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Published: Fri, 02 Feb 2018
Consequence of offence scenario
Referring back to the scenario it is evident that as a result of Bob’s actions two people have been killed i.e., Carol and John.
With reference to the offence committed against Carol it is fair to say that it is murder. The definition of murder is described as “Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any country of the realm any reasonable creaturein 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  .” Hence murder is the act of unlawful killing of a person under the Queens Peace  . However, since 1996 “Year and a Day Rule” part of the murder definition has been eradicated; therefore the death of the person is not necessary to happen during a year and a day.
When discussing a murder case the Actus Reus and the Mens Rea of the offence must be established. From the scenario it is evident that the elements of acus reus are present which are the act of unlawful killing, responsible person, under Queens Peace and within any country of realm. In other words, unless the act of killing is unlawful, the offence will not amount to murder. Therefore, the killing must have occurred as a result of unlawful act. The defendant must not have killed the person for protection of oneself, other, property or for prevention of crime or apprehension of a person unlawfully at large. 
It is also important to establish whether or not the defendant caused the victim’s death. Therefore, the link between the defendant’s actions and the consequences occurred must be ascertained and the sin qua non (but for) should be applied. The question of “but for” what defendant did, would the victim have died anyway? If the answer is yes then the defendant’s actions have not caused the death of the victim  . This is demonstrated in the White case where the defendant’s mother died of a heart failure, before the poison administered by the defendant would kill her. It was stated that the defendant did not kill his mother; therefore he was not convicted of murder. In Corbelt  the D’s actions had resulted in V getting killed. Going back to the scenario it is clear that Bob’s actions have killed Carol. She would not have died but for Bob’s actions. Therefore, with not doubt, Bob has caused Carol’s death.
Therefore, up till now, it is fair to say that Bob has committed murder; he had committed murder unlawfully3. An example of lawful killing was demonstrated in Beckford  where a police officer killed a person believing that he was going to be shot by him. His appeal against conviction was acquitted on the grounds that he reasonably believed that his life was in danger. Therefore, it was considered as a lawful killing.
In the present scenario the killing of Carol was committed under the Queens Peace. However, the killing of an enemy during a war is not unlawful killing.
Having established the acus reus of murder the other element must be established, i.e., the mens rea. The elements of mens rea are the intention to kill or cause grievous bodily harm (GBH). According to Homicide Act 1957 s1  is stated if the killing is committed with malice aforethought then it will amount to murder. In Cunningham  it was sated that murder is “unlawful killing with malice a forethought”. In the mentioned case it was also define malice aforethought as an express malice (direct intention) which related to direct intention to kill or desire to kill. In Calhaem  , where D, who was a hired killer, killed V. he was convicted of murder on based that it was his desire to kill as he was hired to do so.
According to Criminal Justice Act 1967 s8  that despite the fact that D did not have the desire to kill or cause GBH, jury must prove that D believed that as a result of this actions consequences there is a high degree of probabilities. This is demonstrated in DPP v Smith  where D (driver of a vehicle) had caused V’s (police officer) death by failing to stop when asked by V and driving fast. As a result V fell of the vehicle which resulted in his death. The Lord Coddard stated that “there was an irrebuttable presumption of law that a person foresaw and intended the natural consequences of his acts  “. In DPP v Smith the “natural consequences” test was based on reasonable man’s actions. However, a “good and recent” case Woollin  Lord Steyn stated that “where the charge is murder… the jury should be directed that they are not entitled to find the necessary intention, unless they feel sure that death or seriously bodily harm was a virtual certainty as a result of D’s actions and D appreciated that such was the case”. In this case D had thrown and killed 3 months old baby. He claimed that he did not intend to kill the baby. However, it was stated that he must have realised the existence of the substantial risk of causing harm. Therefore, he was convicted of murder on the grounds of substantial risk. Nevertheless, he appealed against conviction contending that it was test of recklessness rather than intention. His appeal was allowed and was charged with manslaughter. Consequently, the test whether malice is express or implied is objective. This is demonstrated in Hyam  , where D killed B’s two daughters as a result of arson caused by D. during her trial she claimed that she did not have express malice to kill them; she committed it to merely frighten them. However, if it was proved that she knew that her actions would cause death of GBH then she would be convicted of murder. Referring back to the present scenario, Bob, undoubtedly, had intention to kill Carol. Therefore, the other mental state of intention is the implied malice (oblique intention) to cause GBH or kill, where D did not intend to cause death of GBH but his actions caused the GBH or death. However, this does not apply to our scenario as Bob had express malice towards Carol to kill her or cause GBH.
