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Sara was teaching her husband, Tom to drive but he was a slow learner
frequently subjected to excessive criticism by Sara and there were
numerous arguments between them. During the course of a lesson, Sara
suggested to Tom that he was not using the clutch properly. Tom made
no reply but, a few minutes later, suddenly steered the car off the
road into a ditch. At the time, Sara was not wearing her seatbelt and
she was thrown through the windscreen and badly injured. Had she
received prompt treatment, she would probably have survived but her
body was not discovered until three hours later.
Tom had also been injured in the crash and he was found by Vic an hour
later, wandering about outside Vic’s house, rambling and incoherent.
Vic took him in and gave him a very large glass of brandy. Tom then
left the house, walked along a pavement and crossed a main road in
front of fast moving traffic. Una was driving on the road at the time
and, in swerving to avoid Tom, ran into a queue of people at a bus
stop and killed Walter.
When stopped and questioned, Tom was though to be drunk but he
maintained that he had no recollection of anything that had occurred
after the original crash involving Sara.
(a) Analyse the facts above to show whether and how Tom may be guilty
of Sara’s murder.
How might he seek to reduce his liability for her death?
(b) (i) Explain the elements of the different forms of
(ii) Consider whether Tom is guilty of the manslaughter of Walter,
examining any arguments which may be raised in Tom’s favour.
(c ) Tom’s guilt or innocence would be decided by the jury. How
satisfactory is trial by jury?
(d) How far do the rules of law which you have discussed above
indicate the importance attached to the notion of degree of fault as
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SUGGESTED ANSWER : Q. 1
(a) Define Murder
To establish Tom’s liability for the murder of Sara, The Prosecution
has to firstly prove that Tom caused the death of Sara as murder,
being a result crime requires the proof of both the act or omission as
well as the result as both these elements combine to constitute its
Causation is both a question of fact and law. It has to be first
established that there is a factual link between Tom’s act (of
steering the car into the ditch) and Sara’s death. This is resolved by
applying the ‘but-for’ test – ‘but for’ the act of Tom would Sara have
died? The answer here would clearly be in the negative thereby
establishing factual causation. However there is a need further to
consider the issue of legal causation. It can be argued that Sara’s
failure to wear her seat belt and her not receiving prompt treatment
has contributed to her death. The question is, is it sufficient to
constitute ‘novus actus interveniens’ to enable the law to say Tom is
not legally liable to have caused Sara’s death. The test that would be
applied here would be the Smith’s test – was the injury that resulted
from Tom’s act the operating and substantially cause of the death at
the time of Sara’s death. See R v HOLLAND. The injury suffered by Sara
was clearly the operating and substantially cause or at least provided
a significant contribution to her (see R v CHESHIRE) and hence legal
causation can undoubtedly be established.
‘Malice aforethought’ encompasses two particular types of mens rea –
intention to kill and intention to cause grievous bodily harm. Either
of these states of mind will be sufficient mens rea for murder. R v
MOLONEY. In the ordinary sense, intention would mean purpose or desire
to bring about a certain consequence (direct intent). The courts have
however given a wider meaning to the term described as ‘oblique’
intention. The cases of R v MOLONEY; HANCOCK & SHANKLAND and NEDRICK
have laid down that a jury is entitled to infer intention if they felt
sure that death or GBH was virtually certain to result from the
defendant’s action and that he appreciated that this was the case.
Intention is the first sense may be difficult to establish here.
However if the jury is convinced beyond a reasonable doubt that in the
manner Tom steered the car into the ditch at least GBH is virtually
certain to occur to Sara and that Tom appreciated this, then mens rea
would be established.
If the Prosecution succeeds in establishing prima liability, it is
then open to Tom to raise the possible defence of provocation. This
defence is given statutory force under Sec 3 of the HOMICIDE ACT 1957.
under the provision words alone can amount to provocation and hence
Sara’s criticism can constitute this. To establish the defence Tom
would firstly have to show that he was provoked to lose his self
control (a subjective test). If he succeeds, then it has to be
established that even tempered reasonable person of the same age and
sex of Tom and sharing such of his permanent characteristics are
relevant to the provocation would have acted in the same way. (an
objective test). In establishing the first issue, it has to be shown
that there was a sudden and temporary loss of self control on the part
of Tom following the provocation. See R v DUFFY. There should not be
any element of deliberation or premeditation. Any lapse of time –
cooling time-between the provocation and the defendant’s response
could be evidence of this. This facts indicate that Tom’s reaction
occurred a few minutes after Sara’s supposedly provocative words. This
however may not by itself deny Tom the defence as the courts have been
known to take a relaxed approach on this issue – see R v THORNTON.
