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Criminal Law - Problem Question - Homicide

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Assignment No.2

"Alan, a soldier, was home for the weekend. He possessed several rifles. In a drunken argument with his father, Brian, as to who was the better shot with a gun, Brian threatened to break Alan's nose. Alan was afraid of his father but he was the first to load one of the rifles and, a little wobbly on his feet, took aim at Brian and, in haste, shot and injured him. Feeling shocked, Alan fired a second shot at an expensive vase which shattered. Alan managed to call for an ambulance but the ambulance was delayed by a freak storm. Eventually, Brian arrived at hospital where his injuries were treated. After several days he developed an infection in the wound. He was treated by Doctor Chris with an antibiotic to which Brian was allergic. The next day, seeing that he was no better, Doctor Chris administered more of the same antibiotic to Brian in extremely large doses. That night, weak, delirious and close to death, Brian jumped out of the window when he saw the doctor approaching. He fell two storeys to the ground and was killed.

Alan confessed to the police that he had lately been hearing voices and believed that his father Brian was the devil. He had not wanted to kill but had wanted to frighten his father. Doctor Chris confessed to the police that he was diabetic and had not had time to eat properly after taking his insulin.

Discuss the liability of the following:

1. Alan for the death of Brian.

2. Alan for the destruction of the vase.

3. Doctor Chris for the death of Brian.

Alan for the death of Brian

The first issue here is whether Alan is, prima facie, guilty of homicide, either murder or manslaughter, and, if he is, whether he will be able to rely on the defences of insanity, intoxication, provocation or diminished responsibility.

The actus reus of murder and manslaughter, both common law offences, was given by Coke in the seventeenth century: "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"1. There are four elements to this which must be proven by the prosecution beyond all reasonable doubt.

The first element of the actus reus, the unlawful killing, is satisfied in Alan's case because he does not have any justification, such as self-defence, which would render the killing lawful. The second element, causation, constitutes both factual and legal causation. In order to establish factual causation, the 'but for' test is applied (White2). Since Brian had not died but for Alan's act of shooting at him, Alan has factually caused Brian's death.

The next aspect which needs to be examined is legal causation. For this, there needs to be an unbroken chain of causation which will solely be broken by a novus actus interveniens of free, deliberate and informed nature as for example in Rafferty3. It is however not easy to break a chain of causation (Pagett4). A novus actus interveniens usually occurs through a third party but can theoretically also occur through a natural cause. Thus, not only the doctor's wrong medical treatment, but also the delay of the ambulance as a result of a freak storm could constitute an intervening act. The latter is however unlikely to have broken the chain of causation. The more relevant event is the administration of the antibiotic to which Brian was allergic. A case with very similar facts, Jordan5 held that where the doctor's act is 'palpably wrong', the chain of causation will be broken. Doctor Chris' act certainly worsened Brian's condition but Alan need not be the sole cause. Important is whether the wounds from Alan's shot were still an operating and substantial cause after Brian had been in hospital for several days. In Smith6 and Cheshire7, Jordan was distinguished and was said to be a case on special facts. Accordingly, apart from a completely overwhelming event, the courts have demonstrated a distinct reluctance to hold that an intervening act exists (McKechnie8) and the court might consequently hold that Chris' act did not break the chain of causation.

Furthermore, it must be considered whether the victim's act of jumping out of the window broke the chain of causation. The general rule is that the defendant needs to take his victim as he finds him (Blaue9), meaning that the victim's unforeseen physical or psychological abnormalities will not prevent the defendant's liability. However, in Dear10 it was held that the victim committing suicide will break the chain of causation, as long as it is not connected to the defendant's offence. Whether Alan is the legal cause of Brian's death is debatable as these two events might have broken the chain of causation. It will however further be considered whether Alan satisfies the other elements of the homicide offences in case the court finds that the chain of causation was not broken.

Certainly the third element of the actus reus of homicide, that the victim must be a person in being, is satisfied since the only situations where this does not apply are before birth (AG's Reference (No.3 of 1994)11) or after brain death (Malcherek, Steel12). Moreover, the last element of the actus reus, being 'under the king's peace', is fulfilled as this always applies apart from under war-time conditions.

It now needs to be established whether Alan has the required mental element, mens rea, for either homicide offence. Murder has the mens rea of the highest culpability: intention to kill or to cause grievous bodily harm. There is direct intention, which is unlikely to apply here because Alan did not desire his father's death, and oblique intention. The latter is defined by a subjective test, arising from Nedrick13 and Woolin14. The defendant must himself foresee death or grievous bodily harm as a virtual certainty. Despite claiming to only want to frighten Brian (Hyam15), Alan evidently aimed at his father and being a soldier and possessing several rifles, Alan probably knew that seriously injuring Brian was a virtual certainty.

