Charging with Murder or Manslaughter - Case Study Example

Topic: Criminal Law Style: Harvard Language Style: English (U.K Answer: This problem question deals with a number of offences including criminal damages, non-fatal offences against person and homicide offences. It also deals with several possible defences including possibly insanity and diminished responsibility, voluntary intoxication and self-defence. This answer first deals with Alan, then Ed & Doctor Fiona. It will finally envisage Alan's criminal liability for Clive & Betty's death. In order to establish liability it need to discuss actus reus, mens rea and defences. Alan may be charged under murder or manslaughter. Murder is the specific intent crime and manslaughter is the basic intent crime. If he does not convicted under murder then he will be charged under constructive manslaughter. A person will be liable for murder if he unlawfully killing a reasonable person who is in being under the Queen's Peace with intention to kill [Moloney1, Cunningham 2, Vickers 3] or intention to cause grievous bodily harm [DPP v Smith 4], [Saunders 5]. Murder is unlawful homicide committed with 'malice aforethought' with the penalty of mandatory life imprisonment. 'Malice aforethought' describes the mens rea for a conviction of murder. In this question, Alan's intention was to kill Clive and Betty. May be he will charged under murder. However, if Alan does not convicted under murder then he will be charged under constructive manslaughter. The substance of this offence is that if he kills Clive in the course of doing an unlawful act or constructive manslaughter provided such act is not justified. Thus the 'unlawful act' must satisfy the criteria. Unlawful act must be more than merely negligent act (Andrew v DPP6). In Andrew, D had been driving dangerously s when he killed the deceased. Dennis, an old friend from the pub, staggers over to Alan and gives him a hard slap on the back. Alan stumbles whilst pulling the trigger and shoots a paraffin lamp on the bar. It ignites and the pub catches fire. The prosecution must prove that the death was caused by the Defendant's act. In order to prove factual causation two things must be proved, firstly that but for the conduct of the accused the victim would not have died when they did, so if the defendant would have died at the same time regardless of the act or omission of the accused the accused will not be found guilty. Alan may claim that Dennis's act was breaking the chain of causation. He can argue that his act was not legal cause of Clive or Betttty's death. However, the landlord of the pub, Ed, has piled beer crates in front of the fire exits so the only escape is through a narrow door. Clive dies in the fire and Betty collapses in the attempted escape. The accused conduct must be a sine qua non of the prohibited consequence. In R v White7 put cyanide in his mother's drink with intent to kill her later his mother was found dead with the glass containing the poisoned drink beside her three parts full. Medical evidence established that she had died of heart failure and not from poisoning. D was acquitted of murder as he had not caused her death and thus there was no actus reus. He was however, convicted of attempted murder. But here Alan's act is legal cause of Clive's death and Dennis's act did not break the chain of causation. Section 1(1) of the Criminal Damage Act 1971 provides that a person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence. Section 1 (3) creates the offence of statutory arson-an offence committed by destroying or damaging property by fire. For the offence to be complete some property must be destroyed or damaged by fire. The damage may of course be quite insignificant (it would be enough, for example, that wood charged) In Cf Parkker8, the court held that no visible flame is necessary. In the Goodfellow9, D was convicted of manslaughter having set fire on council house in which lived as he wished to be rehoused. D rescued two of his children but his wife, another child, and another woman died as the fire spread more quickly than he had anticipated. On appeal D argued that that the unlawful act was not directed at the victims. CA dismissed his appeal on the basis that if D's act was not directed at V but it was the direct cause of his death cause of his death and if such act was objectively dangerous, then he may be guilty of this form of manslaughter. In Millar10, d, a vagrant who was squatting in a house, awoke to find that a cigarette he had been smoking had set fire to the matters on which he was lying. He did not attempt to extinguish the fire but moved to another room. The house caught fire. D was convicted of arson contrary to s. 1(1) & s. 1(3) of the Criminal Damage Act 1971. The HL dismissed his appeal against conviction holding that when became aware of what he had done in setting the mattress on fire he was under a duty to take such steps as were within his power to prevent or minimise the damage to the property at risk. In R v Willoughby11, Defendant had recruited his friend, the victim, to set fire to the building. His motive was financial. He wanted to claim on his insurance policy. D was changed with arson, being reckless as to whether life was endangered, contrary to Section 1(2) and 1(3) of the Criminal Damage Act 1971 and manslaughter. He was convicted of both offences and appealed against his conviction for manslaughter. In 1981 in case of MPC v Caldwell12, Lord Diplock created an objective form of recklessness, but this was abolished in 2003 by the case of R v G and another13. This was the central issue in the case of R v G and another14. Two boys aged 11 and 12 had gone camping without the parent's permission. In the middle of the night they had enter the backyard of a shop where they had found some bundles of newspaper. They had started to read the newspapers and had then set light to some of the papers. They put the burning newspapers underneath a large plastic wheelie bin and left the premises. A large fire resulted that caused 1 million of damage. The boys had thought that the newspaper fire would extinguish itself on the concrete floor of the yard. Neither of them realised that there was any risk of the fire spreading as it did. The trial judge and the Court of Appeal both left that they were bound by the precedents and reluctantly