Criminal law is there to create harmony


Criminal law is there to create harmony in the modern British society; to govern the way people behave (not like in the communist world). It is there to punish all the outcasts that are there to disrupt that system so that the Queen’s peace can be restored shown in the case of [Brown] [1] in which Lord Templeman said;

“Society is entitled and bound to protect itself against cult of violence."

But in the English legal system, there is always a chance to fight for the innocence of the defendant.

To be criminally liable, both action and mental state has to coincide with each other which the case of [Fagan] [2] . Judge James J said;

“For an assault to be commissioned, both the element of the actus reus and mens rea must be present at the same time."

In which the moral of the legislation has the following phrase embedded in it.

“actus non fait reum nisi mens sit rea" which means “an act alone will not give rise to criminal liability unless it was done with a guilty state of mind."

With two factors to consider, they have to be proved which in the [Wollmington], Lord Sankey defined it as;

“Throughout the web of the English criminal law one golden thread is always to be seen – that is that duty of the prosecution is to prove the prisoner’s guilt. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."

So proving that both mens rea and actus reus has to be done by the prosecution which the decisions are made by the juries, so convincing them the liability is a pinnacle aspect in sentencing and the defence to convince the juries try and lower the charge or quash all the charges against the defendant. The verdict from the juries has to be a ten to two overall majority vote.

April’s liability for Burglary

April walking into Matthew’s house without permission which can be classed as trespassing which comes under the Theft Act 1968 under s.1 (a) and (b) where s.2 could play a part as well, which states;

“(1) A person is guilty of burglary if—

(a) he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below; or

(b) having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm.

(2) The offences referred to in subsection (1) (a) above are offences of stealing anything in the building or part of a building in question, of inflicting on any person therein any grievous bodily harm [...]1 therein, and of doing unlawful damage to the building or anything therein. “ [3] 

April is entering the house as a trespasser could be proven via the legal principle defined in the case of [Collins] [4] as entering the building with any part of the body without permission but proof would be needed to see if she was definitely there so a forensic team might be needed to search the house for evidence left behind by April or asking Matthew of his knowledge of her being in the house at that hour.

With criminal law, mens rea has to be proven. In this legislation, the mens rea is intention, more specifically direct intention. Was putting the rat poison into the flask will cause GBH in which the case [Mohan] [5] can be used to prove this from Lord Diplock;

“This appeal raises two speerate questions. The first is common to all crimes of this class. It is: what is the attitude of the mind of the accused towards the particular evil consequence of his physical act that must be proved in order to constitute the offence."

If April is found liable, she could be sentenced to up to 14 year’s imprisonment.

April’s liability for Attempted Murder of Matthew

The main test in finding out if the act was an attempt is a proximity test. It tests to see the approximation of the outcome of the act from the defendant does would lead to if it was carried out. If the act agrees with this test, April could be liable for attempted murder which comes under the Criminal Attempts Act 1981 s.1. It states;

“1. Attempting to commit an offence.

(1) If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence." [6] 

The actus reus that is defined from the act is “more than merely preparatory." The ratio decidendi is found in the case of [Gullefer] [7] which explained it as the defendant must have gone beyond purely preparatory acts and be embarked on the crime proper. April bought rat poison and knew where to put the rat poison without suspicion in Matthew’s flask that he uses to make coffee in for work in the morning. She knew that he did that as a daily habit which satisfies “more than merely preparatory" requirement of the statute.

“Intent to commit an offence" satisfies the mens rea element of criminal law. In the case of [Eason] [8] the intent to commit the crime or attempt to commit the crime is an important factor within this statute in which the test is the same as the test for intention as above [Mohan] [9] which Lord Diplock reiterates the importants of mens rea as well as the actus reus;

“I do not desire to say more than that I agree with those of your Lordships who take the uncomplicated view that in crimes of this class no distinction is to be drawn in English law between the state of mind and one who does an act because he sires it to produce a particular evil consequence and the state of mind who does the act knowing full well that it is likely to produce that consequence although it may not be the object he was seeking to achieve by doing the act. What is common to both these states of mind is willingness to produce the particular evil consequence: and this, in my view, is the mens rea needed to satisfy a requirement whiter imposed by statue or existing at common law, that in order to constitute the offence with which the accused is charged he must have acted with “intent" to produce a particular evil consequence or, in the ancient phrase which still survives in crimes of homicide, with “malice aforethought"."

April’s liability to the murder of June

The cause of death of June can be traced back to April via the rat poison which means April would be liable for murder which comes under common law which the classic definition was made by Sir Edward Coke in 1779;

"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 King's peace, with malice aforethought, either expressed by the party or implied by law, so as the party wounded, or hurt, etc. die of the wound or hurt, etc. within a year and a day after the same." [10] 

Within this definition of murder, there are four actus reus identified; unlawfully killing, human being, under the King’s peace (but now it’s under the Queen’s peace) and within a year and a day with the mens rea of malice aforethought. Unlawfully killing means killing of any nature happening unless a full defence is put forward which is self defence. Human being classed in law as a person that is able to live without the help of the mother helping it to survive, in other words, not a foetus which was defined the case of [A-G Ref] [11] . Under the King’s (Queen’s) peace means distrupting the peaceful way society is running. The within a year and a day rule has been substituted by s.2 (1) Law Reform (Year and a Day Rule) Act 1996 after s.1 of the act abolished it which states;

“2(2) This section applies to proceedings against a person for a fatal offence if—

(a) the injury alleged to have caused the death was sustained more than three years before the death occurred, or

(b) the person has previously been convicted of an offence committed in circumstances alleged to be connected with the death." [12] 

April acted to cause death on the day June’s death occurred so the rules of s.2 (2) Law Reform Act 1996 does agree with the rules but everything else within the definition of murder does.

