Analyzing Criminal Liability

Question 1

In this scenario, Carole has after being persistently being provoked by her sister Louise, caused her death by hitting her on the head with a crowbar. The situation involves homicide which includes both murder and manslaughter. Therefore, it is possible that Carole could be criminally liable for either murder or manslaughter depending on the circumstances under which the death occurred. Murder is a common law offence which is the unlawful killing of a human being in the Queen’s peace with malice aforethought. As is the general requirement in all offences, there must exist the actus reus and mens rea of the offence for one to be criminally liable for the said offence. In essence a person will be criminally liable if he carried out the acts leading to the death and had a required mental underpinning for the offence. Seeking a criminology dissertation help in understanding such nuanced legal distinctions provides the most valuable insights into the complexities of criminal liability and the judicial process.

To prove the actus reus of the offence of murder, it must be shown that the killing was unlawful, the victim must have been a person in being, the victim must have died and the victim’s death must have been caused by the act or omission. An act or omission could amount to unlawful killing and in this case, Carole acted and used an object to hit Louise. However, not all actions leading to the death of a person can be termed as unlawful given that killing another person in self-defence is justifiable in the eyes of the law. Similarly, police officers can kill a person in the course of their duty but it has to be in accordance with the law. In this case, Carole can be said to have unlawfully killed Louise because she did not do it in self-defence and her action is not sanctioned by the law.

The second element requires the victim to be a human being hence excludes animals and foetus of human being. This element has extensively been in discussed in R v Inglis 2011 1WLR 1110 and R v Malcherek and Steel [1981] 2 ALL ER. In all these cases the common thread is that any unlawful termination of the life of a human being regardless of their physical condition is punishable under the law. Louise was a human being hence killing is rightly within this requirement. Murder is a result crime hence, there must be a causal link between the defendant’s conduct and the death of the victim. Under common law, causation is categorised into factual and legal causation. Factual causation ponders whether the death of the victim would have occurred but for the actions of the defendant. In this scenario, the ‘but for test’ to be applied is: but for the actions of Carole, would Louise have died?

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1. Donson Fiona, and Catherine O’Sullivan. Building block or stumbling block? Teaching actus reus and mens rea in criminal law. (2016)The Teaching of Criminal Law. Routledge 21,33.
2. ibid
3. Hasitha Sai, and Ayush Jain, Actus reus and mens rea. (2019).

The ‘but for test’ was established in R v White [1910] 2KB 124 where a man who poisoned the mother was found not liable for her death since she had died of heart attack and not the poison. He was however liable for attempted murder. Given the circumstances, it is clear that but for Carole hitting Louise on the head with a crowbar, she would not have died. Therefore, Carole will be considered liable since her action is the factual cause of the death. Additionally, legal causation requires that the harm must result from a culpable act, the defendant’s action need not be the sole cause of the resulting harm and there should not be any novus actus interveniens. The case of R v Dalloway is the authority for the requirement that the result must be caused by a culpable act. In this case the court found that the defendant’s culpable which was not holding the reins was not the cause of the death. In the present scenario, the culpable act of hitting Louise on the head with a crowbar caused her death. Further, there is no intervening action in the chain of causation.

Apart from actus reus, murder must entail the mental element of malice aforethought. Under common law, malice aforethought has been taken by the courts to mean the intention to cause gross bodily harm and intention to kill. The above position has been reiterated in R v Vickers where Lord Goddard CJ stated that malice aforethought is either an express intention to kill or implied where an accused person intended to cause grievous bodily harm to the victim. Similarly, R v Cunningham considered the question of malice a forethought and upheld the decision in R v Vickers with regard to the element of grievous bodily harm even if the intention was not to kill the victim. While it may not be clear whether Carole intended to kill her sister, her actions led to her death. Admittedly, it is difficult to establish whether she intended to kill her sister or cause her grievous bodily harm.

