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 be criminally liable for murder but if there is a lesser degree of ‘certainty’ (R v Woollin). In this scenario it suggests that although Joe’s requisite mens rea element is not for Tracey, there is however a direct intention to kill Jennifer. The prosecution could argue that he would be criminally liable for the murder using the doctrine of transferred malice. Transferred malice in this scenario would be where you have the intention to kill or cause Grievous Bodily Harm to one person, but inadvertently kill another. It is argued that defendants in these circumstance have caused the ‘actus reus’ aspect of the ‘murder and do intend to kill it is just the incorrect victim’. This is also supported by case law in Latimer (1886) and subsequently by the Attorney General reference (No. 3 of 1994). The intent aspect of the crime is transferred from the intended to the actual victim therefore a mistake does not negate criminal liability for transferred malice. In this scenario the cause is not ‘sufficiently far removed from the intended mode’ and there is a direct intent which is transferred therefore causation and Woollin [1998] do not need to be considered but suffice to say Joe initially created the danger and the death happened as a result of that danger. Using this method the lesser degree of certainty required or the ‘commission of the unlawful act’ (Allen, Michael 2007)
It could also be argued that at that stage Joe is also criminally liable for the attempted murder of Jennifer. This is now a statutory offence in the form of the Criminal Attempts Act 1981. It provides that a person who ‘does an act which is more than merely preparatory to the commission of the offence’ is ‘guilty of attempting to commit the offence’. Joe’s actions in the scenario, of plotting Jennifer’s’ movements, being aware of her vehicle type, the time she would be driving past and being in possession of a bomb can clearly be seen as embarking upon a criminal enterprise but maybe as in R v Campbell could be seen as mere preparation but the pressing of the detonator itself could be sufficient and significant in proving ‘more than mere preparatory’. (Allen Michael, 2007 p296)This was supported in R v Jones in which the act up until the event were considered preparatory but the pointing of the gun was considered ‘sufficient evidence of an attempt’ (Childs, Penny Criminal Law 2008)
Even not taking into consideration complicity it could be argued that Keith is criminally liable for incitement to murder contrary to section 4 of the Offences against a Person Act 1861. Incitement is ‘encouraging or pressurising someone to do a crime. But an important aspect is mens rea element. The accused must intend for the person encouraged to commit the crime. The inciter will therefore become an accessory to the offence committed including possible foreseeable consequences that are related to the crime. In this case he enlists Joe’s services to kill his wife, he discusses a fee and an instalment arrangement. The requirement is that it must be ‘more than mere suggestion’ (Childs, Penny, Criminal Law 2008).This is supported by case law. In R V Fitzmaurice 1983 the monetary aspect was seen as key to the matter of persuasion and ‘being more than mere suggestion’ (Childs, 2008). The prosecution could argue incitement to murder. Therefore Keith would satisfy both the actus reus and mens rea elements of incitement. His non payment of the agreed fee would not mean that he would escape liability for incitement or conspiracy as he would have to expressly countermand or ‘revoke his encouragement’ (Allen, 2007) before the offence is committed or the more than preparatory even in the case of attempts to not be criminally liable for the offence . This is consistent with Becerra (1975) where a ‘change of heart’ (Childs, 2008) was not considered sufficient, more was required to constitute a withdrawal. There is also an argument for commission by omission if Keith is criminally liable for incitement to murder it could be argued that his failure to act in a situation he created could constitute an offence. The non payment of the agreed sum would not be sufficient to be considered a withdrawal as previously mentioned but after the agreement it could be argued that there is a duty to act. This however would be difficult and ‘it would be for the judge to rule whether the facts were capable of giving rise to a duty’ (Allen, 2007).
The third part of the scenario sees Joe stepping up his efforts. His actions of following her out of the gym and pulling out and firing a gun again would be sufficient argument of more than preparatory. Both that and the subsequent pulling out of the knife and stabbing of Jennifer not only satisfies the proximity test in which acts immediately connected with it satisfy that criteria but also satisfy a key principle in R v Whybrow in that the offender intends ‘to bring about the any results specified in the full offence’ (Childs, 2008). The actions within the scenario clearly support this.
Joe then attempts to dispose of the body but she drowned because unbeknown to him she was still alive. The prosecution could argue that there is a ‘coincidence of actus reus and mens rea’. Joe at the time of the initial act had the mens rea for murder but at the time of her death he believes he is disposing of a dead body. Therefore Joe would not have the mens rea element for the ‘commission of each act’ (Allen, 2008), only the preceding acts. In the scenario it is clear that death ensued from the final act. The courts however in similar circumstances have been satisfied if ‘the accused had mens rea at some stage during the course of events. This is consistent with the ‘preconceived plan to kill’ (Childs, 2008) Thabo Meli [1954] which mirrors the scenario in that the victim ultimately died not from the blow to the head but from exposure when the assailant had disposed of the body believing him to be dead. Just like Joe the accused was ‘undoubtedly guilty of attempted murder’ (Allen, 2008 p 50) but the obiter dicta of the court of appeal in R v Church [1966] approved the ‘policy decision’ (Allen, 2008 p50) that ‘it was sufficient for a conviction if the conduct constituted a series of acts that culminated in her death’ (Allen, Textbook, 2008). Using this argument and the approving case law the prosecution could argue that there is sufficient proof of Joe’s criminal liability for Murder. Another approach is using factual and legal causation. There is clearly a direct intent to kill. But as she died as a result of drowning and not the wounds inflicted by Joe it is necessary to prove ‘that his act or omissions caused the prohibited consequence’ (Allen, 2008 p33). The ‘but for’ test in R v White establishes factual causation and that ‘the consequence would not have occurred as and when it did but for the accused conduct’ This was supported by R v Padgett 1983 which also established that the accused conduct needn’t be the only cause but it must ‘more than minimally contribute to it’ (Childs, Criminal Law p7). The death in legal causation ‘must be attributable to the culpable act’ (Allen, 2008 p34) and in the scenario it is. There is no intervening act and Joe’s act is a major cause in the death of Jennifer. Here again it could be argued that the prosecution would have sufficient proof for a murder conviction.
I would surmise that criminal liability for Keith in relation to conspiracy contrary to section 1.1and incitement to murder contrary to section 4 Offences Again a Person Act 1861 can be established and therefore there is sufficient proof for a conviction. It can also be satisfied that Joe is criminally liable for all of the aforementioned offences. I believe if murder could not be established however using the coincidence of actus reus and mens rea, or legal causation then there is also sufficient proof for attempted murder. Conversely case law such as R v Church [1966], R v Le Brun [1991], and arguably academics support my conclusion that murder is possible through a ‘series of acts’ (Allen, 2007) where the mens rea is not present at the culminating actus reus, but is during the course of the preceding linked crime. Using the ‘transaction principle for Jennifer and the doctrine of transferred malice for Laura I would argue that there is criminal liability for murder.
Word Count 1991
Referencing Section
Childs, Penny and Dobson, Paul (2008) Criminal Law, Sweet and Maxwell
Allen, Michael. (2007).Textbook on Criminal Law. 9th Edition. Oxford University Press
R v Church [1966] 1 QB 59
R v Le Brun [1991] 4 All ER 673
R v Padgett 1983
R v White
Thabo Meli [1954] 1 WLR 228
R v Whybrow
Becerra (1975)
R V Fitzmaurice 1983
R v Siracusa (1990) 90Cr APP r 340
Woollin [1998] 4 All ER 1
Yip Chiu-Cheung v R [1994]