To find out the actus reus, causation can be used to find out if April actually causes the death. There are two criteria that needs to fit into causation, did April cause the death in fact and in law. Both are just as important as each other in a successful conviction of April causing the death of June.

To prove that April caused the death in fact, the “but for" principle is used which the cases of [Dalloway] [13] and [White] [14] are used to prove factual causation. So the question is, if June didn’t drink the coffee, would she of died anyways which an autopsy might be needed to provide evidence of that.

Secondary, legal causation is needed to be proved which has four aspects to it; substantial, ordinary hazard, no need to be direct and take the victim as you find them, which anyone of these criteria would be acceptable in proving legal causation. April putting rat poison into the flask acts as it is substantial which relates to the case of [Hennigan] [15] and April didn’t touch June in anyway; she just prepared the rat poison into the flask which comes under the no need to be direct criteria with the case [Watson] [16] attached to it.

The question now is, does Matthew giving his flask of coffee to June break the chain of causation [Roberts] [17] leading to the liability of April causing June’s death which means April putting the rat poison into Matthew’s flask is not the sole cause of June’s death which the case [Pagett] [18] .

April and June are twin sisters and have moved out of their parent’s house to live together in a flat which omissions could be used to find the actus reus. As twin sisters, it could show that they have a special relationship with the case of [Gibbons & Proctor] [19] and [Stone and Dobinson] [20] , so April has a duty of care June but, June went to see Matthew was a surprise, so this unforeseen occurrence which could relieve her liability via omissions.

Once the actus reus has been established, the mens rea which was identified from the common law definition as malice aforethought. Malice aforethought gives two different meanings; intention to cause death and intention to cause GBH.

There are two different types of intention, direct intention and oblique intention. Direct intention has been mentioned in the other liabilities April might be charge for as an everyday meaning of intention. April wanted to cause death as the outcome of her actions, which agrees with the [Mohan] [21] as a test of direct intention even if she didn’t want to kill June with the rat poison. Even if April did not want to kill June, oblique intention can be used to find out that she intended to cause death as a result. Using the case [Woollin] [22] to find out oblique intention; putting rat poison into the flask was a vertical consequence of death.

If intention is not found, it could lessen the charges to manslaughter by using two other categories of mens rea; recklessness and negligence. The meaning of recklessness is the same as everyday meaning of it, taking an unjustified risk, which it has two types of recklessness, subjective and objective recklessness.

Subjective recklessness is when the defendant saw the risk but still carries out the act where the test of the [Cunningham] [23] is used. April was aware that the risk of putting rat poison in the flask would cause death but still carried it out. Objective recklessness is when the act would cause a risk is obvious to a reasonable person and to the defendant. Ingesting rat poison would cause GBH to a person, which a reasonable person would have known and even if not, the name would have given an obvious idea that it would cause death, with the word poison. The [Caldwell] [24] case would provide the case of objective recklessness.

Another test for recklessness is the Caldwell Lacuna test. It’s a test that is defined as the defendant missing the risk but a reasonable person would be able to see the risk. The [Merrick] [25] case provides a back up to the argument. This test could make April liable to unlawful act manslaughter due to her act agreeing with the three requirements of the charge; was unlawful, dangerous and cause the death of victim.

With April and June having a special relationship as they are twin sisters, negligence could prove the mens rea of the offence. The case of [Adomako] [26] could prove the evidence for negligence which could charge April with gross negligence manslaughter.

Once the charge of April has been established, a defence can be put forward. A full defence using self defence does not comply with her actions because she wasn’t endangered; she was the cause of the act. Self defence is defined by s.3 Criminal Law Act 1967;

“(1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large." [27] 

Using insanity as a defence for a special verdict could not be used because it doesn’t comply with the [M’Naghten] [28] Rule that was set out for this defence which is not the same as the medical or psychological reasoning for insanity but a legal reasoning for insanity.

Same goes with diminished responsibility, it cannot be used as a defence for April unless, she has been discovered with an abnormality of the mind [Byrne] [29] after the event, which the legislation for this is stated in s.2 (1) Homicide Act 1957.

“[(1)     A person (“D") who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which—

(a)     arose from a recognised medical condition,

(b)     substantially impaired D's ability to do one or more of the things mentioned in subsection (1A), and

(c)     provides an explanation for D's acts and omissions in doing or being a party to the killing." [30] 

The medical condition has to be found by two independent doctors to make it viable as a defence using the diminished responsibility.

