Criminal liability and legal causation - Free Essay Example

James died following Rosieà ¢Ã¢â€š ¬Ã¢â€ž ¢s attack giving rise to potential liability for murder. The actus reus of murder is unlawful killing of a reasonable person within the Kingà ¢Ã¢â€š ¬Ã¢â€ž ¢s peace.[1] This necessitates a causal nexus between Rosieà ¢Ã¢â€š ¬Ã¢â€ž ¢s attack and Jamesà ¢Ã¢â€š ¬Ã¢â€ž ¢ death. Factual causation requires that death would not have occurred à ¢Ã¢â€š ¬Ã‹Å"but forà ¢Ã¢â€š ¬Ã¢â€ž ¢ the defendantà ¢Ã¢â€š ¬Ã¢â€ž ¢s actions.[2] This is satisfied as Rosieà ¢Ã¢â€š ¬Ã¢â€ž ¢s attack set in motion a chain of events that resulted in Jamesà ¢Ã¢â€š ¬Ã¢â€ž ¢ death. However, factual causation only acts as a preliminary filter to eliminate unconnected events; the actus reus of murder requires that legal causation is also established. Legal causation isolates the most culpable factual cause as the basis for criminal liability. The fact that Rosieà ¢Ã¢â€š ¬Ã¢â€ž ¢s attack was not the most immediate cause of death is immaterial; following Pagett, the defendantà ¢Ã¢â€š ¬Ã¢â€ž ¢s act need not be the sole or even the main cause of death provided it is a cause.[3] Rosie may argue that the accidental disconnection of Jamesà ¢Ã¢â€š ¬Ã¢â€ž ¢ life-support system is a à ¢Ã¢â€š ¬Ã‹Å"new and overwhelmingà ¢Ã¢â€š ¬Ã¢â€ž ¢ cause of death that renders her contribution insignificant,[4] particularly as there is evidence that James would have recovered from her attack. The prosecution may challenge this by claiming that cessation of life-support was characterised as an omission in Bland[5] and only a positive act can break the chain of causation. However, B land can be distinguished as the accidental removal of life-support by an unauthorised and unqualified person is not analogous to a medically-sanctioned cessation of artificial support thus Rosie will establish that the cleanerà ¢Ã¢â€š ¬Ã¢â€ž ¢s negligence was a positive act thus could potentially break the chain of causation. Irrespective of this, legal causation will be established as it is a policy-driven area that attributes criminal responsibility in line with blameworthiness. The defendantà ¢Ã¢â€š ¬Ã¢â€ž ¢s wrongdoing rendered the victim vulnerable to deficiencies in treatment thus errors should not absolve the defendant of liability[6] unless they render the defendantà ¢Ã¢â€š ¬Ã¢â€ž ¢s contribution wholly insignificant[7] and, without Rosieà ¢Ã¢â€š ¬Ã¢â€ž ¢s attack James would not have been on life-support and vulnerable to its termination. This is a particularly pressing argument given that even deliberate cessation of life-support will not break the chain of causatio n.[8] As such, Rosieà ¢Ã¢â€š ¬Ã¢â€ž ¢s attack remains the legal cause of death and the actus reus of murder is established notwithstanding the accidental disconnection of life-support. The mens rea of murder is malice aforethought, defined as intention to kill or cause grievous bodily harm.[9] Rosieà ¢Ã¢â€š ¬Ã¢â€ž ¢s attack on James was not done with the express purpose of causing death[10] thus direct intention to kill is not established. If Jamesà ¢Ã¢â€š ¬Ã¢â€ž ¢ death was a virtually certain consequence of Rosieà ¢Ã¢â€š ¬Ã¢â€ž ¢s attack and she realised this was the case then oblique intention will be established.