Criminal Law and Procedure

Introduction

This assignment aims to consider the criminal liabilities of both Mr Stevens and Mr Edwards in regards to an incident that occurred on Monday 4th of October 2010 where a death of a man namely Mr Noname occurred.

I aim to use a detailed analysis of the laws involved whilst furthering my research with additional evidence to support the analysis.  I also aim to evaluate the key legal principles with the application of case study.

I also aim to finalise this assignment with a reasoned conclusion and support this with the evidence.

What is a Crime?

A crime is defined as a criminal wrong doing whether by omission or commission which is forbidden by the state, therefore resulting in punishment.

Society lays down what we can and cannot do.  When we choose to go against the general interests of society this is known as wrongful conduct.  We are all morally taught and when we choose to go against this it is also known as a wrongful doing.

There are many types of behaviour that we may deem as anti-social such as passive smoking or even wearing to much perfume or aftershave on public transport.  However this kind of anti-social behaviour would not be deemed as criminal.

However people who choose to not wear a seatbelt (unless heavily pregnant) would be seen as committing a criminal act.

It all varies from society to society the types of conduct which are considered criminal.  It was not a criminal act for a man to rape his wife until 1991, it can be seen here that general attitudes within society changes over time and therefore over time our attitudes towards criminal wrong doings also change.

There are three classifications of offences:-

• • Indictable Offences-Serious offences triable by judge and jury
  • Summary Offences-Offences only triable by the Magistrates Court
  • Either way offences- Offences triable either summarily or on indictment

Elements of a Crime

There are two elements that need to be present for a person to be found guilty for a crime committed:-

• • Actus Reus-The guilty act
  • Mens Rea-The guilty mind

It is very important when establishing whether a person committed a crime to consider whether or not the person behaved in a particular way to commit the wrong doing and also it is important to establish whether the person had the mental attitude to match the behaviour.

Both these elements must be proven and satisfied beyond reasonable doubt with an absence of a defence for a crime to occur.

Types of Homicide

There are three types of Homicide:-

• • Murder
  • Voluntary Manslaughter
  • Involuntary Manslaughter

Murder

Murder is defined as the unlawful killing of a human being in the Queen’s peace with malice aforethought.  The Actus Reus would be the unlawful killing of a human being in the Queen’s peace and the malice aforethought being the Mens Rea, therefore meaning an intention to kill or intention to cause Grievously Bodily Harm (GBH).

A murder conviction carries a mandatory life sentence unless one of three specific defences is satisfied.

Voluntary Manslaughter

There are two types of Manslaughter, one being voluntary and the other involuntary which I will cover in a moment.  Voluntary Manslaughter is considered when the Mens Rea exists.

Voluntary Manslaughter exists where a partial defence satisfied a murder allegation to be quashed and therefore there was a reduced liability to Voluntary Manslaughter.

The carried sentence may be anything from a life imprisonment to an absolute discharge depending on the circumstances of the case presented.

Involuntary Manslaughter

Involuntary Manslaughter consists of an unlawful killing of another person, with the Actus Reus taking place however the Mens Rea not amounting to intention for the offence stated.  Involuntary Manslaughter is generally understood to consist of:-

• • Manslaughter by an unlawful and dangerous act- Where the defendant set out to commit a less serious offence however in the process committed the offence of killing a person
  • Gross negligence manslaughter-Where the defendant failed to take care as a reasonable person would exercise in any given situation

Actus Reus

As aforementioned the actus reus is the conduct of the accused. It can be an act of omission or act of commission,It can also be a “state of affairs”.

A person’s behaviour when committing the actus reus in a crime must have been voluntary for the accused to be found guilty.

Examples of involuntary behaviour would be if the person accused was not in control of his/her body (insanity, automatism), or if the person was under tremendous amount of pressure (duress) from some other person when the act was committed.

Depending on the nature of the actus reus, crime can be divided into several categories:-

• • State of Affairs-This comprises more about the ‘being’ than the ‘doing’ of the offence.  E.g. Being drunk whilst driving, or as case R vLarsonneur shows being a foreigner without permission to come to Britain
  • Commission-Doing what the law prohibits us to do
  • Omission-There is no liability for a failure to act however his depends on two exceptions:-

Statutory Duty-Statutory duties are such where a failure to abide by the law incurs criminal liability.  An example of this is when a person refuses to provide insurance details after a Road Traffic Accident

Contractual duty-This is when a person owes a contractual duty to act such as a lifeguard not saving a struggling swimmer.  The lifeguard is a professional within his occupation and therefore is obligated to assist and help struggling swimmers, a failure to do this and the lifeguard incurs criminal liability, however if a person views a child drowning in a lake and refuses to save the him/her, the person is not liable to incur criminal liability as it was not a contractual or statutory duty to do so.  Case R vPittwood shows how the defendant employed by a railway company to man a railway crossing was found liable for the death of a man when his train collided into a horse and cart. Due to the fact the defendant had not carried out his contractual duty to ensure that the gate was closed after its use.

