Analysis of the law relating to the offence of Murder and relevant offences of Provocation, Diminished Responsibility and Intoxication.

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This continuous assessment requires a detailed analysis of the law relating to the offence of Murder and relevant offences of Provocation, Diminished Responsibility and Intoxication. The issue of non-fatal offences will also be dealt with.  

Murder is the killing of a human being by a human being within the Queen’s peace, death arising within 3 years of the act by the accused and also caused by the act of the accused. The actus reus of Murder therefore requires that the defendant should have caused the death of the victim through an act of his/her own. Death should be caused within the Queen’s peace and three years of the act of the defendant. In this question the defendant Mo killed her husband Billy. It was Mo’s act of setting fire to Billy’s bed, which caused the death of Billy who is the victim in this instance. It is required to be proved that death was caused by the act of the defendant.

Murder is a consequence crime and therefore accordingly requires causation to be proved in order for the actus reus of murder to be proved. It is in essence proving that it was the act of the defendant that caused the death of the victim. Causation is a 2-stage test and requires firstly causation in fact. The test for causation in fact is the ‘But for test’. But for the act of the defendant, would the victim still have suffered the consequences and if not then there is causation in fact. The element that has to be proved is that it was the act of the defendant that put the victim in a certain setting; in which he would not have been but for the act of the defendant.  In this instance it is not difficult to prove causation in fact, as had it not been the act of Mo, Billy would not have died. Once causation in fact is proved the second test of causation has to be satisfied.

The second stage of the causation test is causation in law. Causation in law is that it was the act of the defendant that was the operative and substantial cause of the consequences. An act can be defined as the operative cause of the consequences if it has not ‘exhausted its effect’. Substantial cause has been defined as something that does not fall within the ‘de minimis’ principle. However this can be misleading. Sometimes too trivial acts can result in liability for murder if this principle is applied. The correct test would seem to be that substantial cause is anything, which is more than merely insignificant and does contribute to the death of the victim. It is wrong to direct a jury that the defendant is not liable if he is less than one-fifth to blame. The requirement is that the act should still be significantly contributing to the death. 

In this question it seems that in relation to death of Billy there is causation in law as the act of Mo was the operative and substantial cause of Billy’s death. Neither had the act of Mo exhausted its effect and furthermore it was also the significant and sole cause of Billy’s death. It seems therefore that the actus reus of the offence of murder is proved as Billy dies in the fire and the place of his death is within the Queen’s peace. This takes us to the next issue in the question, whether Mo had the requisite mens rea for murder.

The mens rea for murder is intention to kill (express malice) or cause grievous bodily harm (implied malice). Traditionally the mens rea for murder is called “malice aforethought”. In Smith & Hogan Criminal Law 9th Edition malice aforethought has been defined as:

‘a mere arbitrary symbol… for the ‘malice’ may have in it nothing really malicious; and need never be really ‘ aforethought’.  

Therefore the requirement today is that the defendant should have intended either death or grievous bodily harm as a result of his/her act. Malice aforethought is generally taken to mean that the defendant should have intention to bring about either of those two consequences.

“Intention” has the same meaning as defined as in Woollin.  Intention can be defined as the either the purpose of the defendant’s act or even if it not the purpose of the defendant’s act, intention can be inferred from certain subjective foresight on part of the defendant. In other words if the defendant realizes that the consequences are virtually certain as a result of his act then the courts can hold that the defendant intended the consequences as a result of his act.

In the question before us it has been expressly stated that Mo had written a long letter in which she had mentioned that she was tired of living like this anymore. Thereafter she sets Billy on fire. It is clear therefore that the act of Mo was intentional. However it has not been mentioned whether she intended to cause serious bodily harm to Billy or kill him. It seems though that the courts are likely to hold that Mo has certainly foreseen serious bodily harm and therefore intended the consequences.

Mo intended to set Billy on fire and even if it was not the purpose of her act that Billy should be killed or suffer serious harm, she would have probably foreseen serious bodily harm as a virtually certain result of her act. The basic requirement is that Mo should have realized the consequences as a virtually certain consequence of her act. Furthermore the foresight/realization should be subjectively certain. Even if certain subjective foresight of the consequences is proved, it is at best only evidence of intention and although intention can be gathered/inferred from such foresight, such foresight is not intention itself. In ascertaining whether Mo had the requisite foresight to infer intention, the probability test provided by Lord Scarman can be used a guide.

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It seems therefore that in light of the facts of the case that there was high probability that the Billy would at least suffer serious bodily harm. Therefore it is highly likely that Mo foresaw the consequences and therefore certainly realized serious harm to Billy as a result of her act. In such circumstances it is probable that the courts will hold that Mo intended, through her act, that Billy should suffer serious bodily harm. If this is the case then the courts will hold that Mo had the mens rea for murder. Murder will therefore be proved.

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Outdated but otherwise excellent. 4 Stars.