Manslaughter - Criminal Law - To establish an actus reus of an offence in homicide, it must have to be proved that the defendant caused the death of the victim.

00003370 27/04/07

SEMESTER A COURSEWORK

LL105 CRIMINAL LAW COURSEWORK

Reginald an ex army officer, served as a bomb disposal expert, plans a firework display for his son’s birthday. Bought £500 fireworks, adds additional chemicals to make it more spectacular. He puts the fireworks in the booth of his car; first, he stops over at the mechanics to get the exhaust welded. Mac, the mechanic starts work and sooner the fireworks explode and Mac is badly hurt with fragments in his groin and leg. He is taken to the hospital, and the fragments are removed. Next day, he is in pain doctor administers a drug without looking at his medical record. The pain is relieved but Mac feels depressed. Later Mac opens his wound and is found dead the following morning.

If Mac is charged with manslaughter the mental element required to explain to the jury are:

Does D owe a duty of care to victim
Did D breach that duty
Is his act the cause of the death
Is he liable

If the jury answers yes, to all the above then D is liable.

Before we can establish this, we have to define mental element. This is a state of mind the accused was in at the time of the act. The state of mind in this case, being the omission to act. Omission is an act of negligence, which leads to a minor act, or gross negligence, which leads to death. Negligence and gross negligence are both an act of omission, which has same state of mind but different result.

‘Negligence can be defined as the omission to do something which a reasonable person guided upon these considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent or reasonable person would not do.’ (Lecture outline criminal law)

Gross negligence is a higher degree of negligence of which the risk taking must have been obvious to the reasonable person, anything above negligence, which leads to serious hospitalisation, or death. Negligence is actus reus because it falls outside mens rea, as mens rea requires intention as the state of mind.

Lord Hewitt C. J. in Bateman states that “in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between the subjects and showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving of punishment.” (Clarkson and Keating 1998)

A mere negligence would not ordinarily lead to a crime with the state unless it exceeds that which can be compensated for such as damage to property or a trip over the leg.

The test of gross negligence was applied in R v Prentice (1994) and approved in Adomako (1994) by the House of Lords.

In Adomako, the defendant being an anaesthetist failed to notice a disconnection tube from the ventilator. He only noticed it four and a half minutes after the disconnection when an alarm sounded. He made some checks but still failed to notice the disconnection. The patient suffered cardiac arrest and died. The defendant was convicted of manslaughter, he appealed but his appeal was dismissed.

It was held that the appellant was guilty of gross negligent for failing to notice or respond appropriately to obvious signs. (Crim LR) Both of these cases were based on an earlier case of Bateman 1(1925)

To establish an act of gross negligence, these are the test to follow (1) there must be the existence of a duty care (objective) and ordinary principles of the law of negligence apply to ascertain this. All persons are deemed to adhere to standards that avoid putting the lives of others at risk (2) there must be a breach of this duty causing death.(Lecture outline pg19)

For this test to be proved, the defendants act must be below that of any standard and reasonable person, the act must also be in a way that amounts to death. If the jury ...

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For this test to be proved, the defendants act must be below that of any standard and reasonable person, the act must also be in a way that amounts to death. If the jury finds all these lacking, the act is gross negligence and they can infer criminal liability.

Based on these findings or explanations, the juries are best directed on how to find the defendant.

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Before we can establish if Reginald caused the victims death, we first define causation.

Causation is something that produces an effect. Somebody to blame for conduct or an act, which produces prohibited or unlawful results.

To establish an actus reus of an offence in homicide, it must have to be proved that the defendant caused the death of the victim. Also to establish the causation of an offence, it must be asked if the defendant’s act was the cause of the specified consequence. It can also be asked ‘But for what the defendant did would the consequence have occurred?

In other to follow causation, the rules of causation have to be applied and these are;

Eggshell skull:

This means taking your victim as you find him/her. In this case, if injury or death was not foreseeable at the time of the defendants act, the defendant will still be blamed if the victim has a heart attack and dies or refuses to take medication. This was in the case of R v Blaue (1975) where it was held, that the defendant caused the death of a Jehovah’s Witness. The defendant stabbed the victim, the victim was taken to hospital. Blood transfusion was prescribed but victim refused, due to their religious believe. The victim died as a result.

