Law on Homicide Analysis - Coursework Example

Criminal Law The issue in this question requires an analysis on the law on homicide as well as parties to crime that is aiding, abetting, procuring and counselling. The actus reus and mens rea for each of the elements would be discussed along with the defences. It is important to mention that for any offence to be proved it must be proved beyond reasonable doubt and the burden of proof is on the prosecution. Another important point that needs to be raised is that the actus reus and mens rea of the offence must coincide, however a broad approach int his respect has been adopted by the courts. The first point of homicide is murder. The actus reus of mens rea was provided by Sir Edward Coke in the seventeenth century whereby he stated that the act is committed if the defendant ‘unlawfully killeth any reasonable creature in rerum natura under the Queen’s peace’. The definition of unlawfully does not include the killing of for example the use of reasonable force for self defence (Re a (Children)1. Clearly it can be seen that due to the substance overdose the child had died and therefore this is unlawful. As far as killeth is concerned that refers to the requirement that the acts of the defendant can be attributed to be a legal cause of death. Clearly the acts/omission of Thomas to inform his wife of the correct proportion had led to the death of the child. As far as killing of the reasonable creature in rerum natura is concerned it means that a human life is taken. Clearly this is satisfied as the child has died. Finally Queen’s peace means that it must have been within England and not the killing of an enemy at war. This can be seen to have been proved on the facts, as the child died in England.. Therefore on the facts the actus reus of murder has been satisfied. The next element is that of mens rea of murder which has been termed as ‘malice aforethought’. However, to be precise the mens rea is the intention to kill or cause grievous bodily harm (Moloney)2 Intention discussed in Woollin and applied by Matthwes and Alleyne3 was described as defendants aim or purpose was to kill or cause grievous bodily harm or he know of such harm as being a virtually certain consequence of such an act, and any level below that of virtual certainty would not suffice. On the facts it is more than evident that Thomas clearly did not possess the intention nor was he virtually certain as the consequence. Thus it is quite clear that the mens rea for murder is not satisfied. As far as voluntary manslaughter is concerned it is not relevant to the facts at hand as there was neither provocation or was there any diminished responsibility. Thus voluntary manslaughter in respect of the facts will not be argued. The next step is that of involuntary manslaughter. The first manslaughter that would be considered is that of reckless manslaughter. The change brought about by Moloney means that for manslaughter recklessness will suffice. However, on the facts it can be said that Thomas was not subjectively reckless as from the facts he was not aware of the result of the failure and furthermore he did not remember the exact amount and thus it can be seen that he did not foresaw the consequences of the said action. The next in line is gross negligence manslaughter which requires proof of a high degree of negligence. The approach can be seen from Lord Atkin’s judgment in Andrews v. DPP4 where he stated ‘[In the older cases] expressions will be found which indicate that to cause death by any lack of due care will amount to manslaughter, but as manner softened and the law became more humane, a narrower criterion appeared’. There have been difficulties which the courts have found in respect of allowing the juries to ascertain the level of negligence that would be required and this was pointed out by Lord Hewart LCJ in Bateman5 in which he stated that the negligence should be a step higher than the compensation phase and the defendant should have disregarded life and safety of other and such conduct deserves punishment. In Adomako 6 the House of Lords stated that having regard to the risk of death involved the action of the defendant were so daft in the circumstances so as to make him liable for his act or omission. Lord Mackay in the current situation pointed out on how directions should be given to the jury. It ws further established that the question of duty owed by defendant to the deceased would be determined by the jury after taking into account the evidence that was provided. (Rose LJ in Willoughby)7. Thus the first element is that of establishment of a duty of care. The second requisite element is that there must be breach which must amount to gross negligence. In Attorney General’s reference (No. 2 of 1999) it was stated that there was no need the fact that the defendant foresaw a risk of death. The final requirement is that the breach caused the death. In respect of the current situation it can be said that there was clear duty of care that Thomas owed to the children as well as the family members as they used his product that is water. The next element is that of breach, clearly the incorrect instructions were a breach, however gross negligence is a point for jury to be decided upon. Taking into account the facts of the case it can be said that Thomas was aware of the fact that if there was any negligence that was committed as a result of incorrect apportionment of the ingredients of the purifier in the water, then there would be a problem and he in order to avoid any such problems had always undertaken this task. As per the Attorney General there clearly does not need to be knowledge, that death would occur and therefore it can be said that Thomas did have knowledge of the fact that if such negligence was present there would be a possibility of a harm that would. Thus on that basis it can be argued that the instructions that he negligently gave to his wife did indeed constitute gross negligence on his part and so there was clear cut breach in that respect. The final point in respect of such manslaughter is the ascertainment on how the death occurred. From the facts it is evident that the death of the child occurred as a result of the negligence that was committed by Thomas. Thus on the facts there is a strong