The Main Aspects of Criminal Law - Case Study Example

"Criminal Law" The fact based issues require an in depth assessment of matters related to criminal law. The main aspects of criminal law, i.e actus reus, mens rea, along with defenses need to be considered upon. The main ingredients of an offence require a prohibited act or state (for example injuring someone) brought about with a prohibited state of mind ( i.e purely accidental conduct will not suffice) and there are no valid defences present. The prohibited act is known as the actus reus while the mens rea and defences are included in prohibited state of mind (Fletcher, 2000). The mens rea which will suffice is the intention or subjective recklessness. Intention can be categorized into direct intent or oblique intent. Direct intent will be present if it is found that the act caused was the purpose of the actor. Oblique intent on the other hand is where the jury may find the result intended even if it was no the actor's purpose, this is found if the jury finds that i) the result is virtually certain consequence of his act; and ii) he knows that it is a virtually certain consequence (R v. Woollin). Subjective recklessness is found when the defendant is aware of the risk involved with his action, but still does the act. (R v. Cunningham1982 AC 566)(Smith & Hogan, 2006) The regular elements of actus reus are voluntariness that is the act must always be willed and causation, which means that the act must be caused by the defendant. The possible issues in the instance of Seema are possible criminal liability flowing from the death of Derek and the defenses which she might claim in reducing her criminal liability if proved. Moving on the mistake of Dr. Wisdom and the possibility of the breaking of chain of causation will be considered. Finally the act of Arun will be considered and the subsequent death of Dr. Ali will be considered. The actus reus of murder is still found in the wording of Sir Edward Coke, which is that the actus reus is present when the defendant "unlawfully killeth any reasonable creature in rerum natura under the Queen's peace' (Smith and Hogan, 1983) The requirement that the killing is lawful is an important aspect and so certain killings which may be as a result of use of reasonable force in self defense may be excluded (Re A 2000 4 All ER 961). Further it is necessary that the defendant accelerated the death of the victim.(Justis) The mens rea or mental element is known by the term malice aforethought and it is general to state that an intention to cause grievous bodily harm will suffice for murder. (Vickers 1957 2 QB 664)(Koenig, 2007) By the facts it can be stated that the actus reus and mens rea can be presumed by the fact that Seema finds the knife and stabs Derek. However the defense of provocation and diminished responsibility may be raised to get a verdict of voluntary manslaughter. Provocation was a common law defense which has been modified by s.3 of the homicide Act 1957. The two tier questions which must be satisfied have a subjective as well as an objective element. First it must be found that did the defendant, as a result of provocation, lose his or her self control (subjective element) and would a reasonable man have done as the defendant did (Objective Element). The elements are decided upon by the jury. (Smith & Hogan, 11th Edition) The subjective question is purely a matter of fact and requires a sudden and temporary loss of control along with cumulative provocation and that the loss of self control must be as a result of provocation. There must be a loss of self control as a result of the provocation and so the defence will not be available where it is found that it was a calculated revenge. The classic formulation can be found in Duffy [1949] where it was stated that the sudden and temporary loss of self control made the defendant at that moment not master of his mind. However in Richens it was stated that the defendant only required proof that he was unable to restrain himself from committing the act. The longer the time interval the higher the chance of failure of the defence of provocation [Thornton (No.2)1996 per Lord Taylor] and this was confirmed in R v Ahluwalia(Lexis Nexis). Further in Acott [1997] 1 All ER 706 D it was stated that loss of self control must not be an act of revenge but an uncontrollable reation to provoking conduct.(Ashworth, Principles of criminal law, 2006). The second limb requires an analysis of the reasonable man and the attribution of characteristics of the defendant to the reasonable man (Smith). There has been conflicting case law and it has been said that characteristics of defendant should not be attributed to the reasonable man (Luc thiet Thuan). By looking at the facts the defence of provocation can be raised to reduce liability from murder to Voluntary manslaughter. However the duration of 10 minutes might negate the defence of provocation. If however the duration is not foreseen as affecting the provocation, it can be argued by Seema that the act of Derek provoked her. Further the defence of bettered women syndrome as it has been clearly stated(Law Commission Report) that women take more time to react when their husband has been continuously beating them, and so it could have been raised, but this has been a failure in