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4. Taylor, Louise. Elliott & Quinn's Criminal Law. (Pearson Higher Ed, 2018)
5. [1847] 2 Cox 273
6. [1957] 2 QB 664
7. [1982] AC 566

Additionally there are surrounding circumstances in the killing of Louise including the fact that the victim had been bullying and harassing Carole since they were young. On that particular day, the victim actively provoked Carole by disparaging and jabbing her in the chest. While self-defence appears to be an appropriate justification for the actions of Carole, it is clear from the facts that she was not actually attacked. In the event that she was attacked, the law requires that the action should be proportional to the act of the aggressor whom self-defence is applied. According to the Crime and Courts Act 2013, a person has the right to defend themselves provided that the force used is not grossly disproportionate in the circumstance. The above law was necessitated by the case of Tony Martin that involved the shooting of a burglar who had invaded a farmer’s home and the use of force in self defence instances. Therefore, Carole cannot rely on self defence against the unlawful killing of her late sister.

Taking into account the mental state of Carole during the period leading to the death of her sister, it is perhaps appropriate to look at her possible liability for manslaughter. Manslaughter is basically murder without premeditation, which means there is no malice aforethought. It is further divided into voluntary and involuntary manslaughter. Voluntary manslaughter is where the defendant had the intention to kill or cause grievous bodily harm to the victim but such liability is reduced by loss of self-control or reduced mental capacity. Initially the partial defence of loss of self-control was known as provocation until it was changed by section 54 of the Coroners and Justice Act 2009. As a partial defence, loss of control has the effect of reducing liability for murder to manslaughter. However, the defence does not absolve the accused person of the offence completely and hence the reference to partial defence. It follows that this defence would reduce the criminal liability of Carole for murder to manslaughter.

In line with section 54 of the Coroners and Justice Act 2009, a charge of murder may be reduced to manslaughter where: there is loss of control, the loss of control has a qualifying trigger and a person of the defendant’s sex would have acted in the same way. Unlike in the defence of provocation, loss of control has no requirement that it be sudden. However, if a person acts in a considered desire for revenge, they cannot rely on the defence of loss of control. On qualifying trigger, the defendant’s loss of self-control is attributable to his or her fear of serious violence from the victim against the defendant or it is attributable to the things done or said. The thing that is said or done must have constituted circumstances of an extremely grave character and caused the defendant to have justifiable sense of being seriously wronged. Taking into account the above parameters, it can be said that Carole may rely on the partial defence of self-control.

In R v Hatter, the court held that the defence of loss of control could not be relied on by the defendant who had stabbed a woman to death owing to broken relationship. The court stressed the fact that there was no extremely grave circumstances that would have warranted such action and the justifiable sense of being wronged is to be judged objectively. Applying the same holding and test to the scenario at hand, Carole may have considered the circumstances were extremely grave and she though and felt that she had been seriously wronged justifiably in the circumstances. Louise abused and physically harassed Carole and in the process threw away her book, actions which could be interpreted to reflect extremely grave circumstances.

Initially, the law provided for the use of the reasonable man’s test to determine provocation but the current law used the principle of degree of tolerance and self-restraint. In R v Clinton the victim had told the defendant that she had sex relations with five, she had taunted and laughed at the defendant about him looking at suicide website and that she no longer wanted the children. The appellate court found that the defence of self-control should have been considered by the jury and further held that sexual infidelity may be relied on in conjunction with other factors as a qualifying trigger. Consequently, it must be considered whether another female of Carole’s age, with a normal degree of tolerance and self-restraint and in the circumstances leading to the death of Louise might have reacted in the same way. Applying this test, it is possible that another person in that position could have probably acted in a different manner and by so doing slapped Louise or even pulled her hair. Basically, the act of hitting the victim on the head does not seem to be the contemplation of a person in the same situation with normal degree of tolerance and restraint.

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8. R v Ibrams & Gregory (1982) 74 Cr App R 15 Section 54(4) of Coroners and Justice Act 2009
9. S 55 Coroners and Justice Act 2009
10. [2013] WLR(D) 130
11. [2012] EWCA Crim 2

Be that as it may, the other factors at play during the unfortunate ordeal should also be considered in determining Carole’s criminal liability. Under voluntary manslaughter, there are other defences that can be pleaded in a charge of murder including that of diminished responsibility. In essence, diminished responsibility reduces the criminal liability of an accused person from murder to manslaughter. The legal framework for diminished responsibility is in section 2 of the Homicide Act 1957 as amended by section 52 of the Coroners and Justice Act 2009. For Carol to rely on the above defence she must establish the following: an abnormality of mental functioning caused by a recognised mental condition, this abnormality explains her actions and impaired he mental ability to either understand the nature of her conduct or form rational judgment or exercise self-control. Accordingly, an abnormal state of mind may not be insanity but it acts as a partial defence to a murder charge where it impairs the mental responsibility of the defendant. In R v Seers, the court found that severe depression could amount to mental impairment that affects the judgment of an accused person.