convicted the boys of arson under the Criminal Damage Act 1971. The House of Lords, however, allowed the appeal and dramatically overruled Caldwell. According to R v G [2003] recklessness will always be interpreted as requiring a subjective test. In that case, the House favoured the definition of recklessness provided by the Law Commission's Draft Criminal Code Bill in 1989: "A person acts recklessly with respect to- a) A circumstance when he is aware of a risk that it exists or will exist; b) A result when he is aware of a risk that it will occur, and it is, in the circumstances known to him, unreasonable to take the risk." The defendant must always be aware of the risk in order to satisfy this test of recklessness. In addition his conduct must have been reasonable. Alan has a paranoid personality and is prone to depression. Betty is Alan's girlfriend. She has affairs with different people from time to time and does not conceal. Betty is going to leave Alan for Clive. From the fact of the question it is clear that Alan can claim that he has been suffering at the time of the offence from some sort of mental disturbance or defence of provocation or diminished responsibility. Seeing both Betty and Clive together provoked him. In order to establish the liability of Alan it is necessary to consider few recent cases. In R v Faqir Mohammed15 there are two elements to this defends which, for the purposes of simplicity, may be identified as: a) Whether the D lost his or her self-control and if so: b) Whether s/he should reasonably have controlled him or herself The D, a devout Muslim, stabbed his daughter to death. She had, he said, brought shame upon the family. He had discovered a man leaving her bedroom. The D had suffered from depression since the death of his wife and said that what had happened had caused him to lose his self control. The jury had to considered whether his other characteristics of strongly held religious beliefs and depression provided a sufficient excuse to reduce murder to manslaughter. The defendant was convicted to murder and appealed on the ground that the evidence brought by the prosecution of his previous violence to his wife and children was inadmissible and prejudicial. The Privy Council over ruled the decision of Luc Thiet Thuan16, R v Smith17. In Smith, defendant gets a defence under s 3 of the Homicide Act 1957. In case A-G for Jersey v Holly18 held that Smith (Morgan) was not an accurate statement of English Law. In R v James and R v Karmi 33the CA upheld the decision of Holly. Voluntary intoxication: Here Alan deliberately becomes intoxicated with the intention of giving himself "Dutch courage' in order to commit an offence, the defence will not be allowed (AG for Northern Ireland v Gallagher19). Part 2: Now it needs to consider about Doctor Fiona's liability. Doctor Fiona terminates Betty's life support machine. She thought Betty would recover. Here it needs to consider some case law. In R v Cox20, the court held that if a doctor genuinely believes that a certain course is beneficial to his patient, either therapeutically or analgesically, then even though he recognised that that course carries with it a risk to life; he is fully entitled, nonetheless, to pursue it. It in those circumstance the patient dies, nobody could possibly suggest that situation the Doctor was guilty of murder or attempted murder. In Jordan21 D stabbed V who was taken to hospital and the wound was stitched. Eight days later V died. D's conviction was quashed. At the time of the death the wound was healed but V had died as a result of 1) a Terramicin injection to prevent infection, administered after V had shown intolerance to a previous injection, and 2) the intravenous introduction of large qualities of liquid which had caused V's lungs to become waterlogged. The treatment was described as 'palpably wrong'. In Smith22 Lord parker stated that if at the time of death the original wound is still an operating cause and a substantial cause then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Where the medical treatment is negligent but the wound is still operating, it wound seem that both the perpetrator of the wound and the doctor treating it could be said to have caused the death. In such situation, however, there would bed little likelihood of a prosecution for manslaughter being brought against the doctor. Where, however, the owned has healed and negligent treatment independently causes death a prosecution of the doctor may soon. In Cheshire23 the CA upheld the conviction of murder on the basis that the respiratory complications were a direct consequence of D's acts despite medical negligence. So, Doctor Fiona would be liable or not depends on judge's discretion. In Adomako24 an anaesthetist failed to notice that a tube had become disconnected from the ventilator and the patient died. Lord Mackay disapproved Seymour and held that the Bateman test of gross negligence was the appropriate test in manslaughter cases involving a breach of duty, allowing the jury to consider the accused's conduct in all the surrounding circumstances, and to convict only if the negligence was very serious. It has been held, however, that if the immediate cause of death is part of what might be regarded as one 'series of acts' or one 'transaction' then liability for murder may be imposed if the defendant acted with malice aforethought at some point during that 'series' or 'transaction' (Thabo Meli 25; Church 26). In Le Brun27, the court of appeal held that if a person unlawfully assaults another and, believing he has delivered a fatal blow, attempts to conceal or otherwise dispose of the body, then he will be guilty of murder if the blow was struck with malice aforethought, even if the immediate cause of death stems from the concealment. Thus, in this case, jack may be charged with murder. In conclusion it can be said that homicide is a common law offence & they will be liable for murder or manslaughter, its judge discretion because it is common law crime and jury will decides the facts of the case. References: Ashworth, A. (2003), Principles Of Criminal Law, 4th edition, Oxford University Press, London. Michael J. Allen, (2003), Criminal Law, 7th edition, Oxford University Press, London Smith & Hogan, (2006), Criminal Law, Cases & Materials, 8th edition, Butterworths Lexis Nexistm UK, Read More