An Omission is when there is a duty implied by law and there are several examples where there are duties implied by law:-

• • Chain of Events-Creating a dangerous situation and failing to put it right. As shown in case R v Miller (James) it was held that the defendant had created a dangerous situation and chain of events, he owed a duty to call the fire brigade or to take steps in putting the fire out when becoming aware of the fire caused by the cigarette. He was therefore liable for his omission to do so
  • Under a contract (mostly when under contract of employment)-(As already aforementioned in R vPittwood)
  • Where a family relationship exists.  In case R v Stone & Dobinson it was held that Ted Stone and his mistress Gwendolyn Dobinson were held liable for the death of Ted’s sister Fanny due to the fact they assumed responsibility for Fanny’s mental health illness and anorexia, however allowed her condition to deteriorate resulting in her death
  • Assumption of responsibility for a person-This is very similar to a responsibility to a family member however this responsibility would have been voluntarily taking on a vulnerable person, in doing this they have a duty of care to that person
  • Misconduct in a public office-A duty arising from an official position as shown in case R v Dytham where a police officer was held liable of wilfully and without reasonable excuse neglecting to perform his duty, when he refused to act or intervene and drove away when witnessing an attack
  • Conduct-The conduct of the accused may be the criminal act, for instance, when a person lies whilst under the oath, this conduct is the act (actus reus) of Perjury.  Other examples of conduct crimes may be Theft, Making off without payment, Rape and Possession of firearms or drugs.
  • Result-A result of a crime is the result which occurs due to the act or omission.  This is where the conduct may not be a crime, however the result of the conduct is, for example throwing and object such as a stone is not a crime, however if that stone hits a person or property then this leads it to be criminal.  Examples of result crimes would be ABH, GBH, Criminal Damage, Battery, Assault, Murder or Manslaughter.

Mens Rea

Mens Reais the state of mind of the defendant when the crime was committed and is the mental element of the crime. The type of Mens Rea depends on the type of offence.

The court will use two types of tests to determine whether the Mens Rea was present when the offence occurred.  The Objective test is used to consider what reasonable persons would have thought in the defendant’s case, there is then the Subjective Test which the court most commonly uses under Section 8 Criminal Justice Act 1967, this test determines what the defendant was thinking at the time of the offence.

There are three elements of Mens Rea:-

Intention-Intention can be divided into two types:-

Direct Intent-Majority of cases involve Direct Intent.  This is where the defendant knows what the consequences of his/her actions will result in. An example is, Angela wants Burt dead, therefore Angela acquires a knife from the kitchen and stabs Burt until he is dead.  Angela knew that by stabbing Burt it would surely kill him and wanted this to happen.

Oblique Intent-The oblique intent is where the defendant carries out a course of conduct, knowing that it could have a specific result and may also have a different result to what the defendant wished for.  In case R V Cunningham (Anthony Barry) It was held that the intention to cause Grievously Bodily Harm and not death is sufficient when dealing in a case which tries to establish the Mens Rea for murder.

Both elements need be satisfied by the level of how foreseeable the intent was.  Foresight is merely evidence from which intention can be found as shown in case R v Moloney it was held that the defendant was not guilty of murder due to the fact he had not intended on killing his step father and that the probability of the defendant having foreseen what the consequences were to his shooting was not enough to establish if there were intent.

Recklessness-Recklessness is deemed as taking an unjustified risk and therefore there may not be any intention involved.  Many questions have been asked as to whether the subjective or objective test should apply to prove recklessness as it has proven much difficulty over the years.  The leading case which proved that the subjective test determined recklessness is R v Cunningham (as already aforementioned).  This case established the questions that needed to be asked:-

Did the defendant foresee the harm that occurred or may have occurred?

Did the defendant continue regardless to the risks involved?

Other tests were introduced such as the Caldwell tests however having two different tests to prove recklessness was deemed as confusing and unnecessary and therefore the Cunningham Recklessness test stood.