In another case the appellate court substituted murder convictions for manslaughter convictions on the basis of diminished responsibility caused by severe depression. Carole had been diagnosed with severe depression which in the circumstances could have substantially impaired her mental responsibility. Section 1B of Homicide Act 1957 provides that the abnormality of mental functioning should provide an explanation for the defendant’s conduct. The abnormality should also be a significant contributory factor in causing the defendant to do that which he or she did. In the present scenario, it can be argued that Carole acted the way she did because of other factors including the abuse but the significant cause of her actions was the severe depression. Further the abnormality of the mind must be shown to have substantially impaired her mental ability to do any of the three things highlighted hereafter. As a result of abnormality of the mind she could not understand the nature of her conduct or form rational judgment or even to exercise self-control. However, medical evidence of severe depression must be adduced to show a complete loss of control as was established in R v Campbell.

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12. Dressler Joshua, Frank R Strong, and Michael E. Moritz, Understanding criminal law. (2001).
13. CACD ((1984) 79 Cr App R 261)
14. R v Gittens (1984) 79 Cr App R 272

Question 2

Geoff punched John in response to his insult against their football team. This act amounted to battery which has been defined in R v Ireland as ‘the unlawful application of force by the defendant upon the victim’. To prove battery, there must be an application of force which can either be direct or indirect as has been held in Fagan v MPC and DPP V K (a minor). Secondly, the defendant must have been acting unlawful to mean that there was no lawful excuse to use force on a person. However, this does not apply when a person is acting in self-defence or in prevention of crime or where the victim has consented. In the present scenario, Geoff was neither acting self-defence nor preventing the commission of a crime.

Thirdly, there must be physical force used by the defendant on the victim however, Lord Lane CJ has held in Faulkner v Talbot that ‘any intentional touching of another person without their consent and without lawful excuse amounts to battery’. In fact it does not matter whether it was rude, aggressive or hostile. By committing battery, Geoff’s actions can be considered under section 47 of Offences Against the Person Act 1861 under which it is an offence to commit an offence occasioning actual bodily harm (ABH). The necessary actus reus for the offence of ABH includes assault or battery on the defendant which results in actual bodily harm. Apart from battery, he could even be liable for grievous Bodily harm depending on the nature of injuries sustained by John after the visitation of a clean punch. Although Geoff ran away after punching John, his actions could attract the offence of murder as they contributed to the death of the victim.

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15. [1997] 1 Cr App R 199
16. [1997] 3 WLR 534
17. [1969] 1Q.B. 439
18. [1990] 1 WLR 1067
19. Demetriou Stavros, Not giving up the fight: a review of the Law Commission’s scoping report on non-fatal offences against the person.(2016) The Journal of Criminal Law 188,200
20. [1981] 3 All ER 468

Fred, Geoff’s brother joined the fight and allegedly kicked John in the head several times after he fell down. In the first instance Fred fulfils the actus reus of the offences of actual bodily harm and gross bodily harm. For ABH, he has committed battery on John by kicking him in the head thus caused him ABH. Lynsky J in R v Miller considered the meaning of ABH to include ‘any hurt or injury calculated to interfere with the health or comfort of the victim’. Therefore, Fred will be criminally liable for the offence of ABH under section 47 of Offences Against the Person Act 1861. Considering the nature of the injuries that John sustained leading to his hospitalization, Fred will also be liable for wounding and GBH under section 18 or wounding or GBH under section 20 of Offence Against the Person Act 1861.

The key physical elements of the offence includes the unlawful wounding or inflicting GBH on another person. The test to be applied in determining the actions of an accused person who inflicts GBH on another is an objective test and not a subjective one. In the same vein, Fred would have been liable for constructive manslaughter of John except that the chain of causation was broken by the painkiller administered which is an actus novus interveniens as per R v Jordan. However, subsequent cases like R v Cheshire have held otherwise and the acts of john would fulfil the physical element for murder. Additionally, the thin skull rule may apply to preclude any denial of liability on the basis of his unknown allergic reaction to the painkiller drug used. The above rule dictates that the defendant who causes injury to the victim must leave him as he is despite the sensitivity or vulnerability that subsequently causes his death. For instance, a person who hits another not knowing that he has a weak heart will still be liable for his death.