If Alan does not fulfil the requirements for oblique intention, he might still have the mens rea for reckless manslaughter. The test for recklessness is subjective (Cunningham16) and consists of two elements: Firstly, did the defendant foresee the possibility of the harmful consequence and secondly, was it unreasonable for the defendant to take the risk. In this subjective approach to mens rea, account can be taken of the defendant's individual characteristics (Stephenson17). Alan had apparently been hearing voices and thought that Brian was the devil. However, this did not lower his ability to perceive a risk, even though his perception was deluded about who he was about to injure. Whether Alan has committed murder or manslaughter is difficult to assess because the line between oblique intention and recklessness very fine. Academic commentators such as Professor Norrie have expressed their dissatisfaction in relation to this area of the law, conveying that the view from Woollin does not "constitute the last word on indirect intention for murder"18.

Insanity might be put forward by the defence since Alan had lately been hearing voices. The test for insanity, arising from M'Naghten's Case19, consists of three elements, each of which needs to be proved by the defendant on a balance of probabilities. A successful plea of insanity would result in a hospital order20. The first element of the test is that there must be a disease of the mind, an internal cause of involuntary action (Bratty21, Sullivan22). Hearing voices and believing that his father was the devil would constitute a disease of the mind. The second element, that the defect must affect the cognitive faculties of memory, reason and understanding (Clarke23), probably also applies as Alan's perception was deluded. It is the last element, the cognitive tests, where the defence is likely to fail since the defendant must not know that what he is doing is legally wrong (Windle24). Since Alan probably still knew that murder is against the law, the defence is likely to fail.

A further relevant defence is intoxication, as it applies to crimes of specific intent, such as murder, because it may negate mens rea (Majewski25, Kingston26). If Alan did not form the mens rea required for murder due to intoxication, then the defence will apply, reducing his conviction to manslaughter. However, if Alan formed the relevant mens rea despite intoxication, he would not be able to use the defence (Sheehan27).

If charged with murder, Alan may rely on the partial defence of provocation on the grounds of the verbal threat by Brian to break Alan's nose. The law governing provocation is partly statutory (s.3 Homicide Act 1957) and partly common law. Provocation is the sudden and temporary loss of self-control, rendering the defendant, momentarily, not master of his own mind (Duffy28). It must be established that Alan lost his self-control at the provocation of something done or said (Doughty29) and that a reasonable man would have lost his self-control at such provocation. Any characteristics relevant to the gravity of the provocation can be attributed to the reasonable man (Holley30) but in determining the standard of self-control, the only relevant characteristics are age and sex (Camplin31). Since it is not reasonable for a man of Alan's age to loose his self-control and shoot because of provocation of that kind, he will not be able to use provocation as a defence.

Alternatively, Alan may plead diminished responsibility. The law on this defence is governed primarily by statute (s.2 Homicide Act 1957) and it is only a defence to murder32 with a successful plea resulting in a manslaughter verdict. For this defence to succeed, the defendant needs to prove on the balance of probabilities that he has an abnormality of the mind from causes specified in the legislation, meaning a state of mind which the reasonable man would term abnormal (Byrne33) and that his abnormality of mind substantially impaired his mental responsibility. This defence will probably succeed, however, if Alan intends to rely on diminished responsibility and intoxication simultaneously, he will have to prove that he would still have shot Brian under diminished responsibility without being intoxicated (Dietschmann34).

It is not clear whether Alan is guilty of homicide as this depends on whether he is the legal cause of Brian's death. If Alan is convicted of murder, it is likely that he will be able to use either intoxication or diminished responsibility as defence. However, if he is convicted of manslaughter, it is unlikely that any defence will succeed. If Alan is not found guilty of homicide at all, then he will probably be charged with causing grievous bodily harm with intent35 or malicious wounding36.

Alan for the destruction of the vase

Here, it needs to be discussed whether Alan is liable for criminal damage contrary to s.1(1) of the Criminal Damage Act 1971: "A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence"37. All four elements to the actus reus of the offence are present in relation to Alan's act as he did cause damage to property by shooting at the expansive vase which then shattered and the act was unlawful. It is not entirely clear from the facts that the property, the vase, belonged to another because Alan had been home for the weekend, but it is more likely that the vase belonged to his parents.

The test for the required mens rea for criminal damage, intention or recklessness to cause damage, is subjective according to Cunningham. Alan did not directly intend to destroy the vase but he certainly acted recklessly by shooting. The former objective test according to Caldwell38 was, in relation to criminal damage, overruled by R v G39 after having been heavily criticised for its "unremittingly harsh and clearly unjust implications"40 for cases involving children and the mentally ill (Elliott41, Coles42, Bell43) who often lack foresight of criminal damage.

