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LW508 AUT/SPR: Criminal Law (2018/2019) (Seminars (Week 4 - Actus Reus,…

- - - - In short, the legal issue here was deciding the cause of the accident which led to O’s death. The prosecution’s case was that the aggressive and dangerous driving had caused the accident by either trying to overtake her and cutting in early or, failing that, how closely K drove to O’s car throughout the chase. The defence submitted that the victim had made an unexpected swerve to the left which had inevitably caused the subsequent accident. The judge directed the jury that the dangerous driving did not have to be considered a ‘substantial’ cause of death but rather a cause of death, then this was sufficient to convict K.
        
        The court applied the case of R v Hennigan and found that the direction of the use of the word substantial was sufficient. Application for leave to appeal was dismissed and K was sentenced to two years in prison and a four-year ban from driving. It was also argued that the penalty was too harsh in the circumstances. It was held on this point that an analysis of the aggravating and mitigating factors meant that the punishment was reasonable.
    - - In the course of an argument in a fish and chip shop the appellant shot the deceased in the leg and stomach seriously wounding him. The deceased was taken to hospital where he was operated on and placed in intensive care. While in hospital he developed respiratory problems and a tracheotomy tube was placed in his windpipe to assist his breathing. The tube remained in place for four weeks. The deceased suffered further chest infections and other complications and complained of difficulty in breathing. More than two months after the shooting, while still in hospital, the deceased died of cardio-respiratory arrest because his windpipe had become obstructed due to narrowing where the tracheotomy had been performed, such a condition being a rare but not unknown complication arising out of a tracheotomy. The appellant was charged with murder. At his trial evidence for the defence was given by a consultant surgeon that the deceased's leg and stomach wounds no longer threatened his life at the time of his death and that his death was caused by the negligent failure of the medical staff at the hospital to diagnose and treat the deceased's respiratory condition. The trial judge directed the jury that the appellant was responsible for the deceased's death even if the treatment given by the hospital medical staff was incompetent and negligent and it was only if they had been reckless in their treatment of the deceased that he was entitled to be acquitted. The appellant was convicted. He appealed.
        
        Appeal was dismissed
        
        judgment upheld
        
        His conviction was upheld despite the fact that the wounds were not the operative cause of death. Intervening medical treatment could only be regarded as excluding the responsibility of the defendant if it was so independent of the defendant's act and so potent in causing the death, that the jury regard the defendant's acts as insignificant. Since the defendant had shot the victim this could not be regarded as insignificant.
    - - The defendant was driving a horse and cart down a road without holding on to the reins. A child ran in front of the cart and was killed. The defendant was not liable as he would not have been able to stop the cart in time even if he had been holding the reins.
        This case is authority for the point that the result must be caused by a culpable act. Here the culpable act was not holding the reins, which was not the cause of death.
        
        The defendant's conviction was upheld. The defendant's action need not be the only cause. Liability can arise provided the defendant's act was more than a minimal cause.
  - - - Cases:
        
        DPP v Smith [1961] AC 290
        
        Facts
        
        Jim Smith (S) was ordered by a police constable to stop his car which contained stolen goods, however S accelerated instead. The police constable jumped onto the car, but fell off and was killed by another oncoming car after S violently swerved the car. S was convicted of murder and appealed to the Court of Criminal Appeal.
        
        Issues
        
        The issue in question was whether the mens rea of intent for murder is a subjective or an objective test. S claimed that he could not be convicted of murder because he did not have the requisite mens rea of intention to kill or to cause grievous bodily harm. He claimed that the mens rea for murder is subjective, and the trial judge had misdirected the jury in stating that the mens rea test for murder was whether a reasonable man would have contemplated that grievous bodily harm was a likely result from J’s actions.
        
        Judgment
        
        The Court of Criminal Appeal, finding the test to be subjective and the trial judge to have misdirected the jury, allowed the appeal and substituted a verdict of manslaughter. The case was then appealed by the prosecution to the House of Lords. The House of Lords held that an objective test was applicable to the mens rea of intent for murder, therefore there was no misdirection and the murder conviction was to be reinstated. Where the accused is capable of forming an intent in that he is not insane nor suffering from diminished responsibility, any actual intention is immaterial, and the mens rea test for a conviction of murder is what in all the circumstances the ordinary reasonable man would have contemplated to be the natural and probable result of the grievous bodily harm done.
        
        Malcharek; Steel [1981] 1 WLR 690
        
        Vickers [1957] 2 QB 664 (CA)
        
        Enoch (1830) 5 C & P 539
        
        R v Bollom [2003] EWCA Crim 2846
        
        Cunningham [1982] AC 566
        
        Facts
        
        Issue
        
        Judgment
        
        Woollin (1998) Crim LR 890; [1999] 1 AC 82 (indirect intention - virtual certainty test)
        
        Oblique intent: a person has oblique intent when the event is a natural consequence of a voluntary act and they foresee it as such.
        
        Foresight of certainty = intention. Indirect intention requires foresight of the consequences.
      - Questions:
        
        What is the difference between intention and recklessness? Explain your answer using relevant cases.
        
        Recklessness and intention are both types of mens rea but are of different levels. Intention is defined in Mohan as 'aim or purpose' and is the the most severe and usually used for higher level crimes like murder of S.18 of non-fatals. Recklessness is found in Cunningham which holds that D foresaw that their actions were likely to cause harm but continued anyway. This is a lower level of mens rea used for milder crimes like assault and battery.
        The difficult bit is when you have the indirect intent of Woollin which straddles the line between intention and recklessness and requires that the outcome was 'virtually certain' and that the D was aware of this. If the answer is yes then the jury can use this as evidence that D intended it to happen.
        
