Murder Analysis - Case Study Example

Gordon decides to go out to the Tank Engine - a local pub. In the pub he stands at the bar but is distracted by Thomas, Annie and Clarabelle, who are celebrating recent exam success. It becomes clear to Gordon that Thomas has some form of disabilty. In fact Thomas suffers from a stammer and also has dyslexia. Later Gordon decides to enter the pub quiz with some other patrons. Thomas, Annie and Clarabelle also form a team and enter. Unfortunately Gordon loses the quiz to the team of students and is very annoyed to have been beaten by Thomas. Outside Gordon sees Thomas laughing with his friends. He walks over to Thomas and proceeds to repeatedly punch, kick ans stamp on him shouting Ill teach you a lesson stupid! Later Thomas dies in hospital of severe head injuries. a) In order to be found guilty of a crime, the prosecution must provr actus reus and mens rea. Briefly explain these two terms. {20 Marks} b) Discuss the criminal liability of Gordon for the offence he has committed against Thomas. {20 Marks} c) Consider whether the current law on Murder is satisfactory and discuss the possible reforms to murder which have been suggested. {40 Marks} The term actus reus refers to the act of the accused which when combined with either intention on the part of the accused or recklessness causes a crime to be committed. The actus reus for an offence will alter depending on the crime committed. On a charge of murder or manslaughter the actus reus for the offence would be the action that led to the death of the victim. The actus reus is therefore the external element of the crime. The actus reus for an offence is fairly easy to distinguish and in the situation above the punching, kicking and stamping on the victim would be the actus reus of the offence. Mens rea translates as the ‘guilty mind’. The mens rea element of the offence is the fault element of the crime. As with the actus reus the mens rea for an offence is also specific to the crime committed. The original definition of the mens rea for murder can be found in Coke’s Institutes1 in which Sir Edward Coke stated that murder is When a man of sound memory and of the age of discretion, unlawfully killeth within any country of the realm any reasonable creature in rerum natura under the Kings Peace, with malice aforethought, so as the party wounded, or hurt…, die of the wound or hurt, … within a year and a day after the same. From the above it can be observed that the mens rea for the offence requires the accused to demonstrate malice aforethought. Changes through legislation2 and case law3 have aided in the modification of the requirement of malice aforethought4 such that the prosecution is now only under a duty to prove that there was an intention to kill5 or to cause serious bodily harm6. Intention is a subjective test reliant on what the jury considers the defendant would have foreseen as a consequence of his actions. There is no consideration of what the defendant should have foreseen7. Intention can be oblique or direct. Oblique intention occurs when the accused did not desire the outcome that has transpired but was aware that the person might be killed as a result of their actions8. By contrast direct intention occurs where the defendant wants to actually kill the victim. Foresight of the end result is often used as evidence to support the assertion that the accused intended to kill their victim9. When examining the above scenario it is likely that Gordon would be charged with murder. In cases where the prosecution is struggling to prove the intention of the accused charges can be reduced to manslaughter10. Manslaughter is usually averred in cases of oblique intent. Similarly defences to manslaughter can have the effect of reducing the charge to manslaughter. Defences usually pleaded in these cases include provocation11 or diminished responsibility12. In some cases the accused has attempted to rely on intoxication as a defence, however, the courts will only allow such a defence were the intoxication is not self inflicted. Defendants have been successful in claiming automatism due to intoxication only in cases were the accused has been able to demonstrate that they were incapable of preventing their intoxication due to the fact that they were alcoholics13. In this particular case it does not state that Gordon had drunk an excessive amount of alcohol, or that he has an alcohol dependency problem, therefore it is unlikely that intoxication would be used as a defence. Gordon might attempt to rely on the defence of provocation, averring that he was provoked by losing the quiz and that when he saw the victim laughing he thought that the victim was laughing at him for losing. Within the scenario there is nothing to suggest that Gordon believed that Thomas was laughing at him. It is unlikely that the courts would accept provocation as there was no direct action of the victim against the accused before Gordon started hitting Thomas. Provocation is defined under s3 of the Homicide Act 1957 as Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or things said or both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury, and in determining that question the jury shall take into account everything both done and said according to the effect which in their opinion it would have on a reasonable man. It can