In more recent case Molony  two guidelines were set up; 1) whether or not the death or GBH caused national consequence of the acts of the accused and 2) did the D foresee that consequences of being a natural consequences of his act. Therefore the verdict in this case was based on the 2 above questions. It was held that “malice forethought should not be constituted by anything less than intention to kill or cause GBH, only foreseeing the probabilities of the V’s death was not enough.” Therefore, mens rea plays an important role in cases to establish the blameworthy of the defendants  ’.
Having considered the above mentioned cases/ offences and the law at this stage it is fair to say that there is enough evidence of actus reus as well as mens rea; 1) Bob’s actions constituted Carol’s death, 2) Bob had the express malice to kill Carol, 3) Carol was a human being- mature creature and 4) that the offence committed was a murder. Therefore, based on the available mens rea and actus rea of the murder act Bob may be initially charged with murder. However, from the scenario it is evident that he may have defences on grounds of diminish responsibility and perhaps provocation, too. In cases of murder where diminish responsibility and provocation admitted are successful then they both reduce the liability of murder to manslaughter.
Diminish responsibility is a state of mind at the time of the offence and is a defence under the s2 of the Homicide Act 1957  . DR is fairly a new and partial defence to murder. According to s2(1) of Homicide Act 1957 abnormality of mind is based on M’Naughten  . However, the issue with this is that the meaning is so wide that it covers pretty much all aspects of mind activities. Leading case where the abnormality of the mind was descrbed is Byrne  , where D was suffering from DR according to the meaning of S2 of Homicide Act 1957, killed V. Medical evidence proved that he did suffer from DR. The D could not control his means based on his medical condition. Therefore, his conviction against murder was substituted with manslaughter. It was also stated that it need not be showed or proved that D suffered from DR from the birth. In this case Lord Parker contended that “Abnormality of the mind… means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal… Medical evidence is no doubt of importance, but the jury are entitled to take into consideration all the evidence, including the acts or statements of the accused and his demeanour. They are not bound to accept the medical evidence if there is other material before them which, in their good judgment conflicts with it and outweighs it.” This is supported with Gomez  case. In Vinagre  it was contended that when pleading guilty to manslaughter of DR “a clear evidence of mental imbalance will only be valid”. In Walton  an appeal against conviction of murder was dismissed on the grounds that medical evidence was not entirely convincing. However, in Matheson  D pleaded guilty to manslaughter on the grounds of DR. Unlike Walton, in Matheson the medical witnesses that prove the evidence of DR. This was supported by Barley  , too. Therefore, the medical evidence’s role is very important where the D wishes to plead to DR. DR can not be a defence to attempted murder  ; it is only a defence to murder. When diminish responsibility is used as a defence, it is required that the medical condition must be must be identify by Royal Collage of Psychiatrists and Law Commission  .
In Reynolds  it was described that depression does fall under the defence of s2 of the HC 1957. This was also supported by Thornton  . In Bathurst  and Seers  stated that depression comes under s2 of the HA 1957 and are valid defences. Referring back to our case, it is evident that at the time Bob was suffering from violent mood swings due too his behavioural disorder as well as depression diagnosed by psychiatrist. Therefore, based on this DR his conviction against murder may be reduced to manslaughter. Hence, the necessary ingridience of the manslaughter is present.
As of October the 4th, 2010 Coroners and Justice Act 2009 (CJA 2009) started being practised. Therefore, it made few significant differences to the Homicide Act 1957 by updating s2 of the act which is stated in s52  of the CJA 2009. One of the significant changes is that under the new law in order to confirm the mental state of the D and his abnormality of mind must be proved by expert medical evidence, which is believed to be crucial when establishing the DR. The new law has narrowed down the old law under which many murder cases, which did not qualify DabnorR, were admitted and charged with manslaughter. In the new law in addition to D’s understanding of the action (old law) and his recognised mental condition (old law), D “must be at least a significant factor in the killing that has occurred  “.
