication needed to be "very extreme". But this is subject to the application of section 8 CJA 1967. Further in R v Lipman [1970]1 it was held if a person consciously and deliberately takes drugs not on medical prescription, but in order to escape from reality, to "go on a trip" or to become hallucinated, he cannot plead his self-induced disability as a defence to a basic intent crime. The courts held that for the purposes of criminal responsibility there was no distinction between the effect of drugs voluntarily taken and drunkenness voluntarily induced . The effect of self-induced intoxication is that it may operate as a partial or complete defence to crimes of specific intent, if a defendant can show that he lacked the necessary specific intent due to drink or drugs.Thus Zak is not exactly looking for a complete acquittal as he was voluntarily intoxicated.Chances are as in the case of murder the defendant's liability will be reduced to that of the "lesser included" basic intent crime of manslaughter. (R v Majewski2). If murder is proved in either case, or he doesn't get an complete acquittal based on the above Zak can rely upon the special defences to murder if they are applicable. There are four special defences to murder that reduce a charge of murder to one of voluntary manslaughter. In this question the relevant defences that require discussion are Provocation and Diminished Responsibility. Section 2 and Section 3 of the Homicide Act 1957 define the defences of Diminished Responsibility and Provocation. Diminished Responsibility Section 2 of the Homicide Act 1957 provides that where the defendant to a charge of murder is suffering from an 'abnormality of mind' at the time of committing the offence he can plead the defence of diminished responsibility. Lord Parker CJ has defined abnormality of mind in the case of R v Byrne3 as "an abnormality of the mind so different from that of ordinary human beings that a reasonable man would term it abnormal" and that this was essentially a matter of fact for the jury to determine. It is important to further understand here that where the abnormality is created by intoxication then the defence is not diminished responsibility unless the defendant is suffering from such an abnormality of mind that he has a craving to drink or take drugs and cannot resist them at all However it in now pertinent to consider something else.Zack's medical record is claiming he is epileptic.Now his case will be governed by the law set out in the paragraphs below.In the question of intoxication as it relates to diminished responsibility although this excludes drink or drugs it does cover disease caused by long term alcoholism or drug-taking. Alcoholism is enough if it injures the brain, causing impairment of judgement and emotional responses, or causes the drinking to become involuntary: R v Tandy [1988] 1 All ER 267. The impairment therefore need not be total, but it must be more than trivial or minimal. The defendant may know what he is doing, know it is wrong, and have some control over himself but find it substantially more difficult than a normal person would to control his actions, eg as in Byrne. The fact that a defendant might have been drunk at the time of committing a murder is largely irrelevant to the issues of diminished responsibility, as it will not constitute an "inherent cause" within s2.For example in R v Gittens [1984] QB 698. The defendant suffered from depression and had been in hospital. On a visit home he had an argument with his wife and he clubbed her to death. He then raped and killed his step-daughter. He had been drinking and taking drugs for medication. The Court of Appeal suggested that where the jury had to deal with both diminished responsibility and intoxication, they should be directed to consider: (1) whether the defendant would have killed as he did without having been intoxicated, and if the answer to that was yes, (2) whether he would have been suffering from diminished responsibility when he did so. This approach has subsequently been approved by the Court of Appeal in R v Atkinson [1985] Crim LR 314 and R v Egan [1992] 4 All ER 470.Chronic alcoholism can become a relevant factor. Where a craving for drink causes an abnormality of mind, the defence will be made out. Where however, the abnormality of mind causes a craving for drink, the defence will not be available ( see R v Tandy [1989] 1 All ER 267)4. In this question another issue is the intoxication of Zak. In R v Anthony Dutchman it was