Negligence-Negligence is most often related to Civil Law Cases however it does have some relevance to Criminal Law such as gross negligence in manslaughter where the prosecution would need to establish whether or not the defendant owed a duty of care.  Leading case R v Adomako asked the following questions were considered by the jury in deciding their verdict as to whether gross negligence existed:-

• • Did a duty of care exist?
  • If so was there a breach of that duty?
  • If so did the breach cause the death?
  • Is so should that breach be characterised as gross negligence?

The Objective Test is most commonly used to determine whether negligence occurred in a case.  This test asks whether a person’s standards fell lower than what a reasonable person’s would have.  In case McCrone v Riding it was held that even though the defendant was a learner driver, his standard of driving fell below that of a reasonable person and therefore was held liable for careless driving.

Transferred Malice

Transferred Malice occurs when the accused intends to kill a person however happens to kill someone else instead.  Even though the intent was not present the accused would however still be liable for the killing.  This is due to the Actus Reus and Mens Rea being present when the crime occurred, however the Mens Rea is transferred from one offence to another.

Case R v Latimer it was held that despite the fact that the defendant did not intend to harm or injure the woman, he was still found liable as the Mens Rea to cause harm on the man was transferred to the woman.

If the crime that occurred differed to the crime that were intended, Transferred Malice does not exist.

Causation

This refers to whether or not the act or omissions of the defendant were the cause of the harm or damage, some cases are more difficult than others due to third parties being involved or more than one cause of death.  In regards to Result crimes, causation must be established. Causation is divided into two categories which must be proven in a death:-

Factual Causation-Factual Causation is proven by two tests being applied:-

The ‘But For’ test-This test determines whether or not the victim would have died at the same moment regardless of the defendants act or omission. In case R v White it was held that the defendant was not liable for his mother’s death even though he administered poison in her drink.  It was held that the heart attack his mother suffered was the cause for the death and not the administered poison, however he was liable for attempt.  It was this case that introduced the ‘but for’ test.

‘De Minimis Rule’-This depends on whether a death was accelerated by the defendant or not.

Legal Causation-If factual causation is established, Legal causation must also be present.  Legal Causation must be established and proven through one or more of the following:-

• • The Original injury was an operative and significant cause of death
  • The intervening act was reasonably foreseeable
  • The ‘thin skull’ test applied.  The victim has a physical or mental condition or religious beliefs which decreases the chances of survival in comparison to a reasonable person.   An example of this would be if the defendant were to strike a person on the head however the blow to the head was not one of which that would normally kill a person, however victim has an unusual thin skull and therefore the blow to the head caused instant death
  • There must not be an intervening act ‘novus actus interveniens’ which breaks the chain of events If both factual and legal causation is not proved, the defendant will escape liability for unlawful homicide and will therefore be faced with charges for a lesser offence.

Defences

There are two types of defences:-

Partial (Specific) Defences-These defences are confined to an individual offence and are usually of statutory origin.  Specific Defences usually places an evidential Burden on the Defendant to show that he/she acted reasonably.

Different to General Defences, Partial Defences, if successfully argued may reduce the plea for murder to a lesser offence such as Voluntary Manslaughter.  There are four different types of partial defences in murder:-

Infanticide-Killing of a baby under the age of twelve months

Provocation/ Loss of Control-Section 3 of the Homicide Act 1957 sets out the requirements for a defence under Provocation.  These requirements are :-

• • There must be evidence of provocation as shown in case R v Davieswhere it was held that due to observing his wife’s lover walking to her work place it could amount to a provocative act and this issue must have been placed before the jury. The provocative act need not be deliberately aimed nor must the provocation come from the victim.
  • The loss of self control must be due to the provocation
  • The provocation must be that a reasonable man would have reacted in the same way as the defendant

Diminished Responsibility-Set out in Section 2 of the Homicide Act 1957 .  The defendant must establish three requirements to satisfy Diminished Responsibility as a defence:-

• • Abnormality of the mind (upon hearing medical evidence, however not bound to make a decision on the medical evidence heard)-as shown in case R v Byrne where a conviction for murder was quashed and reduced to manslaughter, due to the fact that the defendant was deemed in comparison to that of a reasonable man to be abnormal in mind.
  • The abnormality must be caused by arrested or retarded development of the mind or any inherent causes orinduced by disease or injury
  • The abnormality must substantially impair the defendant’s mental responsibility

Suicide Pact-Section 4 of the Homicide Act 1957 reduces an offence of murder to manslaughter to the survivor of a joint suicide pact, who took part in the killing of another person within the pact

