Criminal case studies

Alice Briggs

P05267215

Illustrate and support your answer by reference to any relevant case law and legislation.

Lee (aged 13) broke into Vera’s house, looking for things to steal. He was filling a bag with some choice items when Vera returned unexpectedly. She caught him by the collar and boxed his ears before telling him to “Get out of my house and go home, you spotty, thieving, little slob”. Enraged by this, Lee pulled out the knife he was carrying and stabbed her twice in the abdomen. Vera was still alive when paramedics arrived and rushed her to hospital, but on religious grounds she refused to accept a blood transfusion, and eventually died through loss of blood.

Lee suffers from a learning disability, and has a mental age of nine. He is very sensitive about his acne, which is very bad.

Consider and explain whether Lee may be guilty :

of robbery, burglary or aggravated burglary
of murder or manslaughter

In what court would he be tried, and why?

Explain why defendants such as Lee can no longer rely on the relatively generous interpretation of the provocation defence adopted by the House of Lords in R V Smith.

1a)

Robbery

S8 Theft act 1968 defines robbery as; if a person steals and he uses force on any person or seeks to put them in fear with the aim to steal. The offence therefore involves all the elements of a theft under s1 Theft Act 1968, a person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it, with the addition of the force used upon the victim for the purpose of stealing. [2]Therefore if Lee stabbed Vera (which he did) in order to steal from her house this would count as robbery, even if he didn’t manage to leave with any stolen goods, alike Corcoran v Anderton, this case concerned bag snatching. The attack had been planned and the victim was pushed from behind. She screamed, held onto her bag and fell to the ground, while the youths ran away. But Lee may have attacked Vera just to make an escape even though it was empty handed. This then would not be robbery.

Burglary

S9 Theft Act 1968 defines the offence of burglary in two parts, s9 (1)(a) where the defendant enters a building as a trespasser with the intent to steal, inflict grievous bodily harm or do unlawful damage to the building or item inside. Also s9 (1) (b) where the defendant steals or inflicts GBH on another after he has entered as a trespasser or attempts to do any of these things. [1,2,3]

An entry can be achieved without actually stepping into the building of question. By placing an arm through the window of said building with the intent to steal once inside can represent an ‘entry’. If the defendant does not intend to commit burglary at the time of entry, only forms this intent after the entry, he cannot be guilty of s9 (1)(a) although he may be guilty of s9 (1)(b). [3]

A building is defined by S9 (3) as an inhabited vehicle or vessel such as caravans, houseboats or ships. Case Law however state that sheds, greenhouses, etc can also be classed as buildings. However apart from vehicles and vessels the building does not need to be inhabited to be the focus of burglary. [3]

Therefore Lee can be convicted of both forms of burglary because he not only trespassed intending to steal from said building (guilty under section 9(1) (a), (see Walkington, in which the defendant entered a store, went behind a counter and looked through the till drawer for money, but the drawer was empty so the defendant shut the drawer and left the store. He was arrested and convicted of burglary because it was held that the ‘staff only’ area of the store which included behind the counter was ‘part of the building’ which the defendant trespassed upon) [2] but Lee became guilty under s9 (1) (b) as well by stealing after entry. He committed a ‘dishonest appropriation of property belonging to another with the intent to permanently deprive them of it’. Lee committed a further offence under s9 (1)(b) by inflicting GBH upon Vera after trespassing.

Aggravated Burglary

This is a preview of the whole essay

Aggravated Burglary

Section 10 Theft Act 1968 states that; ‘a person will be guilty of aggravated burglary if he commits any burglary under s9 and at the time has with him any firearm, or imitation firearm, any weapon of offence or any explosive.’[2] A ‘firearm’ can include an airgun/ pistol, and ‘imitation firearm’ is defined as anything which has the appearance of being a firearm, whether it is capable of being discharged or not.[3] The offence of aggravated burglary is established if the defendant (Lee) merely acquires any of these articles at the time of the offence. The defendant does not have to use the article or even intend to use them; just having the item on them is enough for conviction. (See Stones 1989 & O’Leary 1986; in Stones 1989 the defendant had a household knife in his ownership, he claimed that this was for self-defence against ‘some lads’. The prosecution claimed the knife was intended to cause injury. The Court of Appeal agreed that it wasn’t necessary to prove whether the defendant had intended to use the knife but because he had it on his person that was enough for a conviction of burglary. In O’Leary 1986, the defendant hadn’t been armed when he entered the building but had taken a knife from a kitchen drawer. His conviction under s10 withstood as he the knife when he decided to steal. [2]

When he entered the house Lee was then guilty of burglary under s9 (1)(a). He then becomes guilty of burglary under s9 (1)(b) when he starts to steal as a trespasser. But Lee only becomes guilty of aggravated burglary under s10 Theft Act 1968 because he is carrying a concealed knife, even if he didn’t use the knife on Vera he would still have been convicted of aggravated burglary because it could have been used to threaten or put fear into Vera.