If the victim had taken the blood transfusion, it would have saved his life. For the fact, the victim refused to take the blood does not break the chain because if the defendant had not stabbed the victim probably there would not have been need for blood. Therefore, the defendant had to take his victim as he finds him.

Policy Approach.

This means leaving the victim to his detriment. If Reginald instead robs and assaults Mac, and leaves him on the road in a cold winter night without his cloths on and Mac is run over by a car and killed, Reginald caused his death ‘but for test.’

This was in the case of R v Kibbe and Krall (1974). The defendants had the victim in their car, on the way they robbed, and assaulted him, they threw him out into an icy cold road without his glasses. The weather was so bad it was hardly visible. The victim trying to get to safety, is run over by a truck and killed. The defendants where charged with murder. They appealed claiming that the actions of the driver constituted intervening and superseding cause, which relived them of criminal responsibility.

Gabrielli J held

“To be a sufficiently direct cause of death so as to warrant the imposition of a criminal penalty therefore, it is not necessary that the ultimate harm be intended by the actor. It will suffice if it can be said beyond a reasonable doubt, as indeed it can be here said, that the ultimate harm is something which should have been foreseen as being reasonably related to the acts of the accused…

In this case, the direct act of the accused caused the death of the victim, of which any reasonable person would have foreseen. (C & K)

Medical treatment and causation

If treatment is given to a patient and the patient dies in hospital, the original attacker will be held responsible. Only where the treatment was gross negligence then it will break the chain.

In R v Jordan (1956) the defendant stabbed the victim, the victim was taken to hospital and the wounds were stitched. Eight days later, victim dies. The defendant was convicted. Defendant appealed claiming that the victim did not die of the wounds as the wound healed before the victim died. New evidence showed that the victim died of wrong medical treatment, and failure to notice, the lungs were waterlogged and blocked. The conviction was quashed.

The wrong medical treatment has exonerated defendant, as the cause of death was the fault of hospital. (J. Allen 1999)

In my opinion this case should be argued out as it was the defendant that put him in that position. If he was not stabbed, he may not have been in hospital and his lung would not have been blocked unless he was already suffering from similar sickness before this. The judges should attribute part of the cause of death to the defendants act and not quash the conviction.

In the light of this did Reginald cause the death of Mac the answer is yes. His action was the operating and substantial cause of Mac’s death. It was not confirmed if the wound was healed or not, the medication only depressed him but did it affect the treatment? It was not mentioned, there was no evidence to show that either of these contributed to his death. If Reginald did not leave the fireworks in the booth Mac would not have been in hospital and would not have died.

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Part B

‘Where D being under no mistake of fact uses force in public or private defence, he either has a complete defence or if he uses excessive force no defence.’

First, the term mistake of fact has to be defined.

This is a defence, which defendants use to exonerate them from act of mens rea of the crime they committed. Example is the case of rape. A man who rapes a woman and mistakenly believes that the woman consented, it is believed that the mistake must be an honest one but need not be necessary reasonable.

In DPP v MORGAN (1976). The House of Lords ruled that if the defendant honestly believes that the victim is consenting to the act of intercourse, he could not be liable. (Clarkson and Keating)

Public defence, an individual or the police can use such force as deemed reasonable to prevent a crime such as riot, robbery, destruction of property, Criminal Law ACT 1967 s 3(1) gives individual that right. This also applies to private defence where a person fears for his life, property or threatened, self-defence can be justifiable where reasonable force is used.

Excessive force can prevent accused relying on the common law or statutory defence, which allows one to use reasonable force for protection. Trying to prevent crime in your home by shooting the victim to death will be no defence, especially where the thief is not armed.