Complete (General) Defences-A defendant should be acquitted of murder when the magistrates or jury have a reasonable doubt as to whether the defendant was entitled to a General Defence.  General defences may be linked to a range of crimes.  Here are the following General Defences:-

Infancy-Children under the age of 10 cannot be criminally liable

Insanity (insane automatism)-e.g disorders such as sleep disorders or epilepsy (The Actus Reus however no existence of Mens Rea), defect of reason or diseases of the mind.  Another example of insanity is the McNaughton Rules 1843

Automatism (sane automatism)-An involuntary act caused by an external factor (stung by a bee or banged on the head)

Mistake-Such as no Mens Rea or Self Defence

Intoxication-The use of alcohol or drugs not allowing the person to have full control or use of their mind.  Involuntary Intoxication is also a defence, however Dutch courage, Mistake and Intoxication are not defences

Public and Private Defences

• • Public Defence-Making a lawful arrest
  • Private Defence-Self Defence
  • Necessity for action-Action taken to prevent a crime from occurring, three issues are taken into account

Was the threat imminent?

Could the person have retreated from the stuation?

Did the defendant make a mistake which caused him/her to think their actions were justified

Reasonable Force-Force for force.  E.g.  balancing the use of force used against the harm the accused sought to prevent

Duress

• • Duress by threats-e.g. where the defendant was being threatened to smash a window or his life would be in danger
  • Two part test
  • Duress of Circumstances

Necessity-this is where the defendant is faced with either a crime being committed or allowing themselves or someone else to suffer or be deprived in any way

Consent

• • Genuine Consent-Must be genuine
  • Capacity to Consent-Some persons lack the capacity to consent or use reasonable force due to e.g. a mental health illness
  • The nature and degree of harm-The nature and degree of harm consented by the defendant, e.g. consent to euthanasia

Lawful chastisement-The amount of reasonable force used to punish or restrain children

Criminal Liability of Mr Stevens

It has been established that Mr Noname has died, therefore there has been a death.  It must be established whether the Homicide was one of murder, voluntary manslaughter or involuntary manslaughter.

Upon Mr Stevens confronting Mr Noname in his kitchen, a scuffle occurred which resulted in Mr Stevens hitting Mr Noname on the head repeatedly 4-5 times and then further more when Mr Noname was trying to get away from Mr Stevens’ premises, even though it was clear to see that Mr Noname had been affected by the blows.

Mr Stevens is guilty of murder only if it was the blows to the head by himself that caused the death and if he had the malice aforethought (the Mens Rea) which meant he had the intentions to kill or to cause GBH.  Mr Stevens realised after the incident in the kitchen that the blows to the head had affected Mr Noname, however he still gave chase and continued to hit Mr Noname, therefore provocation would not be accepted by the prosecution as a defence due to the fact Mr Stevens would have to react that of a reasonable man, however Mr Stevens continued to hit Mr Noname with a pan, even though he could see that Mr Noname was badly hurt and was also trying to run away..

Mr Stevens may have had a loss of control due to the provocation of Mr Noname being in his kitchen however he must have reacted that of a reasonable man and also with reasonable force.  Mr Stevens used excessive force on Mr Noname, more than what a reasonable man would have used.

It is unclear whether or not Mr Stevens would have a defence for diminished responsibility, if Mr Stevens was e.g. suffering from an abnormality of the mind and the prosecution was satisfied with this defence, then the charge of murder would then be quashed and reduced to Voluntary Manslaughter.

Criminal Liability of Mr Edwards

Mr Edwards stated whilst he was driving he saw Mr Noname and Mr Stevens on the pavement  and that Mr Stevens was hitting Mr Noname on the floor, however he was unsure what with.

Mr Edwards states he had slowed his vehicle however the man rose to his feet and fell in front of his vehicle as he was driving and therefore there was no way of avoiding the collision.

If police investigations were to prove that Mr Edwards was driving at the speed he stated and that he was not speeding and driving cautiously and it was justified that Mr Edwards could not have possibly foreseen the collision then Mr Edwards would not be liable for Involuntary Manslaughter as he took all the steps possible to avoid harm,

It also would depend on whether or not it was the collision with Mr Edwards’s vehicle that caused the death, or if it were the blows to the head by Mr Stevens.

If it was due to the collision, Mr Edwards would of had the Actus Reus, however not the Mens Rea.  It would then be looked at whether or not Mr Edwards could have done anything to avoid the collision.  Mr Edwards states that he seen both men on the pavement, could he have foreseen the risk of one of the men falling out to the road?

If so then he could be liable for Reckless Manslaughter as he took an unjustifiable risk of causing serious harm.