[11] However, Rosie may argue that death was not a virtually certain consequence of being struck about the head with a vase as Jamesà ¢Ã¢â€š ¬Ã¢â€ž ¢ death was not the direct result of this but occurred because of later events. If this is successful, the prosecution will have to base liability on implied malice (intention to cause grievous bodily harm). Rosie str uck a deliberate blow with a lamp, a hard and heavy object, to Jamesà ¢Ã¢â€š ¬Ã¢â€ž ¢ head, a vulnerable part of the body. As such, the intention to cause grievous bodily harm (defined as à ¢Ã¢â€š ¬Ã‹Å"serious harmà ¢Ã¢â€š ¬Ã¢â€ž ¢)[12] is established and this satisfies the mens rea for murder even though the defendant sought to cause injury not death. As the actus reus and mens rea for murder are established, Rosie will be liable unless she can rely upon a defence to reduce her liability to murder or obtain an outright acquittal. The Homicide Act 1957 contains two partial defences that could reduce Rosieà ¢Ã¢â€š ¬Ã¢â€ž ¢s liability to voluntary manslaughter: diminished responsibility[13] and provocation.[14] Section 2 provides that the defence is available to defendants who are suffering from an abnormality of mind arising from specified causes that substantially impairs their mental responsibility for the acts leading to death. Rosie was suffering from depression and her history of sexual abuse rendered her likely to resort to violence when placed in abusive situations where her self-esteem was eroded thus may be able to establish a defence of diminished responsibility. This will establish an à ¢Ã¢â€š ¬Ã‹Å"inherent causeà ¢Ã¢â€š ¬Ã¢â€ž ¢ of her condition[15] but the questions remains as to whether this mental condition would amount to an à ¢Ã¢â€š ¬Ã‹Å"abnormality of mindà ¢Ã¢â€š ¬Ã¢â€ž ¢. This has been defined as a state of mind that is so far removed from the ordinary that a reasonable person would consider it abnormal.[16] The question for the jury, then, is whether Rosieà ¢Ã¢â€š ¬Ã¢â€ž ¢s depression and background have caused an abnormality of mind that was operative at the time of the killing. Diminished responsibility confers great discretion on the jury that can be exercised in the defendantà ¢Ã¢â€š ¬Ã¢â€ž ¢s favour if their sympathy is roused so the success of this defence hinges on whether they perceive Rosie as a vulnerable woman who was exploited and rejected by her employer or as a manipulative and avaricious schemer who set her sights on marrying a wealthy man and struck out when her ambitions were thwarted. The psychiatric evidence suggests the former but the damning evidence of her former partner suggests the latter thus the success of this defence is somewhat uncertain for Rosie. As diminished responsibility may not provide a defence, Rosie may consider reliance on provocation. Section 3 provides a defence for a defendant who was provoked, by things said or done, to lose control in circumstances that would have provoked a reasonable man to act in the same was as the defendant. This gives rise to a two-stage test. The first limb of the test is subjective and asks whether the defendant suffered a à ¢Ã¢â€š ¬Ã‹Å"sudden and temporaryà ¢Ã¢â€š ¬Ã¢â€ž ¢ loss of control.[17] This requires temporal proximity between the provocative incident and the defendantà ¢Ã¢â€š ¬Ã¢â€ž ¢s response; anything else is indica tive of revenge or planned killing. Here, Rosie is enraged by the email and confronts James, which could be indicative of a planned attack.