Law of Murder and Manslaughter - Case Study Example

The factual scenario raises complex issues as to liability under the law of murder and manslaughter. In particular, the issue arises as to who in fact is liable and if liability can be established under criminal law, whether any defences are available under the circumstances. 1. Zeb’s Liability for Aisha’s death. Zeb could potentially be liable for murder or manslaughter under the law of homicide. The classic definition of murder under English Law was propounded by Sir Edward Coke1, asserting the two stage definition requiring actus reus and mens rea: “Murder is when a man, unlawfully kills within any country of the realm any reasonable human being under the Queen’s peace, with malice aforethought”2. If we consider the first requirement of actus reus, it must be established that Zeb committed an unlawful act which caused Aisha’s death. Both factual and legal causation of death must be established. The factual test applicable is the “but for” principle established in the case of White3. In line with this test, Zeb will be criminally liable if his conduct was the factual cause of Aisha’s death and the consequence of death would not have happened “but for” Zeb’s conduct4. If we apply the “but for test” to the current situation, Aisha would not have died if had not been for Zeb’s actions and therefore under the “but for test”, it is more than likely that Aisha’s conduct will have satisfied the requirement of factual cause of death. In addition to the requirement of actus reus, it must be established that Zeb had the requisite mens rea to be criminally liable for murder5. The implementation of the Homicide Act 19576 further reinforced by the decision in R v Vickers7 which established that the requirement of mens rea is not restricted to an intention to kill and that an intention to cause grievous bodily harm will also suffice and constitute malice aforethought8. It is evident from the factual scenario that Zeb clearly did not have an intention to kill Aisha however he could still be liable for murder on grounds of having oblique intention9. Oblique intention occurs where the defendant does not desire the consequence and his aim is something else, however his actions have the effect of making the consequence happen10. Moreover, in the case of Hyam v DPP11 it was held that for oblique intention it had to be established that the consequence was highly probable. Lord Diplock held that: “One who does an act knowing full well of the consequence, although it was not the object he was seeking to achieve, implies a state of willingness to produce the particular consequence and is in my view intent”12. However, Lord Hailsham distinguished this in Hyam and added that oblique intention was applicable where a defendant “deliberately exposed a victim to serious risk of death13”. Therefore, where the defendant’s conduct creates a risk of death as opposed to foreseeing death, they will have oblique intention for murder. If we apply this to the current scenario, Zeb was aware that Aisha was having difficulty breathing. Therefore, whilst he may not have subjectively foreseen the risk of death; by continuing to put another sock in Aisha’s mouth and failing to stop, he clearly created a risk of death and injury and therefore may have oblique intention for the purpose of criminal liability for murder14. Moreover, the House of Lords decision in R v Moloney15, set out the following factors to be taken into account when determining whether a defendant has the necessary intent: 1) Whether the death or really serious injury was a natural consequence of the accused’s voluntary act; and 2) Whether the accused foresaw that it would be a natural consequence of his act16. The House of Lords asserted that if the above two stage test could be answered in the affirmative, there would be a presumption that the defendant intended the consequence and therefore had the necessary mens rea required for the offence17. Additionally, in the case of R v Hancock v Shankland18, it was asserted that the probability of the consequence occurring is important in deciding if there is evidence from which to infer intention. This was further clarified in the case of R v Nedrick 19where Lord Lane asserted: “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 (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant appreciated that such was the case.20” This was again reiterated in the case of R v Woolin21, where it was asserted that there must have been an intention on the defendant’s part to bring about the series of events and that it was foreseeable that such conduct could cause death. Again, if we apply these principles by analogy to the current scenario, it is highly probable that circumstances satisfy the requirement that serious injury was a natural consequence of his conduct and that he foresaw that this was the case. Alternatively, if Zeb’s mens rea is not considered sufficient for liability in murder, he could be liable for manslaughter on grounds of recklessness or unlawful act manslaughter. If we firstly