If D under no mistake of fact uses force in public or private defence, provided he uses reasonable force, and the use of force is necessary and lawful, he has a defence, then it is up to the prosecutor to prove if the force was necessary or not. Criminal Law Act 1967 gives him the right to use reasonable force to prevent crime or arrest offender. However, the question to be asked is what is reasonable in the eye of the public and how far can one go in applying this. Reasonableness depends on the circumstance and what one sees as reasonable. For example, if you are in your bedroom and you see or hear somebody in your house who is not suppose to be there, you will maybe try to hit him or find a way to frightened him off or call the police that is reasonable. But, if in the other hand you tip toe behind the person, and the person did not know somebody was in, you shoot him dead, with the believe that the person was armed or he was going to kill you while in the other hand he was unarmed, that would be unreasonableness and use of excessive force, you will not have any defence. Unless you had, the reasonable and honest believe that your life was in danger.

According to Lord Griffith in one of his ruling, he said, “ A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot.”

In Beckford v R (1988), the defendant being a police officer was on a raid in Jamaica, one of the suspects saw the policemen and ran, defendant chased and shot the suspect dead. He was convicted.

The defendant claimed that he thought his life was in danger and he shot the victim in self-defence. The jury were directed that the belief that the defendant’s life was in danger had to be reasonable one. The defendant appealed and the Privy Council allowed his appeal. It was believed that the correct test to be used was whether the defendant honestly believed those facts, which, if true would entitle him to use force to defend himself or another. The reasonableness or otherwise of defendants belief has relevance only to the question of whether defendant honestly held that belief. Where there are no reasonable grounds to hold a belief it will only be in exceptional circumstances that a jury will conclude that such a belief was or might have been held. (W Wilson 1998 pg 95-96)

In this case, if the appellant honestly believed that his life was in danger and the victim was firing at him and he fired back, he has a defence, just like what Lord Griffiths said, “ you don’t have to wait for your assailant to strike first before you strike.”

However, if he only mistakenly thought that the victim was going to shot him while the victim was not armed and for the fact, the victim was escaping, he thought the only way to apprehend him was to shot him, then he has no defence. His believe must be a reasonable and honest one and must be proved.

Lord Diplock, set out a test of reasonableness and these are: are we satisfied that no reasonable man, (a) with the knowledge of such facts as we were known to the accused or believed by him to exist;(b) in the circumstances and time available for reflection;(c) could be of the opinion that the prevention of risk of harm to which others might be exposed if the suspect were allowed to escape [or the defence of himself or another or the prevention of crime or protection of property] to the risk of harm to him that might result from the kind of force that the accused contemplated using.

Lord Dilhorne also went further to say that ‘where the use of excessive force in affecting an arrest for the prevention of a crime resulted in death and the accused had the necessary mens rea then the conviction should be for murder and not manslaughter.’ (Lecture outline)

Following Lord Diplocks test this is a question of reasonableness, would any reasonable person in the position of the accused act same way accused acted in same circumstance. If any reasonable person believes honestly with prove that life was in danger, it is either his life or victims life and acts accordingly in self-defence then the accused should be acquitted. Also following Lord Dilhorn’s statement, if one uses excessive force with no reasonable believe of life threatening danger and with intention then it is complete murder with Mens rea.

Example of the use of excessive force is the Tony Martin Case, which took place on the 19th April 2000. This is a farmer who killed a teenager and wounded another who broke into his home. Mr Martin was found guilty and sentenced to life imprisonment. He is said to be eccentric, hates gypsies, and has an obsession for firearms. Mr Martin lives in a farm where there is inadequate police.

Mr Martin denied murder, he claimed he was a victim of crime and was acting in self-defence. The detective who led the investigation Mr Martin Wright said: “Burglary is without doubt one of the most despicable crimes there is, but I would stress to every body it’s up to the police to resolve it.”

Mr Justice Owen said “ A householder could use reasonable force to defend themselves from burglary. People have the right to use reasonable force of which can result to tragic results.”(BBC Internet)

Where a defendant uses reasonable force in prevention of crime in both public and private and is necessarily applied and lawful then he has a complete defence. Where he uses excessive force with mens rea, as in the case of Tony Martin, he has no defence.

Reasonableness should be more defined and clear cut for the public to follow as one do not know how far one can go in using force as defence. As different judges use different rules in different circumstances. With the rule of law at present, there don’t seem to be much defence available. Its like you have to mind where you step as not to step on the person who first stepped on you.

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