held that even if a defendant would not have killed if he had not taken drink, a defence of diminished responsibility could be available to him if he could satisfy the jury that, despite the drink, a mental abnormality substantially impaired his mental responsibility for his fatal acts. The defence of diminished responsibility will be available to Zak for both offences if she can prove that she was suffering from an abnormality of mind not caused by her intoxication. The defence of diminished responsibility has been discussed above and will not be discussed any further. Based on the above if the medical report of the prosecution is to be accepted for epilepsy this will become a case of diminished responsibility. Provocation Zak can plead that the sight of Julia provoked him and made him very angry.The second defence that might be available to Zak is the defence of provocation. Section 3 defines provocation as loss of self-control. Devlin J in the case of R v Duffy defines provocation as sudden temporary loss of self-control. Provocation can be through words or actions. The act of provocation can come from a third party other than the victim and can be directed at a third party other than the defendant. The act of provocation can even be lawful. The test of provocation has been whether there has been sudden temporary loss of self-control by the defendant and would a reasonable person with the defendant's characteristics also have lost self-control. Case law clearly indicates that there must be no cooling off time between the provocation and the killing. The criterion is that the jury must be satisfied that the reasonable man would have done as the defendant did. This is the "objective" test based upon a hypothetical reasonable person. For a long time, the only characteristics, which could be attributed to the reasonable man, were age, sex and any personal idiosyncrasies that had some degree of permanence and were characteristic against which the provocation had been directed. Another point that should be noted here is that the defence of voluntary intoxication will no be available if Zak had the intention of committing the offence prior to being intoxicated and only got intoxicated to gain the courage to commit the offence. The reasoning behind this is that where a person in intoxicated he cannot form the intent to commit a crime, however the intent in such cases is already formed prior to the intoxication and therefore intoxication does not affect the state of mind. In fact intoxication assists the defendant in the commission of the offence. In conclusion chances are that Zack will be more successful pleading either intoxication or diminished responsibility but their outcome is most likely going to be a charge of manslaughter and a complete acquittal doesn't look promising for him. Table of Cases . R v White [1910] 2 KB 124 R v Smith [1959] 2 QB 35 R v Cato [1976] 1 All ER 260 Hennington [1971] 3 All ER 133 R v Cheshire [1991] 3 All ER 670 Hyam [1975] AC 55 R v Nedrick [1986] 3 All ER 1 R v Moloney [1985] AC 905 R v Hancock & Shankland [1986] AC 455 R v Tandy [1989] 1 All ER 267 R v Humphreys [1994] 4 All ER 1009 R v Davies [1975] QB 691 C.A. R v Pearson [1992] Crim. LR 193 R v Doughty [1986] Crim LR 625 DPP v Camplin [1978] AC 705 R v. Ibrams and Gregory (1981) 74 Cr. App R 154, R v. Thornton (1995) (No 2) NLJ Rep 1888 Camplin (1978) AC 705 HL, and Newell (1980) 71 Cr App Rep Runjanjic v. Kontinnen (1991) 56 SASR 144 DPP v Majewski (1977) AC 433 (H.L) R v Allen [1985] AC 1029 R v Lipman [1970] 1 QB 152 Att.-Gen. For Northern Ireland v. Gallagher [1963] A.C. 349 R v Belfon [1976] 1 WLR 741 DPP v. Majewski (1977) AC 433 HL R v. Mowatt [1968] 1 QB 421 C.A R v Parmenter [1991] 3 WLR 914. Bibliography 1) Textbook on Criminal Law by Michael J. Allen, 6th Edition, Blackstone Press 2) Susan S.M Edwards: Sex and Gender in The Legal Process, 1996 3) Card, Cross & Jones Criminal Law by Richard Card, 14th edition, Butterworths 4) C.M.V. Clarkson & H.M. Keating, Criminal Law Text and Materials, 5th edition, Sweet & Maxwell, 2003 5) Smith & Hogan, Criminal Law, 10th edition, Butterworths, 2002 6) William Wilson, Criminal law Doctrine and Theory, 2nd edition, Longman, 1998 7) Ashworth, A., Principals of Criminal law, 3rd edition, Oxford University Press, 2003 8) Lacey Wells & Quick, Reconstructing Criminal Law, 3rd edition, 2003 12) Laurence Toczek, "Self control and the reasonable man", New Law journal NLJ Vol.150 No. 6948, pages 1222-1223, 11/08/2000 Read More