consider manslaughter, recklessness is an alternative fault element for manslaughter offence and covers criminal liability for taking “unjustified” risks22. However, the law relating to liability on grounds of recklessness distinguished between subjective and objective recklessness and varies according to different offences23. Subjective recklessness was established in R v Cunningham24, where the defendant was charged with the offence of administering a noxious thing as to endanger life. It was determined that the word “maliciously” meant either an actual intention to do that particular type of harm that was in fact done, or recklessness in the sense that the defendant when acting realised there was some risk of harm occurring, but undertook the dangerous act notwithstanding. The second was subjective recklessness, which required the defendant to have foreseen the risk himself. However, in the case of R v Parker25 it was held that where the accused “closed his mind to the obvious26” he could still be reckless. With regard to Zeb’s state of mind, he was aware of Aisha having difficulties breathing, however in desperation to be part of Sock Soc and being encouraged he decided to take the risk of putting in just one more sock before stopping. On the one hand, this arguably begs the question as to whether he really appreciated the risk of harm occurring or even foresaw the risk in the Cunningham sense. Alternatively, in line with the Parker rationale27 Zeb appears to have clearly “closed his mind to the obvious” and it is submitted that on the facts this is likely to satisfy the test of recklessness for manslaughter. Additionally, the test for objective recklessness was set out in the case of R v Caldwell28, where it was determined that a defendant could still be criminally liable even if he had not appreciated the risk but “an ordinary prudent individual” would have realised the risk. The issue was ultimately up to the jury to determine upon the facts of the case. Moreover, objective recklessness requires a risk that must be obvious to the reasonable man and need not be obvious to the defendant himself29. Again, if we apply these principles to Zeb’s legal position, there appear to be sufficient grounds to argue that he failed to appreciate the risk that “an ordinary prudent individual would30”. As such, Zeb appears to have been both subjectively and objectively reckless for manslaughter liability. Alternatively, there are strong grounds to indicate that Zeb will be potentially liable for unlawful act manslaughter. In order to be liable for unlawful act manslaughter, the following must be established: 1) The accused must cause the death of another; AND 2) The killing occurred in the course of the accused’s unlawful act; AND 3) The unlawful act must have been dangerous31. In the case of Andrews v DPP32, Lord Atkin argued that there is an obvious difference in the law of manslaughter between doing an unlawful act and doing a lawful act with such a degree of carelessness which the legislature makes criminal33. As such, the act must be unlawful and satisfy the requirement of being dangerous34. For example, in the case of Larkin35, the Court of Appeal held that: “where the act which the person is engaged in performing is unlawful, then if at the same time, it is a dangerous act, that is an act which is likely to injure another person and, quite inadvertently, he causes the death of that other persona by that act, then he is guilty of manslaughter”36. This was further confirmed in the case of R v Church37. As such, in unlawful act manslaughter cases, the test is objective. This was further highlighted by the House of Lords’ decision in DPP v Newbury38. The House of Lords reiterated the Church test of what was dangerous was ultimately an objective test not related to the accused’s state of mind. However, the difficulty in current scenario is the fact that Aisha was willingly taking part in the initiation process and this raises the issue as to whether or not she consented and that the initiation activity falls within the “horseplay” exception developed in cases considering consent39. The concept of consent as a valid defence to physical harm in assault cases has proved problematic to apply in practice. In general terms, consent can never be a defence to homicide and is only available in non-fatal offences against the person, including assault, battery and rape40. Accordingly, in the current scenario as Zeb is facing potential liability for murder or manslaughter the defence of consent will not be available. Moreover, it is further likely that on the Church objective test, Zebs conduct of stuffing the socks in Aisha’s mouth is likely to be considered a dangerous act to satisfy the requirements of unlawful act manslaughter. In summary, Zeb is highly likely to have satisfied the legal test for causation of Aisha’s death and may be liable for murder on grounds of oblique intention mens rea. Alternatively, he will be liable for manslaughter on grounds of recklessness or unlawful act manslaughter. 