However, even if the first element is established, it is submitted
that it would be an uphill task for Tom to show that the reasonable
man, even if provoked to lose his self control, would have done as
what Tom did. Hence the likelihood of this defence succeeding may be
slim. But in the event the defence is accepted, the effect of the
defence would be to reduce Tom’s liability from murder to involuntary
(b) Clearly here there would be no intention to kill or cause
grievous bodily harm on the part of Tom with respect to Walter and
hence his liability will be considered under involuntary manslaughter
with respect to which there are two basis of liability viz : unlawful
act manslaughter and manslaughter by gross negligence.
Unlawful act manslaughter involves the proof of (a) the commission of
an unlawful act; (b) that it caused death and (c) that it was
dangerous in the sense that it is likely to cause some physical harm
It is unclear if Tom has committed a criminal act. In my view the
appropriate charge against him would be manslaughter by gross
negligence. This occurs when a person causes death in circumstances
where the risk of death, or possible GBH is reasonably foreseeable but
he either fails to foresee or his attempt to avoid falls so far below
the standard of care which a reasonable person would have exercised as
to go beyond a matter of compensation between individuals as to show
such disregard for the life and safety of others as to amount to a
crime against the state and to be conduct deserving punishment.
The problem of causation would have to be addressed first. Factual
causation is easily established – ‘but the’ the act of Tom, Walter
would not have died. See R v WHITE. Legal causation is more
problematic. The court would have to apply the ‘reasonable foresight’
test here as laid down in cases such as R v ROBERTS and R v PAGETT.
The question to be posed is – is the event which caused death, namely
the collision by Una into Walter, a reasonably foreseeable or natural
consequence of Tom’s act of crossing the main road the way he did?
Considering the nature of the road and the condition of the traffic
etc it is likely for the court to answer this question in the
If causation is established then the next question for the jury is –
having regard to the risk of death involved, was the negligent conduct
of Tom so bad in all the circumstances as to amount in their judgment
to a criminal act? If they again answer this question in the
affirmative, then liability for manslaughter by gross negligence would
If prima facie liability is established, the facts seem to indicate
that it is open for Tom to raise the defence of automatism. He would
have to raise preferably medical evidence to show that at the material
time his actions were involuntary in the sense that there was a total
lack of control of the bodily actions by the mind which was caused by
some external factor. See BRATTY v A-G for NORTHERN IRELAND. Here, it
has to be shown that the shock of the ‘accident’ has caused him to act
as an automaton at the material time. There is evidence that he has
consumed alcohol before the event. If there is proof that the state of
automatism was caused by the alcohol, then that automatism would be
self-induced and would not avail him a defence, manslaughter being a
basic intent crime. On the other hand intoxication by itself could not
be raised as a defence for the same reason. If automatism is
successfully established, it would lead to Tom’s acquittal.
Ann’s husband and children were killed in a fire two years ago. Since
that time, Ann had experienced severe bouts of anxiety and depression
for which she was received medical treatment. Recently, Barbara and
her family moved into the house next door. From the outset, relations
between Ann and Barbara were very poor, principally because Barbara’s
children were very noisy and abusive. Additionally, Barbara’s car
alarm which was frequently and unaccountably activated during the
night. The morning after one particularly disturbed night, Ann was
driving her car down the street when she heard Barbar joking with
another neighbour about the car alarm. Ann immediately drove the car
on to the pavement and knocked down and killed Barbara.
Subsequently, she drove the car for about a mile and stopped it by
some waste-land on which a number of children including Howard were
playing. In a complete daze, she walked away leaving the engine
running. Howard got into the car and crashed it into a wall whilst
attempting to drive it. He later died from his injuries.
(a) Discuss the liability of Ann for the murder of Barbara.
(b) Discuss the liability of Ann for the manslaughter of Howard
(c) Explain and evaluate the legal provisions designed to secure
advice and assistance for those charged with serious criminal
(d) Consider the approach of the judges to the sentencing of offenders
and discuss how this might be applied in Ann’s case were she to be
convicted of the manslaughter of either Barbara for Howard.
(a) Murder has been defined as the unlawful killing of another human
being with malice aforethought by any man of sound mind and age of
discretion, death accruing within a year and a day from the last death
causing act or omission.
In order to prove Ann’s liability for the murder of Barbara, the
Prosecution has firstly to prove that Ann caused the death of Barbara
as murder, being a result crime require the proof of not only an act
or omission but also the result as both these elements combine to
constitute its actus reus. Hence the issue of causation becomes vital.