[18] However, Jamesà ¢Ã¢â€š ¬Ã¢â€ž ¢ response in firing Rosie was the à ¢Ã¢â€š ¬Ã‹Å"final strawà ¢Ã¢â€š ¬Ã¢â€ž ¢[19] which elicited a violent response, using a weapon that was readily to hand, thus establishing the requisite immediacy of reaction to satisfy the subjective limb. However, Rosie must now establish that a reasonable man would have been provoked and acted as she did in attacking James. This objective test is modified by certain characteristics of the defendant being attributed to the reasonable man.[20] There is uncertain in case law as to which characteristics of the defendant should be given to the reasonable man. In Smith, the House of Lords held that any characteristics that affected the defendantà ¢Ã¢â€š ¬Ã¢â€ž ¢s ability to exercise control should be attributed.[21] Following this, the reasonable man would be a woman of R osieà ¢Ã¢â€š ¬Ã¢â€ž ¢s age with a love of children and desire to marry that was recently (and cruelly) thwarted. The reasonable man would share Rosieà ¢Ã¢â€š ¬Ã¢â€ž ¢s history of abuse and depression. If her allegation of rape is true (although it seems inconsistent with her desire to marry James) the reasonable man would also be the victim of a recent rape. Equipped with these characteristics, the reasonable man could hardly fail to respond as Rosie did and the defence of provocation would be established. However, doubts have been expressed about Smith. The Privy Council held that it was wrong to attribute so many characteristics to the reasonable man as this converted an objective test into a subjective one.[22] This is only persuasive authority in this jurisdiction but subsequent Court of Appeal decisions have followed the Privy Council approach of attributing only characteristics that explain the gravity of the provocation rather than the broader approach in Smith.[23] As s uch, the reasonable man would be a woman of Rosieà ¢Ã¢â€š ¬Ã¢â€ž ¢s age who had recently been dismissed from her post. It would not taken into account her thwarted marital aspirations or history of abuse and depression. As such, it is far less likely that provocation will provide a successful defence for Rosie. As the availability of partial defences is uncertain, Rosie may plead automatism, on the basis of her à ¢Ã¢â€š ¬Ã‹Å"trance-like stateà ¢Ã¢â€š ¬Ã¢â€ž ¢, which would result in an acquittal. Automatism requires that actions were rendered involuntary as a result of some external event[24] and has included post-traumatic stress induced by rape.[25] Again, this is contingent upon the truth of Rosieà ¢Ã¢â€š ¬Ã¢â€ž ¢s allegation. Moreover, if the judge rules that the dissociative state arose not from an external cause[26] but from internal cause, such as depression, she will have established a defence of insanity.[27] This is not a popular strategy amongst defendants; many pre fer to plead guilty than be found à ¢Ã¢â€š ¬Ã‹Å"not guilty by reason of insanityà ¢Ã¢â€š ¬Ã¢â€ž ¢. This is attributable to the social stigma attached to insanity and also the ability of the judge to order indefinite detention in a secure hospital, although the judge has discretion to make alternative orders[28] even in respect of murder.