2. Reena’s Liability for Bob’s Burns. On the basis of the factual scenario, Reena would prima facie appear to be liable for assault. However, as Bob wanted to join Sock Soc and willingly took part in the initiation ceremony and was aware that he would be required to dodge flaming socks, Reena may well have a defence to criminal liability on grounds of valid consent. The central premise of the defence of consent was extrapolated by Lord Lane in Attorney General’s reference (No 6 of 1980)41 where he asserted that valid consent vitiated criminal liability. Moreover, Lord Lane named the following situations as those where consent could potentially constitute a valid defence: “properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference and exhibitions42”. Moreover, the general rule in assault cases is that subject to limited exceptions, consent to bodily harm will be irrelevant and will not negate criminal liability for an offence, if actual bodily harm was intended43. This was further supported by the Court of Appeal decision in AG’s reference (No 6 of 1980)44. However, the situations in which consent will provide a defence to criminal liability have perpetuated legal uncertainty and appear to be rooted in public policy considerations45. However, it is precisely what constitutes “valid” consent that has proved problematic in practice and it appears that the courts have created variances in the applicability of consent as a defence through categorisation. The courts have adopted another category where consent can operate as a valid defence and has arguably provided the most controversial. For example, in R v Jones46 the defendant was a schoolboy and had been playing when he threw the victim in the air, who then fell and suffered from a broken arm and damaged spleen. Notwithstanding, the courts permitted the defence of consent on grounds of the victim consenting to rough horseplay. Similarly, in the case of R v Aitken47the defendants were in the RAF and had set fire to the victim’s “fire resistant” suit and as a result, the victim suffered severe burns. However, the courts bafflingly felt that this still fell within the definition of horseplay, which has been criticised for defying reason as subjectively it is highly questionable whether the victims in these cases could genuinely have consented to the extent of their injuries. Accordingly, in the current scenario, whilst it is unclear whether Reena’s conduct will fall within the horseplay exception, it is possible that Reena’s liability for assault may fall within the consent exception on grounds of constituting horseplay. If Reena is unable to rely on valid consent as a defence, she will be criminally liable for assault under the Offences Against the Person Act 1861. 3. Carla’s liability for the Barman’s death. In the current scenario, Carla may be criminally liable for murder on grounds of oblique intention or manslaughter on grounds of recklessness or unlawful act manslaughter. However, the main issue of contention for establishing criminal liability will be whether or not Carla’s actions caused the barman’s death due to his pre-existing heart condition. Under the legal causation test, it is not necessary for Carla’s conduct to be the sole cause of death however it must be the substantial cause and have made a significant contribution to the barman’s death48. Ultimately, this is determined according to the facts of each case, however case law has established that the original wound must still be operating and a substantial cause at the time of death49. Moreover, in R v Smith50 it was also asserted that only if “the second cause is so overwhelming as to make the original wound merely part of history can it be said that the death does not flow from the wound51”. This was confirmed in R v Cheshire.52 Therefore if the causation test can be satisfied Carla could potentially be liable for murder or manslaughter. On the basis of the factual scenario it is unlikely that Carla will have sufficient mens rea for murder, however it is possible that she may be liable for manslaughter on the basis of Caldwell recklessness. Alternatively, in pretending to point a gun at the barman, he felt in danger of physical harm, which would constitute assault under the Offences Against the Person Act 1861. As such this would constitute an unlawful act for the purpose of unlawful act manslaughter liability. Bibliography Michael Allen (2009) Textbook on Criminal Law, 10th Edition Oxford University Press. Andrew Ashworth (2009) Principles of Criminal Law. 6th Edition Oxford University Press. C. Elliot & F. Quinn (2008). Criminal Law. 7th Edition Longman Jerome Hall (2005) Principles of Criminal Law, The Lawbook Exchange Limited. Matthew Lipman (2009) Contemporary Criminal Law: Concepts and Controversies. 2nd Edition, Sage Publications David Ormerod (2009). Smith and Hogan Criminal Law: Cases and Materials. 10th Edition Oxford University Press. Legislation & Websites Offences Against the Person Act 1861 available at www.legislation.gov.uk accessed March 2011. Homicide Act 1957 available at www.opsi.gov.uk accessed March 2011 Read More