Offence of Murder

In this scenario, the offence of murder will be focused upon. The jury must investigate whether Al had the required actus reus and mens rea present whilst carrying out his act. They must both ‘coincide’ for there to be an offence. It should then be considered whether he had an intention present at the time of the act. However, if there is a sufficient break in the chain of causation, it may relieve Al of any liability for murder.

It must be established what is meant by murder which, can be described as ‘unlawful malice with aforethought’ . This is the killing of another with a premeditated plan. According to LCJ Coke murder is ‘…When a man of sound memory, and of the age of discretion, unlawfully killeth within any county of the realm…’ an ‘unlawful killing’ looks at a murder carried out simply for vengeance rather than one which, may be in self defence. Therefore, the question is whether Al had a malicious intent.

Firstly, the focus should lie on the actus reus and whether it is applies to this situation. The actus reus is the ‘external element’ which contributes to a person committing a crime. ‘It is a fundamental pre-condition of criminal liability that the actus reus of a crime should require human action and be committed voluntarily.’ The actus reus of murder is ‘the unlawful killing of a human being.’ It can be argued that where Al puts the petrol around the hay and throws the lighted newspaper into the stables is an act .

Furthermore, the mens rea element of murder must be considered to see what state of mind the defendant was in. This is seen to be the ‘internal element’ known as the defendant’s ‘guilty mind’. The mens rea requirement for murder is an ‘intention to kill or intention to cause grievous bodily harm’. Intention can be defined as: ‘The most culpable form of blameworthiness. A state of affairs which the party “intending” does more than merely contemplate.’

There must be a distinction made between direct and oblique intention. Direct intention, is where the defendant has the ‘desire’ to commit an offence. It can be seen that Al’s intent can be classed as an oblique intention where there is a lack of ‘desire’ present. This is illustrated by the case of R v Mohan by James LJ as ‘ a decision to bring about, in so far as it lies within the Accused’s power… no matter whether the accused desired that consequence of his act or not’. If it can be proved that Al intended to kill or cause grievous bodily harm, only then can he be held liable.

It may be argued that although Al, pictures Barry in hospital, this does not mean that he will be found guilty, just because he had guilty thoughts. However, these thoughts can be enough to distinguish that he had the intent to cause harm to Barry and could satisfy as the grievous bodily harm criteria of the mens rea.

When looking at intention, it is important that the defendant has contemplated that an injury or death will occur. ‘This is set under section 8 of the Criminal Justice Act which will be an important guidance to the jury when deciding upon the fact of a particular case which, has led to a more subjective approach.’ The case of Hyam v DPP went on to establish: ‘if a man, in full knowledge of the danger involved and without lawful excuse does that which exposes a victim to the risk of the probable grievous bodily harm or death… the perpetrator of the crime is guilty of murder…’

Therefore, even where a person does not intend the harm as identified in R v Cunningham , if they can see the probability of it occurring they can still be liable for the intention. It is questionable whether a reasonable person would have imagined there to be a risk along with setting the stables on fire.

A further illustration of intent can be seen in the case of R v Nedrick this directed juries to consider two questions to see whether the accused could be held liable. It was also expressed in this case that ‘… they might find it easier to infer that he intended to kill or do serious harm, even though he may not have had any desire to achieve the result.’ The case of R v Woolin which is the modern day authority also supports the test set out in Nedrick, the only difference being that in Woolin the word ‘find’ replaces ‘infer’.

There is the possibility that Wilf’s death is a result of transferred malice. This is whereby ‘Defendant’s mens rea for one crime causes the actus reus of the same crime but either mistakenly or accidentally causes an unintended consequence…’ In the case of R v Latimer Lord Coleridge CJ established that where a person commits an offence and ‘…in attempting to carry it out, injures a third person, is guilty of what the law deems malice against the person injured.’ It can be argued that the malice is transferable to Wilf’s death as Al had the mens rea to injure Barry and ends up killing Wilf.

The area of Causation is a key element and should also be investigated when determining the liability of the accused. It will be left to the jury to decide upon the verdict depending upon the facts that they are presented with. The first area of causation which will be looked at is that of factual causation which, focuses on the ‘but for’ test to see ‘if but for the defendant’s act the result would not have occurred.’