The defendant's characteristics and foresight are now taken into account when assessing culpability. This approach is an extension of Lord Keith's dictum in Reid44: the possibility of having exceptions to the objective test where ignorance of the risk arose due to incapacity such as age or mental deficiency. As already mentioned, Alan was not of a sound mind, however, it seems that his mental condition did not prevent him from perceiving a risk of criminal damage so that he is liable.

Doctor Chris for the death of Brian

It needs to be further investigated whether Chris is guilty of gross negligence manslaughter since he administered large doses of antibiotics to which Brian was allergic.

The test for gross negligence manslaughter, defined in Bateman45 and Adomako46, consists of the following elements: The defendant must have been in breach of a duty of care under the ordinary principles of negligence, the negligence must have caused death, and it must, in the opinion of the jury, amount to gross negligence. As Brian's doctor, Chris has a duty of care towards Brian which is breached when he repeatedly administers an antibiotic to which Brian is allergic.

Whether Chris' negligence legally caused Brian's death is arguable because Brian might have jumped out of the window anyway. The difference between Brian's suicide in relation to Alan's liability and in relation to Chris' is that it can be argued that Brian's suicide was actually related to Chris' actions because it was when Brian saw the doctor approaching that he jumped out of the window, potentially due to fear. If Brian's suicide constituted a novus actus interveniens, then Chris will not be liable of manslaughter; if it is found that Doctor Chris caused the death, it will be for the jury to decide whether his conduct had departed from the proper standard of care involving a risk of death so as to be judged criminal.

Should Chris be convicted of gross negligence manslaughter, he might be able to rely on the defence of automatism. He is diabetic and had, on the day in question, taken insulin but not eaten suitably, meaning that he was hypoglycaemic which is in law classified as automatism, a justificatory defence. However, according to Quick47, self-induced incapacity will not excuse nor incapacity which could have been reasonably foreseen by the defendant since this would be recklessness. Therefore, the question of whether a defendant knew of the risk of hypoglycaemia is crucial. Since Chris is in the medical profession it will probably not be difficult for the prosecution to prove that he was aware of the risk of hypoglycaemia occurring. Furthermore, the fact that he told the police that he had taken insulin but failed to eat shows that he was aware of his hypoglycaemia.

It is therefore likely that Doctor Chris will be convicted of manslaughter and he will probably not be able to rely on the defence of automatism. Because of public policy, gross negligence manslaughter convictions in medical cases are relatively rare since the state would otherwise have to convict numerous doctors. However, recently prosecutions of doctors have occurred more frequently due to the public awareness of patient safety48.

Bibliography

Kimel, Dori. Inadvertent recklessness in criminal law. LQR 2004, 120(Oct), 548-554

Loveless, Janet. 2008. Criminal Law. Text, Cases and Materials. Oxford: Oxford University Press.

Norrie, Alan. After Woollin. Crim LR 1999 532 July

Ormerod, David . 2006. 9th edn. Smith & Hogan Criminal Law, Cases and Materials. New York: Oxford University Press.

Ormerod, David . 2008. 12th edn. Smith & Hogan Criminal Law. New York: Oxford University Press.