Provocation could act as a partial defence for April. It is defined in s.54 Coroners and Justice Act 2009;

“(1)     Where a person (“D") kills or is a party to the killing of another (“V"), D is not to be convicted of murder if—

(a)     D's acts and omissions in doing or being a party to the killing resulted from D's loss of self-control,

(b)     the loss of self-control had a qualifying trigger, and

(c)     a person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D." [31] 

The qualifying trigger could be the criteria that would help with the defence with Matthew saying that he would not allow June to see her and laughing at her when she was in tears and walking away. The qualifying trigger is defined in s.55 Coroners and Justice Act 2009;

“55  Meaning of “qualifying trigger"

(1)     This section applies for the purposes of section 54.

(2)     A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies.

(3)     This subsection applies if D's loss of self-control was attributable to D's fear of serious violence from V against D or another identified person.

(4)     This subsection applies if D's loss of self-control was attributable to a thing or things done or said (or both) which—

(a)     constituted circumstances of an extremely grave character, and

(b)     caused D to have a justifiable sense of being seriously wronged.

(5)     This subsection applies if D's loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4)." [32] 

But with the legislation being made very recently, there are not many cases around so the defence using provocation relies of the evidence that could be found on the qualifying trigger of April’s actions.

April’s liability for Assault on Tessa

Assault is a common law offence that is defined as;

“an act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful personal violence."

April threatens Tessa by saying, “get away from my cab or I’ll make you sorry" which in the case of [Constanza] [33] stated that assault does not have to be violent; words could be considered as an assault.

April then pushes Tessa which lead to her liability to battery which is another common law offence;

“is an act by which a person intentionally or recklessly inflicts unlawful personal violence on another"

The actus reus for battery could be direct or indirect [Haystead] [34] , non-consensual [Donovan] [35] and physical contact upon the victim [Thomas] [36] in which April satisfy all these requirements.

With the physical harm leading to Tessa slipping and banging her head causing her to be dazed, bruised and having concussion, could make April charged with assault occasioning actual bodily harm which is stated at the s.47 Offences against a Person Act 1861;

“whosoever shall be convicted on indictment of any assault occasioning actual bodily harm shall be imprisonment for any term not exceeding five years."

But the most serious offence that April could have caused to Tessa is inflicting GBH which could be satisfied by the concussion April caused Tessa to have which is in s.20 Offences Against a Person Act 1861;

“whosoever shall unlawfully and maliciously wound or inflict any GBH upon any other person, either with or without a weapon instrument shall be....liable to....five years imprisonment."

GBH is defined in the case of [Smith] [37] where the judge Viscount Kulmuir LC said;

“The words “grievous bodily harm" are to be given their ordinary and natural meaning. “Bodily harm" needs no explanation, and “grievous" means....really serious....."

The mens rea for all these acts has been said in the statute as intention which has the same meaning as the cases of the liabilities above because it is from common law so the test is the use of [Mohan] [38] but subjective recklessness could also be used as well to find the mens rea where the [Cunningham] [39] test is generally used. Subjective test has been modified for the liability for s.20 Offence Against a Person Act called the Mowatt Gloss which is approved in the case of [Parmeter] [40] which say that the defendant foresees some harm for their actions but does not expect it to cause GBH from it.

April’s liability for Kate’s death

April could be liable for the death of Kate via omissions because she created a dangerous situation [Miller] [41] by throwing away the bottle of rat poison to next door’s garden. Kate mistakenly eating the rat poison and was sent to hospital. Does the doctors actions (non-action) break the chain of causation (novus actus interveniens) like the case of [Cheshire] [42] where judge Beldam LJ said;

“Even though negligence in the treatment of the victim was the immediate cause of death, the jury should not regard it as excluding the responsibility of the of the accused unless the negligent treatment was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant."

So the question to ask are, is the rat poison caused enough injury to Kate that death could occur in the end or the negligence of the doctor for failing to notice the symptoms before she died.

For both directions of this liability, they fall down in the involuntary manslaughter category of offence. Involuntary manslaughter is when the defendant has the actus reus of manslaughter but does no satisfy the mens rea of murder.

If the rat poison was enough to cause the death of Kate, you could go down the route of reckless manslaughter. The mens rea for this type of manslaughter the defendant caused death without awareness that their act would cause a risk of death or GBH provided that they saw the risk as less than virtually certain of death. April threw the bottle over the fence to get rid of evidence, so the question to ask her would be, did she see the risk of causing death of her actions of discarding the rat poison and a young child eating the contents [Lidar] [43] 

If the doctors did break the chain of causation (novus actus interveniens) like in the case of [Roberts] [44] , gross negligence manslaughter would be the considered as a liability. There are two criteria, a breach of duty and a duty of care. Breach of duty means they failed to act on the basis that they are there to do so, so the doctors looking after Kate failed to act on the symptoms or test for rat poison until afterwards. Duty of care means they are there look after the person in which in the hospital, the doctors are there to look after Kate’s well being until she gets better than gets discharged by the hospital. Both of these were satisfied and the case to establish these two criteria is [Adomako] [45] .

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