Criminal problem question

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In order to establish the possible criminal liability of Joe and Keith it is necessary to identify the possible offences and the elements of those offences to determine whether either or both are culpable of the respective offences.

Looking at the scenario as a whole the area of law we are mainly dealing with is homicide, but I will explore and support the possible offences in order of chronology.

In this situation Keith elicits help from Joe to kill his wife. They discuss a fee and a means of payment. At this point both Joe and Keith are criminally liable for the statutory offence of conspiracy as set out in Section 1(1) of the Criminal Law Act 1977. The ultimate intended consequences of their agreement was that if their ‘conduct shall be pursued’ (Criminal Law Act 1977) it will end with ‘commission of the offence’ (Criminal Law Act 1977). The ‘agreed course of conduct’  (Allen, Michael Textbook On criminal Law, 2007) principle was supported in R v Siracusa (1990) and it also established through their method of interpretation that as with this scenario the defendant would not necessarily have to or intend to play an active part in the actual commission of the offence. Up to this point there was some confusion as the criminal liability in relation to conspiracy when one part did not intend to play an ‘active role in the commission of the substantive offence’. Now however following R v Siracusa (1990) and the ‘highly persuasive’ Privy Council, Yip Chiu-Cheung v R [1994] cast further doubt on Lord Bridge’s dicta in Anderson [1986].It is now considered that participation ‘can be active or passive. However Anderson [1986] is a House of Lords case, and although due to the privy Council ruling it is likely that if a similar case reached the House it would be distinguished it is still good authority. Another factor is that it does not matter whether or not the ‘commission of the offence or any of the offences’ (Criminal Law Act 1977) are possible or whether the offenders go on to commit the offence. They are criminally liable as long as there is an ‘agreement between two or more parties’ and communication of this, and the supposed consequence are in ‘accordance with their intentions’. This reflects both the actus reus and the mens rea aspects of the statutory conspiracy. The fact the conspiracy is a continuing offence is important as the mere fact that Keith did not fulfill his part of the deal by giving Joe the funds does not mean that he is not guilty as the offence, it is committed as soon as there is an agreed course of action. It is important that there is an awareness of the ‘intended consequences’ as ‘liability maybe limited to these’. Therefore there would be some difficulty in arguing conspiracy in relation to the unforeseen death of Tracey at that stage. There would however be a substantial argument of conspiracy to murder Jennifer due to the aforementioned argument and that ‘playing some part in’ the conspiracy is seen as ‘continuing to concur in the activity of another or failure to stop the unlawful activity’ (Allen, 2007, p282).

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The second part of the scenario sees the consequences set in motion. Joe’s intent was to kill Jennifer however he inadvertently kills Tracey. ‘Murder is the ‘unlawful homicide committed with malice aforethought’ (Allen, 2007). But if Joe did not have the required mens rea for murder it is possible to seek criminal liability for constructive manslaughter. Since Cunningham [1982] intention to cause Grievous Bodily Harm as well as kill is a necessary element to commit murder as well as certainty (R v Woolin [1998]). If the act and malice aforethought are not present then the party or parties cannot ...

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