Causation is a question of both fact and law. A factual link must
firstly be established, the question being ‘but for’ the act of Ann
would Barbara have died – (see R v White). The answer would clearly be
in the negative here, thereby establishing factual causation. However
a further question would have to be addressed i.e. is Ann the legal
course of Barbara’s death. Various test have been evolved to determine
this, the most common of which are the tests laid down is R v SMITH &
R v CHESHIRE. Legal causation is established if Ann’s act of driving
into Barbara was the operating and substantial cause of death or even
if it shown to have provided a significant contribution to death. On
the facts of this case this would clearly pose little problem.
The technical term ‘malice aforethought’ encompasses two particular
types of mens rea – intention to kill and intention to cause grievous
bodily harm. Either one of these states of mind will be sufficient
mens rea for murder. - see R v MOLONEY.
Intention would ordinarily mean purpose or desire to bring about a
certain result. (referred to as direct intent). The courts however
have given a wider meaning to the term, described as ‘oblique’ intent.
The cases of MOLONEY, HANCOCK & SHANKLAND & NEDRICK have laid down
that a jury is entitled to infer intention where they felt sure that
death of GBH was a virtual certainty to result from the defendant’s
actions and that the defendant appreciated that this was the case.
Here Ann’s actions may well ‘speak for itself’ about her intention to
at least cause grievous bodily harm to Barbara but it is open for the
jury in any event to infer intention under the principles laid down in
the above cases. From the facts it would seem that the prosecution
will have little problem establishing mens rea.
The facts indicate that diminished responsibility and provocation are
likely defences which Ann can raise if the Prosecution establishes a
prima facie case against her. These are specific and partial defences
established under sec 2 & 3 of the Homicide Act. For the first defence
she would have to prove that at the time she killed Barbara she was
suffering from abnormality of mind arising from a medical condition
(possibly in this case a psychological disease) which impaired her
mental responsibility for her actions. She would succeed if she
satisfies the jury that because of her condition she experienced
difficulty in exercising will-power over her actions which was much
greater than would have been experienced by a normal person.
As for provocation Ann would have to provide evidence that she had
acted as a result of a sudden and temporary loss of self control and
her actions were in no way deliberate or premeditated. The jury will
have to be satisfied that a reasonable man of the same age and sex of
the defendant and sharing such of her permanent characteristics which
are relevant to the provocation would have been similarly provoked to
lose his self control and do what the defendant did. Under the Act
anything (things said or thing done) can constitute provocation.
Therefore the series of incidences here from the noise created by
Barbara’s children, the car alarm and Barbara’s joking about the car
alarm could constitute provocation.
(b) Ann’s liability for the manslaughter of Howard has to be
considered under two heads of liability viz: unlawful act manslaughter
and manslaughter by gross negligence.
For unlawful act manslaughter, three elements have to be satisfied,
viz: the commission of a criminal act; that the act was the cause of
death; and that the act was dangerous, in the sense that it was likely
to cause harm to another.
The issue of legal causation in this case will pose some problem for
the prosecution. The ‘SMITH’ or ‘CHESHIRE’ test will not be
appropriate here. Reliance would have to be placed on the ‘reasonable
foresight’ test laid down in R v ROBERTS & R v PAGGETS. The
prosecution to be answered by the jury is : was the event which caused
death (Howard crashing the car against the wall) was a reasonably
foreseeable consequences of Ann’s act (or her omission in failing to
switch off the engine). The jury’s decision would depend on the
consideration of all the circumstances surrounding the incident,
including the ages of the children.
Assuming causation is established, the Prosecution would have to prove
that Ann’s act of quitting the car with the engine running or failing
to put off the engine is a criminal offence under the Road Traffic or
any other rules. (see Arobieke). Any criminal offence can be the basis
of unlawful act manslaughter. See R v CATO. If it is so established,
then they have to show that the act was such that a reasonable man
would forsee is likely to cause harm (R v CHURCH). Such risk in this
situation may not be too difficult to establish. There is no
requirement in law that the act or omission ought to be ‘directed’ at
the victim. See R v GOODFELLOW.
Ann can alternatively be charged for manslaughter by gross negligence.
Here, it is irrelevant whether or not her act or omission would have
constituted a criminal offence. The law with respect to killing by
gross negligence has recently been restated in R v ADOMAKO (1995). It
involves causing death in circumstances where the risk of death or
grievous bodily harm is reasonably foreseeable but the defendant fails
to foresee it and his failure is so serious as to show extreme
disregard for the life and safety of others. The question for the jury
here is whether having regard to the risk of serious injury to the
children, the conduct of Ann was so bad in all the circumstances as
to amount in their judgment to a criminal act or omission.