1b)

Murder

Murder is defined as the ‘unlawful killing of another living human being with malice aforethought (i.e. with intent to kill or intent to cause GBH) under the queens peace.’ [3] The prosecution must prove that the defendant had unlawfully killed another living human being. If the defendant had killed in self defence or in the prevention of a crime taking place then this is not unlawful and therefore could not be murder.

The moment of death has to be taken into account, because it isn’t always immediate. Death is a continuous process, in the sense that parts of our bodies are dying at different times. Brain stem death has now been accepted as the official determination of death.

The Royal College of Physicians defined brain stem death as, ‘” the irreversible loss of capacity for consciousness combined with the irreversible loss of the capacity to breathe.”’ A patient that is in a persistent vegetative state isn’t suffering from brain stem death as they are not actually dead, and still have brain activity. [3] Similar to the case of Airedale National Health Trust v Bland 1993. This case concerned Tony Bland a young man who had been irreversibly damaged in the Hillsborough disaster. He had been put on life support but didn’t show any improvement after three years. In this case the House of Lords agreed that the parents of Bland and the NHS trust involved wouldn’t face criminal liability for turning of the life support machine to end his life. At the time Lord Goff argued that ‘” discontinuation of life support is, for the present purposes, no different from not initiating life support in the first place.”’[2]

In the case of Lee applying the law we can say that there was an ‘unlawful killing of another’. But Lee did not necessarily intent to kill Vera, it was due to, Lee defending himself against Vera as she grabbed him, and he also knew that she was going to call the police. But he also attacked Vera because he had been provoked, by Vera’s taunts, as he was sensitive about his acne. This defence of self defence would mean that Lee’s actions were not unlawful and therefore would not consist as murder.

Manslaughter

There are two main varieties of manslaughter. Involuntary manslaughter and voluntary manslaughter.

Involuntary manslaughter is where the defendant unlawful kills without a proven intention to kill the victim or cause serious harm to the victim, but nevertheless acts.

For example, if the defendant punches the victim only once but the victim falls and hits their head, and in doing so they die. There is no evidence that the defendant intended to kill or cause any harm.

Voluntary manslaughter is where the defendant kills with the intention to kill or cause serious harm towards the victim. But the defendant kills under what the law states as mitigating circumstances. This can enable the defendant to avoid their conviction of murder and be convicted of manslaughter if the mitigating circumstances are proven.

Mitigating circumstances may include the intentional killing as a result of one of the following:

a loss of control through some sort of provocation
A mental abnormality that amounts to diminished responsibility.
A mutual suicide pact.

In the case of Lee by applying the law, he would be convicted of voluntary manslaughter because he did to some point intend to cause some harm or kill. This is because he entered the house with a weapon; he took the weapon to the house with him. If however while at the house he had picked up the weapon, anything that can be used with force to cause harm, then his sentence may have been reduced slightly because it had been on impulse that he used the weapon on the victim.

Mitigating circumstances are involved with Lee’s case. Lee attacked Vera because there was a loss of control through provocation. Vera had provoked Lee by taunting him by calling him a ‘”spotty, thieving, little slob,”’ and as he was sensitive about his appearance, this would caused any previous anger he already had about himself to make him lash out towards Vera.

Provocation was developed by judges in the cases in which a defendant being accused of murder had been provoked into killing another human being after ‘” being subjected to a violent physical attack.”’ [1] This meant, at common law, that an act that was provocative in nature had taken place; words were not enough for provocation as a defence. This can be seen in cases such as Maddy (1671) 2 Keb 829, in which as man found his wife committing adultery. He killed her and her lover. Also Fisher (1837) 8 C&P 182, a father killed another man who he had discovered in the act of sodomy with his son. Fisher was entitled to the defence of provocation.

Lee also has the defence of a mental abnormality that amounted to diminished responsibility. Lee suffered from a learning disability which gave him the mental age of nine although he was thirteen. The fact that he has a mentality of a nine year old may have been a trauma within his life, he could have been teased which caused him to have anger.

Because of Lee’s mental disability and that he had been provoked would constitute as a voluntary manslaughter charge.