In cases where provocation exists the jury must determine how D was provoked; 1) was the D provoked to lose his self control (subjective test) and 2) was the provocation enough to make a reasonable man do as he did (objective test). Provocation is defined in s3  of Homicide Act. It is also defined in R v Duffy  as “some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self- control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind”. Referring to the new law Coroners and Justice Act 2009 it also outlines the changes made the provocation defence like diminish responsibility. The provocation defence contrary to s3 of the Homicide act 1957 has now been replaced with loss of control which is defined in s54  and s56  of the Coroners and Justice Act 2009. They are both similar to each other with minor differences. For the purpose of subjective test of the loss of control should be as a result of qualifying trigger described in s55  of the new law.
In our present scenario it is evident that Bob was provoked by Carol into killing her. If she had not made the statement saying “at least he satisfies me which is more than you can do” Bob would not have killed her as he turned to leave the room after giving the £20 to John. However, in order to qualify for this defence, there must be an evidence of sudden and temperedly loss of control. Bob had clearly lost his self control after the statement made by Carol. It was also stated that it is not necessary for the loss of control not be complete  . As described above, the loss of control must be sudden; therefore pre-planned attack will not qualify to provocation  . In cases where time has elapsed between the provocation and the killing, it becomes harder to prove that the D was provoked. This is demonstrated in Ibrams  where the co-defendants had killed V after 7 days they were provoked. It was state that “there was substantial interval of time between the last act of provocation and the killing8″. However, in Baillie  it was contended that the delay between the provocation and the killing should not prevent from the defence of provocation. Therefore, the meaning of sudden was broadened in this case. Bob, in our scenario, had demonstrated “sudden and temporary loss of self control”; i.e., the killing of Carol was committed immediately after he was provoked by what she had said to him.
With regards the objective test, it used to establish whether or not it was enough to make a reasonable person to act as the defendant did. D must have equivalent level of tolerance and self-control as is normal and adequate in the society. In Bedder v DPP  D was convicted of murder on the grounds that “a hypothetical reasonable man” would not have acted as the defendant did; therefore, the reasonable man was not important. Nevertheless, in Camplin  the decision made in Bedder was overruled by s31 of the Homicide Act 1957, where the reasonable man test was considered and was contended that characterises such as sex and age had to be taken account.
This was supported by Morhall  and Luc Thiet Thuan  . Going back to Camplin it was the jury that had to consider the reasonable man’s actions based on his sex, age or any other relevant characteristics. However, in a more recent case Smith (Morgan James)  it was contended that the judge must direct the jury on deciding as to what characteristics must be considered. In this case two categories of characteristics where established; 1) gravity of the provocation which included any other characteristics that are relevant and 2) the power of the self-control which as mentioned above, included sex and the age of the D. In Smith some characteristics were left out from the gravity of the provocation merely on the bases that they were not compatible with the reasonable man concept  . Here D, who suffered from depression, had killed V with a knife. Even thought the depression was seen and considered by the judge and the jury as a relevant characteristic the gravity of the provocation, he was convicted of murder on the bases that it was not relevant to the self control’s standards. It clearly indicates that in Smith they had completely abolished the distinction made in Camplin by no longer allowing reference to be made to the reasonable man. Nonetheless, in AG’s for Jersey v Holly  it was sated that the decision made in Luc Theit Thuan and Camplin was correct by contradicting the decision made in Smith. Finally, in James, Karimi  the decision in the above cases was confirmed and the decision in Smith was overruled. For this purpose Criminal Cases Review Commission (CCRC) reviewed the Smith case and the decision in Camplin was restored. Evaluating the discussed law and the cases it is fair to say that Bob may successfully be charged with manslaughter on the bases of provocation and diminish responsibility. The gravity of the provocation in the present scenario was that he was suffering from depression as well as from behavioural disorder.