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21. Ibid n (18)
22. Clarkson, Christopher MV, Heather M. Keating, and S. R. Cunningham. Criminal law: text and materials. London: (Sweet & Maxwell, 1994)
23. (1956) 40 Cr App E 152
24. [1991] 1 WLR 844

Harry is a police officer who watches as John is beaten for fear of being assaulted. As a general rule the law does not punish omissions or failure to act by citizens. However, there are exceptions to that rule such that actus reus can be committed where duty is imposed by the law. Misconduct in public office is committed when a public officer acting as such wilfully neglects to perform his duty to such an extent that it amounts to abuse of public’ trust without reasonable justification. Harry is a public officer by virtue of Lord Mansfield’s judgment in R v Bembridge which refers to a public officer having ‘…an office of trust concerning the public, especially if attended with profit by whomever and in whatever way the officer is appointed’. In R v Dytham, a police officer who stood by and did nothing as bouncer kicked a man to death was convicted of the offence of misconduct in a public office. On appeal he contended that an offence could not be committed by an omission but his conviction was upheld. Therefore, Harry’s actions fulfil the actus reus of misconduct in public office despite the fact that he feared being assaulted.

Ian does not meet the actus reus of any offence because it is stated that the allergic reaction was rare and undiagnosed. Further, the death of John was caused by the initial action of Fred who kicked him severally in the head causing GBH. In particular, Devlin J in R v Dr Bodkins Adams acquitted the accused doctor of murder after he had administered a lethal dose of painkillers to a patient that was terminally ill. The learned justice held that ‘a doctor is entitled to do all that is proper and necessary to relieve pain and suffering even if such measures may incidentally shorten life’. Therefore, Ian does not meet the actus reus of murder in the present scenario as his actions ae justified by the law.

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25. Ibid n (22)
26. Attorney General's Reference No 3 of 2003 [2004] EWCA Crim 868.
27. (1783) 3 Doug KB 32
28. [1979] QB 722

Question 3

David procured sex from Whitney by drugging her with sedatives. In essence, the use of sedatives which are categorised as Drug facilitated sexual assault (DFSA) which is usually mixed with drinks. The effect of the DFSAs like sedatives is that it takes the ability of the victim to give or deny consent in sexual intercourse. Section 1 of the Sexual Offences Act 2003 states that a person commits an offence of rape if he intentionally penetrates the vagina, anus or mouth of another person with his penis, that person does not consent to the penetration and he does not reasonably believe that the person consents. In light of this definition, David will be criminally liable for rape if Whitney can prove by medical report that there was penetration of her vagina by David’s penis and she did not consent to the sexual intercourse.

Regarding consent, she simply needs to adduce evidence to the effect that she was drugged and was therefore incapable of giving consent. Additionally, the Act implies that David must have not reasonably believed that Whitney had consented to the sexual intercourse. The presumption in sexual intercourse with an adult is that positive and genuine consent must be given by the victim. Dunn LJ held in R v Olugboja that there is a difference between consent and submission and mere submission doesn’t does not always means that there is consent. A genuine consent requires the person giving it must comprehend the nature of the act to which they are consenting and it should not be obtained by fraud.

It follows that the use sedatives rendered Whitney not only incapable of consenting but also of comprehending the nature of the act. This case does not involve intoxication but use of sedatives otherwise the case of R v Bree would have applied where the court held that although a person may be intoxicated to a point of being incapable of giving consent, a person who has voluntarily assumed consent can still be capable of deciding to have intercourse. The definition of consent in section 74 includes mental capacity which means the age and understanding to make a choice about whether to engage in sexual activity at that stipulated time. Given the fact that Whitney had been drugged, she did not have adequate understanding to make the choice contemplated by section 74 of the Act.

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29. Munro Vanessa E, Shifting sands? Consent, context and vulnerability in contemporary sexual offences policy in England and Wales.(2017) Social & Legal Studies 417,440.
30. Ibid
31. [1982] QB 320

Michael engaged in sexual intercourse with Tina after threatening her with a knife. Section 4 of Sexual Offences Act 2003 provides that it is an offence to intentionally cause a person to engage in a sexual activity and the person does not consent to that activity. In essence she would have not had sex with her under the circumstances if he did not have the knife and threaten to use it against her person. Further consent is vitiated in this case by the fact that she had expressly told her to leave the apartment after discovering the pills used to drug Whitney. Therefore, Michael is criminally liable for the offence of rape which can be proved by sexual penetration and lack of consent in the circumstances. Further section 74 of the Sexual Offences Act 2003 provides that a person consents if he agrees by choice, and has the freedom and capacity to make that choice.