        Explain the differences between the concepts of subjectivity and objectivity. Explain your answer using relevant cases. (PTO)
      - Case example:
        
        Discuss Ken's criminal liability:
        
        Ken's furniture manufacturing business is in severe financial trouble and Ken himself is on the verge of bankruptcy. One lunch time, Ken is going to the pub and is securing the premises when he notices smoke coming from the storage area. The workmen often take their tea breaks there and Ken's first thought is that one of them had been careless with a cigarette. His second thought is that a fire would come in handy and that the insurance payments would solve his immediate financial problems. Accordingly, he shouts to make sure no workmen are on the premises and then locks the door before going off to the pub as he intended. He takes no steps to extinguish the fire.
        
        Almost immediately he remembers that his elderly secretary, Norma, is upstairs in the office catching up on some paperwork for the VAT returns. He feels that he cannot warn her without revealing his plan to defraud the insurance company. He carries on to the pub.
        
        The fire catches hold. Norma smells the smoke and tries to leave. The office fire escape door has been locked by mistake. Rather than phone the fire brigade and wait for rescue, Norma chooses to go down the main stairs although she can see that this is very dangerous. Halfway down, she suffers a massive heart attack from an inherent defect that neither she nor her doctor were aware of and dies.
        
        Ken is charged with her murder.
        
        B) As above but Ken decides before leaving that he will wait fifteen minutes and then call the fire brigade, believing they will arrive in time to save Norma.
        
        C) If Ken starts the fire not realising Norma is in the building.
        
        Omissions:
        
        Creating dangerous situation
        
        Contractual
        
        Assumed
        
        Statutory
  - - - Difference between voluntary and involuntary
        
        If mens rea and actus reus found then it can either be deemed murder or voluntary manslaughter
        
        In order to reduce the sentence from murder to voluntary manslaughter partial defences must be found
        
        partial defences:
        
        diminished responsibility
        
        suicide pacts
        
        Loss of self control
        
        If no mens rea is found and only actus reus is present, then sentence must be
        
        Involuntary manslaughter
        
        types of involuntary manslaughter
        
        Recklessness
        
        constructive
        
        Gross Negligence
        
        1 more item...
      - Cases:
        
        Clinton [2012] EWCA Crim 2 (loss of control) – NB this case will be ‘core reading’ later this term
        
        Mark Golds [2016] UKSC 61 (diminished responsibility)
      - Advice note
        
        how the Coroners and Justice Act 2009 has amended the law on loss of self-control (formerly provocation) and diminished responsibility.
        
        Charge: Murder
        
        AR: Unlawful Killing
        
        MR: Intention to kill, GBH
        
        LOC - SS.54-55 CJA
        
        LOSC
        
        Qualifying triggers:
        
        Fear of serious violence
        
        Justifiable sense
        
        A person of D's sex and age, and with a normal degree of tolerance and self restraint and in the circumstances of D, might have reacted in a similar way
        
        R v Ahluwalia [1992] 4 All ER 889;
        
        Diminished Responsibility
        
        DR - 52 CJA
        
        Abnormal mental functioning
        
        Medical Condition
        
        Both dependent on alcohol
        
        Impairs D's ability
        
        Explains D's acts/omission
- - - - Origins
        
        Former provocation defence
        
        common law and homicide Act 1957
        
        replaced from 5th Oct 2010
        
        Ss. 54-56 C and Justice act 2009
        
        Effect is to reduce murder to manslaughter
        
        2 more items...
        
        Old Provocation defence
        
        D's acts resulted from a sudden and temporary loss of self control
        
        Triggered by something said or done
        
        the trigger would have had that effect on a reasonable person
        
        1 more item...
  - - - Subjective recklessness not sufficient for murder, but is sufficient for manslaughter
        
        D foresees a high probability of death or SBH and goes on to take that risk
        
        test for manslaughter
        
        Subjective test for recklessness reinstated; G (2004)
        
        Court of appeal in Prentice, Holloway and Adomako (2004)
        
        Confined Seymour (1983) to motor manslaughter
        
        Gross neg is the appropriate test for other inadvertent manslaughters
        
        House of Lords in Adomako held that gross neg was the appropriate test for manslaughter by inadvertence
      - Manslaughter by Objective Recklessness
        
        D not aware that his conduct creates an obvious and serious risk of harm, but a reasonable person would have been so aware.
        
        Case:
        
        Caldwell (1981)
        
        Applied to causing death by reckless driving; Lawrence (1982)
        
        Caldwell test applied to motor manslaughter, and GNM generally, but the risk of death must be very high; Seymour (1983)
      - Did D owe a Duty of care to V?
        
        Even creating a state of affairs which could be life threatening may be sufficient; Evans (2009) - supply of drugs to half-sister
        
        Risk and Degree of Negligence
        
        Must be a risk of death; Misra (2004)
        
        D's act must be such that a reasonably prudent person would have foreseen a serious and obvious risk of death if he did not take care
        
        Negligence must be so severe as to show such disregard for the life and safety of others as to amount to a crime against the State; Bateman (1925)
      - GNM V RM
        
        D is aware of high probability of death or serious injury (RM)
        
        Degree of negligence must be so severe as to be deserving of punishment (GNM). not so far for RM
        
        Reasonable person foresees a serious and obvious risk of death (GNM)
      - Corporate Manslaughter
        
        Common Law struggles to cope with the situation where death is the result of the culpable acts or omissions of a corporate body
        
        The lesser faults of individuals in the body cannot be aggregated to establish GMN on the part of the body as a whole
        
        Corporate ms and corporate Homicide act 2007
    - - Moloney (1985), Lidar (2000)