Criminal Law

Ed arguably owed a duty of care due to statutory or contractual duties to protect the public. However it would also remain for the jury to determine whether Ed’s act fulfilled the fourth element.

In relation to Betty’s death, Alan may try to argue that Doctor Fiona’s authorising the termination of life support broke the chain of causation. However, medical cases rarely break the chain of causation. Specifically, Bland confirmed that terminating life support is an omission that would not breach the doctor’s duty to keep the patient alive if the patient is in an irrecoverable, unconscious condition and a clinical decision is made in the best interest of the patient to discontinue treatment. This argument would therefore not be successful and Fiona would have no criminal liability.

Returning to Alan’s case, I will now look at the mens rea (MR) of murder and manslaughter respectively:

The MR for murder is intention to kill or cause grievous bodily harm (GBH). Intention can be direct or oblique. Direct intent is when the result of the crime was (D’s) direct purpose or aim of the act. Oblique intent is when the result is a pre-condition of an act, or a virtually certain consequence of an act. The pre-condition or consequence must be foreseen by the defendant (Nedrick, Woolin).

It appears that it was Alan’s purpose (i.e. direct intent) to kill Clive or cause him GBH, and so if proved beyond reasonable doubt he would be guilty of the murder of Clive.

As far as we know, Alan’s aim was not to kill Betty. However depending on the circumstances, it may be possible to prove that there was a virtual certainty that Alan’s act would result in GBH or death of Betty, and that he foresaw it. For example if Betty was sitting just next to Clive. The decision lies with the jury, and is a very difficult one considering the fine line between recklessness and oblique intention and considering the consequences of an unfair conviction.  Murder is followed by a mandatory life sentence whilst manslaughter sentences can vary considerably.  

If the probability of causing either of the V’s serious harm or death was less than a virtual certainty Alan could be guilty of manslaughter.

Reckless manslaughter has been committed if D “is aware of a risk of death or serious injury and nevertheless goes on unreasonably to take that risk (Lidar).  “Aware of risk” is a subjective test since Caldwell (objective) recklessness in respect of manslaughter was overturned by Adomako. 

As far as we know Alan has a paranoid personality and is prone to depression, none of which indicate that he would be unable to foresee the risk he posed to the V’s. However this would depend on his mental state and the facts.

Alan could also be charged with Dangerous and Unlawful Act Manslaughter, i.e. killing whilst committing an unlawful act with MR greater than negligence (Fenton, Lamb, Simon Slingsby). The act must be dangerous and constitute a risk of harm, albeit not serious harm, (Church). Foresight of harm by D is not necessary (Ball) if it would be appreciated by the sober and reasonable man (Watson ) however an intention to commit an unlawful and dangerous act, and that the act inadvertently caused death, must be proved (DPP v Newbury). Shooting towards Clive would clearly be a qualifying act in all above respects.

I will now consider what defences may be available to Alan:

If D acted without control of the mind, or was not conscious of what he was doing, he could plead automatism or insanity.

Non-insane automatism is “an involuntary act... done by the muscles, without any control by the mind, such as a spasm..., or an act done by a person who is not conscious of what he is doing, such as an act whilst suffering from concussion...” (Bratty) when the state is brought on by an external cause.

This defence is attractive from the point of view of D, as it is a complete defence. However there is nothing indicating that an external cause rendered Alan an automaton at the time of his act.

Insanity can be pleaded when an internal cause, i.e. mental disorders, causes automatism. A successful plea of insanity can be followed by a range of hospitalization or supervision orders. This defence is defined in the M’Naghten rules and mainly covers those who suffer from psychotic or serious dissociative conditions (although also epilepsy and sleep-walking) but not neurotic, emotional, or volitional disorders. It appears that Alan would fall outside this group although this would depend on a detailed assessment of Alan’s paranoid personality and tendencies of depression. However considering the narrowness of this defence, Alan should also consider the defence of diminished responsibility:

According to section 2 Homicide Act 1957:

“Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested development or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being party to the killing.”

The categories listed as abnormality of mind have been relatively widely interpreted and considerably extended in the case of Byrne. Mere emotions such as depression or stress are generally not included. However serious depressive reactive illnesses have been included if regarded as abnormal to the reasonable man in accordance with the ratio of Byrne (Seers). The burden of proof is on D to prove the defence on a balance of probabilities. The jury considers medical evidence (psychiatric reports) and moral or mental responsibility, and decides whether D’s responsibility is substantially impaired.

Depending on the severity of Alan’s paranoia and depression he may be successful with this defence. Indeed in a substantial proportion of cases (77% 1997-2001) where D pleads guilty of manslaughter on the base of diminished responsibility prosecution accepts without the defence needing to be proved in court Diminished responsibility is a partial defence which reduces murder to voluntary manslaughter. 

Provocation was a common law defence (Duffy)  later modified by s3 Homicide Act 1957. The requirement of the defence is that D was provoked to lose self control, and that the provocation was enough to make a reasonable man react as D did.

According to Duffy the loss of self control must be sudden and temporary upon provocation.

Here it appears to have been a considerable delay between Betty leaving and Alan’s act, and thus the defence of provocation would not work. Moreover, Betty’s leaving was arguably not provocation that would make a person with reasonable powers of self-control so angry as to kill.

Finally, I will consider whether Alan would have any criminal liability for the fire damages to the pub:

According to section 1(1) of the Criminal Damages 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. “

Alan clearly caused destruction or damage to the pub without excuse. The discussion regarding voluntariness would be the same as above regarding AR of murder / manslaughter. Looking at causation, it appears that there is no event or act that would break the chain between Alan’s act and the fire causing damage to the pub.

Considering MR, two elements are required: intention or recklessness and knowledge or belief that the property belongs to another.

Intention here bears its ordinary meaning (direct or oblique). A person acts recklessly with respect to 1) a circumstance when he is aware of a risk that it exists or will exist; and 2) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take that risk. (Cunningham recklessness re-established in R v G).

“An offence committed under this section by destroying or damaging property by fire shall be charged as arson...”, only (MR) difference being that D must then intend or be reckless as to damage by fire.

Alan would arguably have foreseen some risk of damage as a result of his act, although again this is a subjective test, hence his mental capacity and characteristics would be considered. However it is less likely he foresaw risk of damage by fire.  

Based on the limited facts available, my conclusion is that Alan would be liable for murder of Clive. This may be reduced to voluntary manslaughter if he pleads diminished responsibility. Alan is likely to be guilty of the manslaughter of Betty, and of criminal damages to the pub. Fiona would not be criminally liable for their deaths, nor would Ed unless Alan escaped all liability by successfully pleading involuntariness. However a more detailed account of the case might result in a rather different conclusion.

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