Considering the above definition of consent, it is clear that Tina did not have a choice to consent to the sexual intercourse with Michael. If she had any choice, then it was between death and rape. While she had the capacity to consent under the circumstances, she did not have the necessary freedom to give that consent because of the threat to her life by Michael using a knife. These actions negate consent and support the criminal liability of Michael for the rape of Tina.

Prince was able to have sexual intercourse with Cindy after lying to her that he was a famous actor in a TV show that Cindy loved and that he would take her to the TV studios. At first glance Cindy consented to the sexual intercourse with Prince and it is well within section 74 of the Act regarding consent. Nevertheless, this kind of consent was obtained by fraud, deception and false pretence. In consideration of the effect of fraud and consent the courts have in some cases held that fraud it can vitiate consent. In R v Linekar, the appellate court quashed the conviction of the defendant on the basis that the fraud of obtaining sex from a prostitute without payment did not vitiate the consent that had been given by the prostitute. This case suggests that fraud may not necessarily vitiate consent if it was given voluntary. In another case, a singing couch who deceived one of his pupils to have sexual intercourse with him on the pretext that it would improve her singing was convicted of rape since consent was obtained by fraud. The Court of Appeal has also upheld the conviction of a man for rape, he had procured sexual intercourse with the victim by false pretence and blackmail.



Dig deeper into Ambiguities and Legal Precedents in Fear Inducement with our selection of articles.

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32. Cowan Sharon, The trouble with drink: Intoxication, (in) capacity, and the evaporation of consent to sex. (2008) Akron L. Rev. 899.
33. [1995] 2 Cr App R 49

While some deceptions like in relation to wealth will not be enough to vitiate consent, the court has held in Justine McNally v R that deception as to gender can negative consent. Therefore, Prince could easily be criminally liable for the rape of Cindy on the ground that his deception of Cindy regarding his identity negative the consent given for sex. In fact the courts have found that fraud as to the identity of a person and not their attributes vitiates consent. Separately, Cindy realised that she has been infected by gonorrhoea, a sexually transmitted diseases which can reasonably be attributed to the sexual intercourse with Prince. In R v Dica, the court held that a person who knowing that they have are suffering HIV or any other sexually transmitted disease engages in sexual intercourse with another person who contacts the diseases without that other person’s knowledge of the same is liable for causing GBH under section 20 of Offences Against the Person Act 186.

34. R v Williams [1923] 1 KB 340
35. R v Jheeta [2007] EWCA Crim 1699
36. [2013] EWCA Crim 1051
37. R v Richardson [1998] 2 Cr App 200 Case summary
38. [2004] 3 ALL ER 593

Bibliography

Journals

Clarkson CM, Keating HM, and Cunningham SR. Criminal law: text and materials. (Sweet & Maxwell; 1994)

Cowan S, The trouble with drink: Intoxication, (in) capacity, and the evaporation of consent to sex. (2008) Akron L. Rev. 899.

Demetriou S, Not giving up the fight: a review of the Law Commission’s scoping report on non-fatal offences against the person. (2016) The Journal of Criminal Law 188,200.

Donson F, and Catherine O’Sullivan. Building block or stumbling block? Teaching actus reus and mens rea in criminal law. (2016)The Teaching of Criminal Law. Routledge 21, 33.

Dressler J, Strong FR, Moritz ME. Understanding criminal law. (2001)

Hasitha S, and Ayush J, Actus reus and mens rea. (2019).Academia Journal

Munro VE, Shifting sands? Consent, context and vulnerability in contemporary sexual offences policy in England and Wales. (2017) Social & Legal Studies 417,440.

Pegg S, and Anne Davies. Sexual offences: law and context. (Routledge, 2016).

Books

Taylor L, Elliott & Quinn's Criminal Law. (Pearson Higher Ed, 2018)

Pegg S, and Anne Davies. Sexual offences: law and context. (Routledge, 2016).