[29] Overall, reliance on automatism will not be a sound strategy for Rosie as it carries a risk that the court will reject this and find insanity. Overall, Rosieà ¢Ã¢â€š ¬Ã¢â€ž ¢s prospects are not favourable. Liability for murder is established and there is no clear-cut line of defence that suggests that she will be acquitted or have her liability reduced to manslaughter. Word Count: 1500 words Case List Airedale NHS Trust v. Bland [1993] AC 789 Attorney-General for Jersey v. Holley [2005] 3 All ER 371 Bratty v. A-G for NI [1963] AC 386 DPP v. Camplin [1978] 2 All ER 168 DPP v. Smith [1961] AC 290 Hennessy [1989] 2 All ER 9 Mà ¢Ã¢â€š ¬Ã¢â€ž ¢Naghten Rules (1843) 10 Cl Fin 200 Mohammed [2005] EWCA 1880 R v. Ahluwalia [1992] 4 All ER 889 R v. Byrne (1960) 2 QB 396 R v. Cheshire [1991] 3 All ER 670 R v. Cunningham [1982] AC 566 R v. Duffy [1949] 1 All ER 932 R v. Humphries [1995] 4 All ER 1008 R v. James [2006] EWCA Crim 14 R v. Jordan (1956) 40 Cr App R 152 R v. Malcherek and Steel [1981] 2 All ER 422 R v. Mohan [1975] 2 All ER 193 R v. Pagett (1983) 76 Cr App R 279 per Robert Goff LJ at 290 R v. Smith (Morgan) [2000] 3 WLR 654 R v. T [1990] Crim LR 256 R v. Thornton (No 2) [1996] 2 All ER 1023 R v. White [1910] 2 KB 124 R v. Woollin [1999] 1 AC 82 Statutes Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 Domestic Violence, Crime and Victims Act 2004 Section 2 of the Homicide Act 1957 Section 3 of the Homicide Act 1957 Bibliography Allen, M., (2003) Textbook on Criminal Law, 7th ed., Oxford: Oxford University Press Chalmers, J., à ¢Ã¢â€š ¬Ã‹Å"Merging Provocation and Diminished Responsibility; some Reasons for Scepticismà ¢Ã¢â€š ¬Ã¢â€ž ¢ [2004] Criminal Law Review 198 Clarkson, C.M.V. and Keating, H.M., (2003) Criminal Law: Text and Materials, 5th ed., London: Sweet Maxwell Elliot, C., à ¢Ã¢â€š ¬Ã‹Å"What Future for Voluntary Manslaughter?à ¢Ã¢â€š ¬Ã¢â€ž ¢ [2004] Journal of Criminal Law 253 Gale, C. and James, A., à ¢Ã¢â€š ¬Ã‹Å"Provocation: Law at Time of Trial Relevantà ¢Ã¢â€š ¬Ã¢â€ž ¢ (2004) Journal of Criminal Law 96 Herring, J., (2004) Criminal Law: Text, Cases and Materials, Oxford: Oxford University Press Law Commission Report 290 (2003) Partial Defences to Murder. London: HMSO Mackay, R.D. and Mitchell, B.J., à ¢Ã¢â€š ¬Ã‹Å"Provoking Diminished Responsibility: Two Pleas Merging Togetherà ¢Ã¢â€š ¬Ã¢â€ž ¢ [2003] Criminal Law Review 745 Ormerod, D.C., (2005) Smith Hogan Criminal Law, 11th ed., Oxford: Oxford University Press 1 Footnotes [1] Based upon Cokeà ¢Ã¢â€š ¬Ã¢â€ž ¢s classic definition (Coke 3 Inst 47) as modified by the Law Reform (Year and a Day Rule) Act 1996 [2] R v. White [1910] 2 KB 124 [3] R v. Pagett (1983) 76 Cr App R 279 per Robert Goff LJ at 290 [4] R v. Cheshire [1991] 3 All ER 670 [5] Airedale NHS Trust v. Bland [1993] AC 789 [6] R v. Cheshire [1991] 3 All ER 670 [7] R v. Jordan (1956) 40 Cr App R 152 [8] R v. Malcherek and Steel [1981] 2 All ER 422 [9] R v. Cunningham [1982] AC 566 [10] R v. Mohan [1975] 2 All ER 193 [11] R v. Woollin [1999] 1 AC 82 [12] DPP v. Smith [1961] AC 290 [13] Section 2 of the Homicide Act 1957 [14] Section 3 of the Homicide Act 1957 [15] R v. Ahluwalia [1992] 4 All ER 889 [16] R v. Byrne (1960) 2 QB 396 [17] R v. Duffy [1949] 1 All ER 932 [18] R v. Thornton (No 2) [1996] 2 All ER 1023 [19] R v. Humphries [1995] 4 All ER 1008 [20] DPP v. Camplin [1978] 2 All ER 168 [21] R v. Smith (Morgan) [2000] 3 WLR 654 [22] Attorney-General for Jersey v. Holley [2005] 3 All ER 371 [23] Mohammed [2005] EWCA 1880; R v. James [2006] EWCA Crim 14 [24] Bratty v. A-G for NI [1963] AC 386 [25] R v. T [1990] Crim LR 256 [26] Hennessy [1989] 2 All ER 9 [27] Mà ¢Ã¢â€š ¬Ã¢â€ž ¢Naghten Rules (1843) 10 Cl Fin 200 [28] Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 [29] Domestic Violence, Crime and Victims Act 2004