possibility of gross negligence manslaughter being satisfied. However, if the jury does find for Thomas and thinks that the inaction or negligence that has been committed by Thomas was breach but not gross negligence that there cannot be liability under gross negligence manslaughter and thus the law on unlawful and dangerous act manslaughter is now being discussed. The liability in respect of unlawful and dangerous act manslaughter is found where an unlawful act was committed by the defendant and this can be casually attributed to the death. However, it is pertinent to mention that the courts in Franklin8 did find that a civil wrong would be insufficient and furthermore in Andrews9, the House of Lords stated that an offence which is based upon negligence would not constitute as an unlawful act fo the purpose of constructive manslaughter. As far as dangerousness is concerned the courts in Church10 in particular Lord Edumnd-Davies stated that an unlawful act would be dangerous if ‘all sober and reasonable people’ that the unlawful act led the victim to the risk of some harm, but not necessarily serious harm. It is important to mention that this test is objective and so there is no requirement of proving that the defendant knew the fact that his conduct carried the risk of harm (Lipman)11. However, this test was reformed in Dawson, but then the case of Dawson has been distinguished as well as applied in subsequent cases. Finally it is important to establish that the unlawful act was the cause of the death. In respect of the current scenario it can be seen that one of the main point that can be raised by Thomas is that since his act was negligence it cannot be constituted as unlawful adn therefore he cannot be tried of unlawful and dangerous act manslaughter. Thus even though if the other element of the offence are proved, the fact that negligence is present as in the negligence to properly put the amount that was required to purify, unlawful and dangerous act manslaughter cannot be claimed. Therefore any claim that has be made out against Thomas in respect of the scenario at hand would be that of gross negligence manslaughter, whereby it must be shown to the jury that Thomas was grossly negligent in his conduct and the fact that because of such negligence the child died. The issue in respect of the liability is that there is an element of causation which is present in the current situation. It can be argued by Thomas that the doctor had advised the family of Mr and Mrs Hickman that there had been problem with the water. Thus in the current situation even if liability is not extinguished it can be said that the defence would be taken into account when determining the amount of liability that is to be attributed to Thomas, it can also be possible that liability of Thomas is only restricted till the point the Hickmans’ were informed of such water. As far as the liability of Thomas’ wife is concerned she would be covered under the principles of parties to crime. This is what is known as secondary liability. The actus reus for aiding, abetting, counselling or procuring may be an act or omission. As for aiding any sort of assistance that has been provided which is given prior to the commission of offence will suffice. (Bryce)12. Abetting and counselling would not be relevant to our case as both tend to include inciting or encouragement, clearly this was not the case in the situation at hand and will therefore not be discussed in detail. Procuring has been defined in Attorney General’s Reference (No.1 of 1975)13 as ‘ to produce by endeavour. Your procure a thing by setting out to see that it happens and taking the appropriate steps to produce that happening’. Furthermore even if it is found that the principal had a lack of mens rea or had defence available there might be secondary liability on the accomplice. The mens rea requires intention of assistance, encouragement or procuring or that the secondary person foresaw the commission of the offence, that is he foresaw that the principal was committing an offence. In the current situation the mens rea for Thomas’ wife would be impossible to establish and therefore she would clearly not be held liable even though Thomas himself might be held liable for the gross negligence manslaughter. The reason for such being that on the fact it is quite clear the assistance that was provided for by his wife clearly was not for the commission of an offence nor did she have any requisite intention nor foreseeability of any such offence being committed thus in order to preserve the interests of justice and to hold the person who was involved would be held accountable and therefore liability if accrues would only do so on Thomas. 2. The issue in this question relates to possible criminal liability of Strout in respect of the act of stepping on the toes of Roberts and breaking of his toes. The liabilities of Strout would be discussed and if the need arises the defences would be discussed. The starting point for criminal law is Article 6(2) ECHR which states that “Everyone shall be presumed innocent until proved guilty according to the law”. Thus there is clear presumption in criminal law that a person would be thought of as innocent and unless a case of satisfying the courts beyond reasonable doubt of criminal liability is proved by the prosecution, the accused would be rendered innocent and the presumption of innocence would be retained. Thus in the current scenario unless a case beyond reasonable doubt is made Strout would be considered as innocent. As far as the burden of proof is concerned, such burden lies on the prosecution who in turn has to prove beyond all reasonable doubt including but not limited to satisfaction of the jury of the guilt of the defendant. (Woolmington v. DPP)14 The main elements that required to be proved in criminal law or be specific a criminal offence are actus reus (the action of the accused), mens rea (the requisite intention for the commission of the offence) and the absence of any defence or if any defence is raised it is negated to the satisfaction of the court. (Lord Diplock in R v Miller)15 Another element that needs to be taken into account is that the actus reus and mens rea of the criminal offence that was committed need to coincide, however it is pertinent to mention that such requirement has been interpreted broadly by the courts. (Fagan v. Commissioner of Police16) The courts have at times; in certain circumstances found that omissions can count as sufficient actus reus but the overall facts of the matter are taken into account and other factors too so such to find that the omission did constitute as actus reus..One of the situations of omission whereby actus reus is found to be constituted is where the conduct of the defendant created a situation of danger. (R v. Miller)17 The actus reus of an offence is generally satisfied when a positive act is committed. It has often been required that that has been committed must be voluntary, this can be seen from what Lord Denning said 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 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...’ (Bratty v Attorney General for Northern Ireland)18. Thus the act of the defendant must therefore be voluntary and a wilful movement of body. In the current scenario it can be seen that the act of Strout of going towards the bus was a voluntary action and therefore the actus reus can be established. However, a contrary argument can be that the act of going towards the bus was not for committing the specified act of breaking of toes. However, the actus reus can be said to have been satisfied by the facts of the current situation at hand. The next issue that needs to be looked into is the causation test, the first element of which is the factual causation that is the ‘sine qua non’ or ‘but for’ test which means would the act have occurred but for the actions of the defendant (Carey)19. In the case of Strout the answer would be yes. In addition to factual causation the element of factual causation is also looked into which requires looking into the fact as to whether the act of the defendant was the substantial and operating cause but not necessarily the only cause (Smith)20 and that that the result was a logical consequence of such an act and therefore the result that has been caused must be attributable to the defendant (Dalloway)21. In the current situation this was so. One of the main argument that can be raised by Strout as a defence in respect of the act is that the act if it had been committed on anyone else would not have led to so much of damage that is breaking of toes. However, the principle that has been developed the courts is that the defendant must take the victim as he finds him and this principle was clearly illustrated in the case of Blause22. Thus Strout cannot rely on this defence. The courts do take into account other intervening cause but in the current situation there are no such intervening causes which can be said to break the chain of causation. Clearly there are no other elements which would break the chain of causation. Thus the actus reus can be wholly and solely contributed to Strout. The next element is mens rea which is concerned with the state of mind of the defendant. There had been cases which were decided upon by the courts in which the criteria were set up whereby the mens rea for a criminal act would be established. The cases that were decided upon took into account intention, subjective recklessness, objective recklessness, lacuna etc. Mens cannot be said to be wickedness by way of any moral or general sense (Dodman)23. Furthermore even if it is proved to the court that the motive behind the criminal act was good, it cannot be relied upon as a defence (Chiu-Chang v. R)24. For proving the mens rea intention and subjective recklessness can be said to be sufficient. Intention can be said to be that the defendant had intended the act or it was oblique intent whereby the defendant’s purpose was achieve the desired prohibited result. The starting point of cases for intention was the case of Hyam25 and DPP v Smith26. These cases were criticised for creating uncertainty and were reformed in the case of Moloney27 where the courts laid down the two questions that were to be put before the jury when deciding upon the intention mof the defendant. The current situation in respect of the test is that of Woollin28 and R v. G. And this has been reached after considerable refining of the original test for intention. Thus the test for direct intent is the that the defendant had intended a result by committing the particular act; and for oblique intent is that the result may have been that the result was a virtually certain consequence of the act. In the current scenario it can be seen that there was no direct intention of Strout. As far as oblique intent and the virtual certainty test is concerned it can be said that the jury on the facts that have been given would easily deduce that oblique intent was not present in the current scenario as the virual consequence test would not be easily fulfilled. The next element whereby mens rea can be proved is that of recklessness. There is certain offence for which recklessness may be sufficient and this includess.20 and 47 of the Offences against the Persons Act 1861 or for common assault and battery. The test for subjective recklessness as established in Cunningham29 was that a person is said to be reckless where he knowing commits the act even though he knows that there is a risk that such a consequence may result from his act/conduct. This test was extended by the House of Lords in the case of Caldwell30 whereby objective recklessness was included as well. However, after much criticisms the case of Caldwell was reversed in the decision of the House of Lords in R v. G31. Thus the current test is that of subjective recklessness. In the current situation the main problem that lies is in respect of the mens rea of the particular act of breaking toes that has been committed. There can be arguments that Strout even though did not have the intention, must have been reckless as to his act of rushing. However, by the facts that have been provided it can said that there is not much possibility for a criminal liability arising as the recklessness would not be proved, as Strout did not think about the consequences and therefore the coinciding of mens rea and actus reus is not present and so Strout would not be held liable. References Ormerod, D C, J C. Smith, and Brian Hogan. Smith and Hogan Criminal Law. Oxford: Oxford University Press, 2008. Print Read More