Criminal Liability - Assignment Example

Criminal Liability Murder The necessary mens rea to establish murder charges is not straightforward in this case particularly with respect to the likely defences of necessity, duress and causation available to Robert and Stuart. The classic definition of murder offered by Sir Edward Coke is a good starting point. Coke defined murder as requiring soundness of mind, “the age of discretion” and “malice aforethought” .1 Common law developments have narrowly defined the concept of intention with respect to murder and the proper test is set forth by Lane J in R v Nedrick and is as follows: “…where the charge is murder and the simple direction is not enough, the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty as a result of the defendants actions, and that the defendant appreciated that such was the case.”2 Based on this ruling there is little chance that Robert and/Stuart can argue that neither had the necessary intention to cause Terry’s death. The dialogue between them prior to cutting Terry loose strongly suggest that each of them knew that by cutting Terry loose death or serious bodily harm was a virtual certainty. Causation In order for a charge of murder to be substantiated against Robert and Stuart it is not necessary for the Crown to prove that the defendants’ conduct was the only and main cause of death. Although there was an intervening cause, namely; the negligence of the rescue crew that ultimately caused Terry’s death, he would not have been exposed to hyperthermia had it not been for Robert and Stuart’s conduct in the first place. Even if it can be shown that Terry had suffered from some medical condition that made him particularly vulnerable to hyperthermia, this would not discharge Stuart and Robert’s responsibility under the “thin skull rule” which mandates that you take your victims as you find them.3 In R v Dear4 the court ruled that the question was whether or not the injuries caused by the defendant’s conduct was the significant cause of death or significantly contributed to the death of the victim. On the facts of the case for discussion, Robert and Stuart’s conduct not only significantly contributed to Terry’s death but was a significant cause. Therefore it is unlikely that causation would be of any assistance to either one of them as a defence. Necessity The defence of necessity was used in the early case of R v Dudly and Stephens5. In this case four persons had become shipwrecked and remained out to sea aboard a small vessel without food and other necessary provision. In order to save themselves, the three strongest decided that it was necessary to eat the fourth and weakest among them. The court ruled that cannibalism was not of urgent necessity, and although the victim’s death was a virtual certainty, the others had committed a deliberate act of murder. Although there was at least some degree of necessity as a result of the exposure to the open sea and the risk of death by starvation, this was offset by the fact that there was also a chance that a ship could have come upon the stranded sailors and saved them all. 6 However, this case can be distinguished from the facts of the case for discussion in that Robert was unable to sustain the weight of both Terry and Stuart and had he not cut one of them lose, at least one of them, if not all would have fallen. Some degree of spontaneity is required and there cannot be other options for relief. 7 Robert and Stuart both acted out of an urgent necessity. Duress A duress defence is available when the defendant can prove that the threat functioned to zap his will.8 Stuart must therefore demonstrate that there was an immediate link between the threat and his conduct. Of this there is little doubt. Robert threatened to cut Stuart loose together with Terry unless Stuart cut Terry lose himself. Stuart must also prove that in the circumstances there were no other reasonable opportunities for him to seek alternative relief. In other words the decision to take such action must be influenced by immediacy. Immediacy was loosely defined in the case of R v Hudson9. In this case, two women witnessed an assault and claiming to have been intimidated did not testify at the trial. The court ruled that leniency was appropriate in this case since the women lived in a neighbourhood where there were usually physical retaliation against those who assisted police officers and having regard to their respective ages, lack of physical prowess it was reasonable for them to give in to the tacit threat of harm.10 In R v Cole11, a man threatened by a debt collector, robbed several building societies to relieve himself of debts. Simon Brown LJ ruled that the threat giving rise to criminal conduct must be immient with no other reasonable alternatives for relief. Moreover there was no direct link between the threat and the offence committed since the debt collector had not compelled the offence.12 Robert compelled the offence ultimately committed by Stuart. He left Stuart with a choice of the lesser of two evils. He could either cut Terry loose or he can be cut loose together with Terry. In either scenario, Stuart would not have been able to save Terry and with his own life at immediate risk, he had no choice he if wished to save himself. Stuart’s defence of duress is very likely to succeed. Not only does it meet the critia of nexus and immediacy it also meets the proportionality test set in Howe13. The test requires that the tribunal of fact consider two questions: 1. Did the defendant sincerely believe that he was in immediate danger of death? 2. Would a resonable man with the defendant’s specific character traits have responded as the defendant did to the threats?14 Robert’s threat together with the dangerous conditions of the Welsh mountains would give rise to an assumption that a reasonable man in Stuart’s position would have acted as he did. Aiding and Abetting Aiding and abetting, is a statutory offence codified by Section 65(4) of the Criminal Law Act 1977. The relevant section provides that aiding, abetting, counselling or procuring a an indictable offence will carry the same liability as that of the principle offender.15 In the AG’s Reference (No. 1 of 1975)16, Widgery CJ held that the word aid as it appears in the Act would refer to rendering support, assistance and help.17 It is conceivable that Robert may be charged with aiding and abetting Stuart as a separate offence. In all likelihood however, it seems likely that both Stuart and Robert will not have to answer murder charges and may be excused altogether. Bibliography Accessories And Abettors Act 1861 AG’s Reference (No. 1 of 1975) [1975] QB 773 Attorney General’s Reference No. 3 of 1994. (HL) http://www.number7.demon.co.uk/hol/frames/01/44.htm Viewed November 26, 2008 Criminal Law Act 1977 Howe [1987] AC 417 R v Cole [1994] Crim LR 582 R v Dear [1996] Crim LR 595 R v Hayward (1908) 21 Cox CC 692 R v Hudson [1971] 2 QB 202 R v Nedrick (1986) 1 WLR 1025 R v Singh [1973] 1 All ER 122. Read More