be noted from the above that provocation can be averred from things that have been said by the person who then becomes the subsequent victim of the murder. The burden of proof in establishing provocation is on the defence14 and the courts will require the defence to prove that the accused lost self control as a result of the provocation15. The test for provocation also requires the defence to prove that a reasonable man in the same situation as the accused would react in the came manner16. The court held in R v Davies17 that the conduct of the wife’s lover could be taken into consideration when determining whether the accused had been provoked into taking the actions that he did. In this particular scenario Gordon might be able to prove that he thought Thomas was laughing at him losing the quiz which prompted Gordon to react the way he did. Proving direct intent could be problematic in this case as Gordon only decided to attack Thomas after losing in the quiz. The jury could find difficulty in proving that Gordon intended to kill or seriously harm Thomas, however, it should be easy for a jury to prove manslaughter as it would be obvious to anyone that attacking them in the way he did would be likely to cause them serious injury or death. The present law regarding murder is inadequate as there are only two possible charges for someone who has killed another, these being murder or manslaughter. Murder requires proof of direct intent for a successful prosecution. As mentioned before the test for murder is a subjective test based on what a jury considers the defendant would have foreseen as a consequence of his actions18. This can be problematic as it can be impossible to know what another person would have foreseen. The law Commission has put forward a proposal to reform the law on murder19. In Consultation Paper No 177 issued in 2005 the Law Commission discussed a new homicide act for England and Wales. According to their report the present law on homicide is in desperate need of reform stating that some of the rules have been unaltered since the 17th century. The Commission also criticises the uncertain content of much of the Act. The present system insists on a mandatory life sentence for those found guilty of murder. The Law Commission argue this is archaic and that in many cases the offender poses no serious risk to others and therefore the sentence awarded should reflect the likelihood of re-offending. The proposals made by the law commission suggested that murder should be divided into first degree murder and second degree murder and a separate charge for manslaughter be included in the revised Act. Within the realm of second degree murder the Commission recommended that the reforms should include degrees of fault. It was felt that the more serious incidents of reckless killing ought to be included in the new charge of second degree murder. The proposals made by the Commission were that there should be a clearer definition of murder and that partial defences that can be considered should be included within the reformed Act. These partial defences should include duress in the opinion of the Commission, given that there are occasions when a defendant might be forced to commit a crime due to threats against themselves or their families. The Commission recommended what they classed as the ‘ladder’ principle for determining the charges against an accused. This ladder system would reflect the seriousness of the offence and take into account mitigating and aggravating features of the offence. Under the proposal first degree murder would still carry the mandatory life sentence, however, second degree murder would have a discretionary life sentence as the maximum sentence20. If the reforms had been enacted before Gordon killed Thomas it is possible that he might only have been charged with second degree murder. However, there is a possibility that he would have been charged with first degree murder, given that the attack was unprovoked. It could also be argued that the attack was connected to the disability of Thomas which might suggest that Gordon has some form of prejudice against handicapped people. If this could be motive of Gordon could be regarded as an aggravating factor for the attack, which would increase the possibility of a more severe charge being brought against Gordon. Bibliography Allen, C, Practical Guide to Evidence, 2nd Ed, 2001, Cavendish Publishing Ashworth, A and Blake, M The presumption of innocence in English law [1996] Crim LR 306 Cook, K, James, M, and Lee, R, Core Statutes on Criminal Law, 2006-2007, Law Matters Elliott, C & Quinn, F, Criminal Law, 3rd Ed, 2000, Pearson Education Glanville Williams, Textbook of Criminal Law (2nd ed 1983), London: Stevens & Sons Herring, J, Criminal Law, 4th Ed, 2005, Palgrave Macmillan Law Masters Law Commission, ‘Partial Defences to Murder’, Law Com No 290, Cm 6301 (2004), TSO, London Mackay & Mitchell, ‘But is this Provocation? Some Thoughts on the Law Commission’s Report on Partial Defences to Murder’, [2005] Crim LR 44 Murphy, P, Blackstone’s Criminal Practice, 2002, Oxford University Press Publishing Reuber, M & Mackay, D, Epileptic automatisms in the criminal courts: 13 cases tried in England and Wales between 1975 and 2001, Epilepsia, 49(1): 138- 145, 2008 Smith. 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