In the case of Lee, he would be tried at a youth court. This is because he is under the legal age to be tried at other courts such as magistrates or crown. For Lee to be tried at other said courts he would have to be over 18 years old. If he was already over the age of 18 when he committed the crime then he would probably go to the magistrate’s court first for formalities such as parole. But then the actual trial would take place in the crown because the crown court deals with mainly cases involving death and sexual assault.

Provocation and the ‘reasonable man’ has been a hardly debated issue within law.

The traditional view of provocation is that a provocative act or behaviour must take place, such conduct that might cause a reasonable person to lose their self control and act the same way as the defendant had done.

In the case of Smith, the House of Lords watered down the standard set out in Camplin. The requirements of the average, normal person were replaced with a wider test which simply asked: ‘could the defendant in his situation have reasonably been expected to control his reaction?’

This decision was then criticised although it was thought to have settled the law. But then the Privy Council in Jersey v Holley [2005] UKPC 23 rejected the conclusion in Smith, it was insisted that the reasonable man test be reinstated.

‘”Would a reasonable man, or in this case, boy, with the same characteristics as the accused have acted in this way?”’ This is what the Law Lords believed in the case of Camplin, DPP v Camplin [1978] AC 705.

Camplin was a fifteen year old boy, who had been drinking and ended up at the house of a middle aged man. At the house the boy was forcibly subjected to a homosexual assault. The older man had laughed and taunted the boy when he had expressed his shame at what had happened. Because of these taunts the boy attacked the man with a heavy chapatti pan and killed him. Camplin was convicted of murder.

The House of Lords said in Camplin that while certain of the boy’s characteristics should not be taken into account for policy reasons, such as his drunkenness and excitability. Other characteristics such as Camplin’s young age could be taken into account. The question for the jury then was, would a reasonable youth of fifteen, in similar circumstances, act as the defendant did. Because this was a possibility, the appeal against the murder conviction was allowed.

In Smith (Morgan) [2000] UKHL 49 AC 146 the defendant and the victim, James McCullagh were long standing drinking partners, both alcoholics. During an argument over an alleged theft of his tools, Smith became increasingly furious at McCullagh’s denial of the involvement. He then seized a kitchen knife and stabbed his friend to death. At his trial, he put forward the defences of both diminished responsibility and provocation. He claimed that medical evidence would show that he was suffering from a depressive illness that had damaged substantially his capacity for self control. [1]

The trial judge directed the jury that, with regard to s3 and the provocation plea, the characteristics of mental impairment could only be brought forward when deciding on the gravity of the provocation; they were not relevant to the reasonable man’s loss of self control. Smith was found guilty of murder. The Court of Appeal disagreed with the Crown Court and substituted the verdict the murder charge to a verdict of manslaughter.

The House of Lords agreed that the trial judge had made an error when he told the jury that the effect of the defendant’s depression on his ability of self control was not actually material. [1]

While a murder conviction in Smith was overturn, and manslaughter substituted because of misdirection, the Law Lords made it clear that more existence of such a characteristic would not itself excuse the defendant’s behaviour. [1]

Lord Slynn stated: ‘”it was not enough for the accused to say “I am a depressive, therefore I cannot be expected to exercise self control.”’ The jury must ask if the defendant has exercised the degree of self control to be exercised by someone in his situation.

The final solution for this debate on provocation was settled in Holley, Attorney-General for Jersey v Holley [2005] UKPC 23. The defendant was a chronic alcoholic who killed his alcoholic partner with an axe after she had taunted him about many things, one including having sex with another man. The issue was if the defendants disease of chronic alcoholism should be taken into account even though the taunts didn’t in any way relate to this. it basically lowered his level or self control generally and made him more prone to lash out at any provocation. Under Smith, the jury would have been given the chance to take into consideration his alcoholism but the decision made in Holley was to the contrary- the alcoholism was irrelevant. [2]

Considering Smith for the case of Lee, he would have been able to rely on provocation as a defence and his charge would be reduced to manslaughter. This is because he had the defence of his mentality, he was easier to provoke or his self control was easier to break. And therefore he would be probable to lash out. The jury wouldn’t however seen his acne and other appearance as a defence of provocation because on a reasonable youth of 13 acne is not unusual, it is a common factor in nearly all teenagers.

However, because the conclusions made in Smith have been abandoned, Lee is not able to rely on provocation as a defence. This is because according to Holley Lee’s mentality and appearance are irrelevant to the case material. He still killed another living human being, whether he was sensitive about his appearance or he was provoked.