the House of Lords (Fletcher, 1998). The defence of diminished responsibility which is a statutory defence, remains a possibility and will be discussed. The defence is given under s.2(1) of Homicide Act 1957. The defendant must prove diminished responsibility on balance of probabilities. The defence of diminished responsibility reduces liability of mentally disordered defendants from murder to manslaughter and thereby giving discretionary powers to judge on sentencing. However the defence has had little success. Medical evidence can be provided for, but it is eventually the jury who decides upon the matter. (Clarkson, Keating & Cunningham, 2007) The defence requires proving that the defendant was suffering from an abnormality of min resulting from a condition of retarded development of mind or be induced by injury or disease that substantially impaired his responsibility for the killing. Seema can raise the defence of diminished responsibility by arguing that she is a victim of personality disorder, which is a recognized illness and that she was substantially impaired. However the time duration may be a vitiating factor, but it is entirely up to the jury to grant the defence or not. A successful plea would lead to a conviction under manslaughter. Moving on, Seema can point out that the chain of causation, which will now be discussed, was broken and the medical negligence of Dr. Wisdom led to the death of Derek. The chain of causation deals with the issues of actus reus, proving that the defendant caused the actus reus. The first part of the chain is "Would the harm have occurred but for the defendant's act"(Rv. Dalloway). Further was it the operating and substantial cause of the defendant's act( Rv. Hallet).(Ashworth, 2006) It can be clearly stated that the problem lies with the second limb, whereby there has been medical negligence. In medical treatment cases, it must be seen that the doctor's act was so thoroughly bad that it might well have affected the victim's chances of recovery or in other words only if it can be said that the original wound was merely a setting in which another cause operates. (Rv. Smith)(Simester and Sullivan, 2003)If the chain is broken then Seema would not be liable for any harm caused due to independent medical act, but would still continue to be liable for harm leading up to the medical intervention. If the chain is not broken Seema would continue to be liable fully for the harm caused to Derek, even though the doctor has been negligent. It has been seen that the courts have been reluctant to break the chain of causation due to medical negligence, and have very rarely found doctors to be liable for negligent acts (R v. Cheshire). Thus it would be difficult for the chain of causation to be broken for Seema. Finally the issue of Arun, who mistakenly pushes Dr. Ali thinking that it is Dr. Wisdom will be considered. The doctrine of transferred malice will apply, whereby the intention remains the same but the person is mistaken. The push would have generally been held to have been assault under s.47 of Offences Against Person Act 1861, which requires causing to the victim actual bodily harm through assault battery, as actus reus and for mens rea it states that either there must be an intention to cause apprehension of, or to actually inflict , immediate unlawful personal violence; or being subjectively reckless that such apprehension may be caused or such violence may be inflicted. However since Dr. Ali has died the possible criminal liability can be raised Unlawful and Dangerous act Manslaughter, which states that the death must have been caused while committing an unlawful and dangerous act. The actus reus is causing death through such act and the mens rea is simply the mens rea of unlawful and dangerous act. Unlawful means any criminal act and dangerous is any act which is capable of leading to some harm (objective). (Smith, Hogan & Ormerod, 2005) Thus it can be said that Arun committed an assault or battery or s.47 offence by pushing Dr. Ali which proves the act along with the mens rea, so he would be held liable under the Unlawful and dangerous act manslaughter. Bibliography: Smith, J. C., Hogan, B., & Ormerod, D. C. (2006). Smith & Hogan criminal law: cases and materials. Oxford: Oxford University Press. Smith, J. C., & Hogan, B. (1983). Criminal law. London: Butterworths. Ormerod, D. C., Smith, J. C., & Hogan, B. (2005). Smith & Hogan criminal law. Oxford: Oxford University Press. Acott. (1997). Homicide. The Criminal Law Review. (JUL), 514. Ashworth, A. (2006). Principles of criminal law. Oxford: Oxford University Press. Great Britain. (1957). Homicide act 1957 5 & 6 Eliz. 2 ch. 11. London: H.M.S.O. Koenig, D. M. (2007). An introduction to criminal law: cases, explanations and questions. St. Paul, MN: Thomson West. Fletcher, George P. (1998). Basic Concepts of Criminal Law. Oxford University Press. Fletcher, George P. (2000). Rethinking Criminal Law. Oxford University Press. Clarkson, C. M. V., Keating, H. M., & Cunningham, S. R. (2007). Clarkson and Keating criminal law: text and materials. London: Sweet & Maxwell. Simester, A. P., & Sullivan, G. R. (2003). Criminal law: theory and doctrine. Oxford: Hart Pub. Smith, J. C., Hogan, B., & Ormerod, D. C. (2005). Criminal law. Oxford [u.a.]: Oxford Univ. Press. Read More