Having established the offence in relation to Carol’s death and the possible defences that would apply to reduce the liability of murder to manslaughter
In relation to death of John it is not murder as Bob had no intention to kill or cause any GBH towards John, whatsoever. Therefore, he may be charged with IM as it includes an anlawul and dangerous act (astus reus) but without the presence of the mensa rea of the murder  . For this purpose this offence is less blameworthy than murder. A person is guilty of involuntary manslaughter where 1) he is not guilty of murder by reason only of the fact that, because of involuntary intoxication, he lacked the fault required above; or 2) he kills another: a) by an unlawful and dangerous act; or b) being grossly negligent as to death; or c) being reckless as to death or serious bodily harm  . The definition of involuntary manslaughter is also defined in Andrews v DPP  where Lord Atkin stated as “Simple lack of care such as will constitute civil liability is not enough: for purposes of the criminal law there are degrees of negligence: and a very high degree of negligence is required to be proved before the felony is established”. There are four different categories of IM such as constructive, reckless, gross negligence and corporate. The corporate manslaughter will not be discussed in this essay as it is irrelevant.
To establish whether or not it is constructive manslaughter it must be determined whether D’s actions were unlawful and dangerous and if these actions caused V’s death  . In order to establish an offence both actus reus and mens rea must be present. In Lamb  D had killed V by pointing and firing a gun at a V believing that the bullets were not in the fire position4. His conviction against IM was quashed on the bases that there was no criminally unlawful act present and neither menas rea and nor actus rea were present. There is only one mens rea to this offence i.e., the intention to commit the unlawful and dangerous act. The fact that D was not aware that his act was dangerous and unlawful is not relevant. In DPP v Newbury  it was stated that if the act committed was intentionally and unlawful and dangerous, causing V’s death, it is needless to prove that D knew that his act was dangerous and unlawful. Was also contended that “… the test is not did the accused recognise that it was dangerous act, but would all sober and reasonable people recognise its danger”. In this case criminal damage was considered as an unlawful act. Therefore, here must be criminal act  . This is also supported in Franklin  . In Ball  , it was contended that “D’s state of mind was irrelevant to establish that the act committed was intentional and unlawful, that sober and reasonable man should have realised the risk”. In AG’s Reference  Lord Hope stated that “dangerousness in this context is not a high standard. All it requires an act likely to injure the other person”. For this purpose both factual and legal causations must also be present. It must be proved that V’s death had not have accoutred but for D’s actions. This is supported in R v White  . The fact that D’s actions contributed in V’s death  . As mentioned above, as well as the acts committed being unlawful, they must also be dangerous  . In Church Justice Edmond Davies stated “an unlawful act causing the death of another cannot, simply because it is an unlawful act, render a manslaughter verdict inevitable.”
Gross Negligence manslaughter
For this offence there are 3 elements; the existence of a duty of care, breach of that duty causing death, gross negligence which the jury consider justifies criminal conviction.
Duty of care
For the purpose of the existence of duty between the D and V must be established. This includes professional and contractual relationships or doctor’s duty to care for his patient. In Adomako  , where as a result of his failure to notice the patient’s breathing tube becoming disconnected during an operation. He was convicted of MS. It was stated that “ordinary principle of law of negligence apply to ascertain whether or not D has been in breach of duty of care towards the V…” The decision in Adomako was also applied in Litchfield  .
Breach of duty
Bateman  the D was judged against the standards of reasonable competent doctor. It was stated that “when a doctor honestly exercises his best skill to cure patient, but V dies, the doctor is not guilty of manslaughter”. In Andrew v DPP where D was convicted of negligent driving, Lord Atkin stated “simple lack of care such as will constitute civil liability is not enough: for purposes of the criminal law there are degrees of negligence: and a very high degree of negligence is required to be proved before the felony is established”. Another more recent case, where gross negligence was the case, is Misra v Srivastava  , where V had died as a result of gross negligence. This case was supported by Yaqoob  case.
RM refers to risk taking actions if the V is killed by D, whether he knows or believes that his actions are highly to cause harm, was murder in Hyam  , before Molony’s decision. However, the test for this is for jury to differentiate subjective recklessness from oblique intention. The main case for this is Lider  , where D killed V dragging under wheel on a road. It was stated that “the question was whether D was aware of the necessary degree of risk of serious injury to the victim and nevertheless chose to disregard it or was indifferent to it  .”
Having discussed all the possible offences and defences in relation to Carol he may be charged with manslaughter on grounds of diminish responsibility and provocation. With regards to John’s death
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