Quick, Oliver. Prosecuting medical mishaps. 156 NLJ 394, 10 March 2006

Table of Cases

AG for Jersey v Holley [2005] UKPC 23

AG's Reference (No.3 of 1994) [1997] 3 All ER 936

Bratty v AG of Northern Ireland [1963] AC 386

DPP v Majewski [1977] AC 443

Elliott v C (A Minor) [1983] 1 WLR 939

Hyam v DPP [1974] 2 All ER 41

R v Adomako [1995] 1 AC 171

R v Bateman (1925) 19 Cr App R 8

R v Bell [1984] 3 All ER 842

R v Blaue [1975] 3 All ER 446

R v Byrne [1960] 2 QB 396

R v Caldwell [1982] AC 341

R v Camplin [1978] 2 All ER 168

R v Cheshire [1991] 3 All ER 670

R v Clarke [1972] 1 All ER 219

R v Coles [1995] 1 Cr App R 157

R v Cunningham [1957] 2 QB 396

R v Dear [1996] Crim LR 595

R v Dietschmann [2003] UKHL 10

R v Doughty (1986) 83 Cr App R 319

R v Duffy [1949] 1 All ER 932

R v G [2004] 1 AC 1034

R v Jordan (1956) 40 Cr App R 152

R v Kingston [1994] 3 All ER 353

R v Malcherek; R v Steel [1981] 1 WLR 690

R v McKechnie (1992) 94 Cr App R 51

R v McNaghten (1843) 8 ER 718

R v Nedrick [1986] 3 All ER 1

R v Pagett (1983) 76 Cr App R 279

R v Quick and Paddison [1973] 3 All ER 347

R v Rafferty (Andrew Paul) [2007] EWCA Crim 1846

R v Reid [1992] 1 WLR 793

R v Sheehan and Moore (1975) 60 Cr App R 308

R v Smith [1959] 2 QB 35

R v Stephenson [1979] 1 QB 695

R v Sullivan [1984] AC 156

R v White [1910] 2 KB 124

R v Windle [1952] 2 QB 826

R v Woollin [1999] 1 AC 82

1 Ormerod, 2008: 473

2 R v White [1910] 2 KB 124; (in Loveless, 2008: 671)

3 R v Rafferty (Andrew Paul) [2007] EWCA Crim 1846; (in Loveless, 2008: 69)

4 R v Pagett (1983) 76 Cr App R 279; (in Loveless, 2008: 70)

5 R v Jordan (1956) 40 Cr App R 152; (in Loveless, 2008: 80)

6 R v Smith [1959] 2 QB 35 (in Loveless, 2008: 78)

7 R v Cheshire [1991] 3 All ER 670 (in Loveless, 2008: 79)

8 R v McKechnie (1992) 94 Cr App R 51 (in Loveless, 2008: 77)

9 R v Blaue [1975] 3 All ER 446; (in Loveless, 2008: 82)

10 R v Dear [1996] Crim LR 595; (in Loveless, 2008: 83)

11 AG's Reference (No.3 of 1994) [1997] 3 All ER 936; (in Loveless, 2008: 117)

12 R v Malcherek; R v Steel [1981] 1 WLR 690; (in Loveless, 2008: 78)

13 R v Nedrick [1986] 3 All ER 1; (in Loveless, 2008: 106)

14 R v Woollin [1999] 1 AC 82; (in Loveless, 2008: 108)

15 Hyam v DPP [1974] 2 All ER 41 (in Loveless, 2008: 102)

16 R v Cunningham [1957] 2 QB 396; (in Loveless, 2008: 122)

17 R v Stephenson [1979] 1 QB 695; (in Loveless, 2008: 123)

18 Norrie, A. After Woollin. Crim LR 1999 532 July

19 R v McNaghten (1843) 8 ER 718; (in Loveless, 2008: 331)

20 Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, s.3

21 Bratty v AG of Northern Ireland [1963] AC 386 (in Loveless, 2008: 322)

22 R v Sullivan [1984] AC 156 (in Loveless, 2008: 333)

23 R v Clarke [1972] 1 All ER 219 (in Loveless, 2008: 337)

24 R v Windle [1952] 2 QB 826 (in Loveless, 2008: 338)

25 DPP v Majewski [1977] AC 443; (in Loveless, 2008: 354)

26 R v Kingston [1994] 3 All ER 353; (in Loveless, 2008: 361)

27 R v Sheehan and Moore (1975) 60 Cr App R 308 (in Loveless, 2008: 353)

28 R v Duffy [1949] 1 All ER 932 (in Loveless, 2008: 272)

29 R v Doughty (1986) 83 Cr App R 319 (in Loveless, 2008: 271)

30 AG for Jersey v Holley [2005] UKPC 23 (in Loveless, 2008: 285)

31 R v Camplin [1978] 2 All ER 168 (in Loveless, 2008: 279)

32 Homicide Act 1957, s.2(1)

33 R v Byrne [1960] 2 QB 396 (in Loveless, 2008: 260)

34 R v Dietschmann [2003] UKHL 10 (in Loveless, 2008: 263)

35 Offences Against the Person Act 1861, s.18

36 Offences Against the Person Act 1861, s.20

37 Ormerod, 2008: 981

38 R v Caldwell [1982] AC 341; (in Loveless, 2008: 125)

39 R v G [2004] 1 AC 1034; (in Loveless, 2008: 129)

40 Kimel, Dori. Inadvertent recklessness in criminal law. LQR 2004, 120(Oct), 548-554

41 Elliott v C (A Minor) [1983] 1 WLR 939; (in Loveless, 2008: 128)

42 R v Coles [1995] 1 Cr App R 157 (in Loveless, 2008: 132)

43 R v Bell [1984] 3 All ER 842 (in Loveless, 2008: 128)

44 R v Reid [1992] 1 WLR 793 (in Ormerod, 2006: 149)

45 R v Bateman (1925) 19 Cr App R 8 (in Loveless, 2008: 141)

46 R v Adomako [1995] 1 AC 171; (in Loveless, 2008: 142)

47 R v Quick and Paddison [1973] 3 All ER 347; (in Loveless, 2008: 347)

48 Quick, Oliver. Prosecuting medical mishaps. 156 NLJ 394, 10 March 2006

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On the whole, a fairly thorough examination of the law on murder. Better application of medical treatment in the context of causation, to the facts, is needed here. The law on provocation is also now outdated; the new defence of "loss of control" applies. 4 stars.

Marked by teacher Edward Smith 25/03/2012

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