The case of R v White looks at this idea that if the defendant’s act is not the actual cause of the death then they cannot be held liable but may however be guilty of an attempted crime. The case of R v Dalloway focuses on a situation where the defendant’s act did not contribute to the resulting death. Therefore it could be argued that as Wilf’s death was due to the emphysema caused by Wilf working in a coal mine most of his life, Al may argue that he should not be liable for murder. On the other hand, a possible counter argument is ‘but for’ Al’s actions, it would not have resulted in setting off Wilf’s emphysema.

Legal causation must also be investigated in order to consider liability. This looks at whether a Novus Actus Interveniens has occurred which, will break the chain of causation. Whilst focusing on legal causation, it must be established that the Act of the guilty party ‘must contribute to the end result to a significant extent’. The defendant may be found liable even where there is seen to be an intervening act. The case of R v Smith supports this view by stating: ‘Only if it can be said that the original wounding is the setting in which another cause operates can it be said that death does not result from the wound.’

The cases of R v Malcherek , R v Steel look at whereby the act of the defendant does not have to be the sole cause of the death and states that ‘…the fact that the victim has died, despite or because of medical treatment for the initial injury given by careful skilled medical practitioners, will not exonerate the original assailant…’ However, arguably if established that the medical intervention was carried out in such a negligent manner, only then can there be a break in the chain of causation as illustrated by the case of R v Jordan which, would relieve the accused of the liability.

If we apply this to the situation relating to where the paramedics failed to provide Wilf with oxygen as well as his hospitalisation, where he is given a 50% defective oxygen cylinder, it could be argued by Al that this is negligent and a breach of their duty towards a patient, as they should have checked the cylinder before giving it to Wilf. Nevertheless, as the initial injury is the emphysema, which has resulted from Al’s actions it will hold him liable for the death of Wilf, even though there has been an intervening act.

There is also the argument of ‘take your victim as you find them’ as illustrated by the case of R v Hayward where a victim had a medical condition which resulted in her death due to threats made, ended up resulting in manslaughter. The case of R v Blaue takes this view that the defendant can still be liable even where a break in causation occurs due to the need for medical attention. If the victim is susceptible to an illness as Wilf is, then this is part of their health therefore, Al must take Wilf to have an illness and his act has triggered it off.

In conclusion, it is a fairly debateable area for one to consider although it could well be that Al is found guilty of the murder of Wilf, through transferred malice and will therefore be held liable. There is also the fact that as his act was a substantial cause of the final result of death he cannot solely rely on a break in the chain of causation by the paramedics or the hospital. However, it might well be that on appeal he may receive a reduced sentence of involuntary manslaughter as it may be taken into consideration, that the half empty oxygen cylinder was not down to Al but the hospital.

Bibliography

Books

1. Loveless. J, Complete Criminal Law Text, Cases and Materials, 1st ed, 2008, Oxford University Press.
2. Curzon L.B, Richards P.H, The Longman Dictionary of Law, 7th ed, 2007, Pearson/Longman.
3. Ormerod.D Criminal Law, Cases and Materials, 9th ed, 2006, Oxford University Press.
4. Herring. J, Criminal Law Text, Cases and Materials, 2nd ed, 2006, Oxford University Press.
5. Padfield. N, Criminal Law 5th ed, 2006, Oxford University Press

Websites

• https://www.lawteacher.net/Actus%20Reus%20Lecture.php (23/10/08)
• https://www.lawteacher.net/Actus%20Reus%20Cases.php (23/10/08)
• https://www.lawteacher.net/Homicide%20Intro.php (23/10/08)
• https://www.lawteacher.net/Mens%20Rea%20Lecture.php(23/10/08)
• https://www.lawteacher.net/Mens%20Rea%20Cases.php(23/10/08)
• https://www.lawteacher.net/Murder.php (23/10/08)
• http://sixthformlaw.info/02_cases/mod3a/cases_01_actus_causation.htm#Benge,%20R%20v%20(1865)%20%20pre-SCJA%201873 (6/11/08)