Sample on criminal law

Mary and Rose were lovers. One evening Mary and Rose had an argument. Upset, Rose stormed out of the house and went to see her next-door neighbour, Carol. Carol, who was eight months pregnant, was not home but Richard her lodger was. Richard was not in the least sympathetic to Rose and, fed up with her moaning; he punched her in the face and broke her nose. The next day when Mary found out what had happened she placed a snake in a box of chocolates and sent the box to Richard. The snake was of the lesser spotted Jua variety whose bite could cause discomfort to an adult, but was not deadly. The box however was opened by Carol who was bitten by the snake and who suffered puncture wounds to her neck as a result. Carol recovered from the snake bite, but lost her baby which died as a result of the poison entering Carol's system.
Ahmed , Carol's boyfriend and father of the baby, found out who had sent the snake and decided to kill Mary. Ahmed discussed the idea with his brother Mike whilst they both shopped in the local supermarket. Gabriel, Mary' brother, who happened to be in the local shop, overhead what Ahmed planned to do and he confronted Ahmed and spat in Ahmed's face. Incensed, Ahmed grabbed a knife from the counter and told Gabriel he would kill him. Gabriel ran out of the shop and hid in the back of a bin-lorry that was parked outside. When the bin-lorry moved off Gabriel was badly crushed and died of his injuries.
1) State the legal principle-here it will more than likely be the definition of the
offence,break it down into the;
a)actus reus,
b)mens rea,
c)any possible defences
d)apply them to the facts
e)Give supporting authority-case or statute,or both
f)Also ensure that you prove the actus reus, mens rea etc. don't juststate the
ofence/defence,prove them.e.g.for provocation you would need to prove that the D
suffered a sudden and temporary loss of self-control and that the provocation was
sufficient to have caused a reasonable man to have acted similarly(all the while you
support your statements with authority-case law or statute or both and apply to the
facts before you)
harvard
Introduction
In determining the possible charges that each of the above persons might face it is necessary to consider the mens rea and the actus reus for the offences. Having established the criteria needed for such charges to be brought it will be then necessary to discuss any possible defences that each might have. From this it should be possible to reach a conclusion as to the offences committed and the persons that will be charged with the offences. As there are four potential defendants it will be best to discuss the possible charges for each under separate headings.
Richard
In the above it has been stated that Richard punched Rose in the face and broke her nose. In order to determine what Richard might be charged with it is necessary to consider the level of the assault and then the actus reus and mens rea required to prove the offence. Charges can be brought for assault under either s39 of the Criminal Justice Act 1988 (CJA 1988), or the Offences Against the Person Act 1861 (OAPA, 1861) were there are three levels of assault that can be charged. These are listed under s18, s20 and s47 of the OAPA. The degree of injury is used by Crown Prosecution Service (CPS) in determining under which section of the Act the accused should be charged. S18 and s20 offences generally require the victim to have received a wound in which the skin has been broken. Under the charging standards as applied by the CPS injuries such as a broken nose would be covered by a charge under s47 OAPA.
Actus reus under s47
The term actus reus refers to the act of the accused which when combined with either intention on the part of the accused or recklessness causes a crime to be committed. The actus reus for an offence will alter depending on the crime committed. Cases such as Fagan v MPC [1969] 1 QB 439, [1968] 3 All ER 442 and Savage v Parmenter [1991] 4 All ER 698 suggest that the actus reus of assault has been committed when the accused has caused another person to apprehend immediate unlawful violence.
According to Archbold 19-190 a s47 offence is committed when a person assaults another, thereby causing actual bodily harm. The court in R v Donovan [1934] 2 KB 498; 25 Cr App Rep 1 CCA defined bodily harm as any hurt that is calculated to interfere with the health or comfort of the victim. It was decided in this case that there was no requirement for the harm caused to be permanent, but it had to be more than just trifling or transient. Depending on the seriousness of the offence a person convicted of a s47 assault can face up to 5 years in prison.
The courts have distinguished a s47 assault for a s39 CJA by the degree of injury caused as well as the sentencing powers of the court in which the matter will be tried. Case law demonstrates that it is generally accepted that a broken nose or a fracture should be charged under s47 as opposed to s39.
Mens rea
With an assault the mens rea is the same for a s39 assault and a s47 assault. The court need only demonstrate that the accused intended to harm the victim or was reckless as to whether his actions might harm the victim.
When determining the intention of the accused, it is necessary to realise that intention can be oblique or direct. Oblique intention can be inferred in a situation were the accused did not desire the outcome that transpired, but was aware that the person might be killed or injured as a result of their action (R v Moloney [1985] AC 905). By contrast direct intention is where the accused actually desires the eventual outcome of their action (Hyam v DPP [1975] AC 476).
When considering recklessness, the courts have traditionally accepted the definition of recklessness as defined in R v Cunningham [1957] 2 All ER 412. In this case the court considered the accused to be reckless when it could be demonstrated that he was aware of the risk involved in his action yet still continued. In the later case of Metropolitan Police Commissioner v Caldwell [1981] 1 All ER 961 the definition of recklessness was widened to include situations where the accused either considered the risk to be minimal or had concluded that there was no risk at all. Lord Keith confirmed this definition in R v Reid [1992] 3 All ER 673 in which he stated
'absence of something from a person's state of mind is as much part of his state of mind as is its presence. Inadvertence to risk is no less a subjective state of mind than is disregard of a recognised risk'.
Possible charge against Richard
Using the above, it seems likely that Richard would be charged under s47 OAPA for the injury caused to Rose. The court are likely to determine that Richard had the necessary mens rea for the offence as it should have been obvious to him that the action of punching Rose in the face would be likely to cause her some form of harm.
Mary
When considering the situation with Mary it is necessary to also consider the doctrine of transferred malice as Carol was not the intended victim of the attack. It is also necessary to discuss any offences caused by Mary in sending the box of chocolates to Richard with the snake inside.
Malicious Communications Act 1988 (MCA 1988)
Under s1 of the above Act the court will regard an offence as being committed if a letter or parcel has been sent to a recipient with the purpose of causing distress or anxiety. Given that the intention of Mary was to scare Richard by sending the snake it would seem appropriate for charges to be brought under this Act. The actus reus for this offence occurs when the accused posts or delivers the letter or parcel to the recipient. The mens rea for the offence can be inferred from the fact that Mary either intended to cause harm or fear to Richard or was reckless as to the harm that might be caused.
Transferred malice
In the scenario above, Mary's intended victim had been Richard. Unfortunately, Carol undid the box of chocolates and was bitten by the snake. As Carol was not the
ntended target of the attack it is necessary to discuss the doctrine of transferred malice (R v Latimer [1886] 17 QBD 369). In Edwards v R [1973] AC 648 Lord Bingham described transferred malice in the following terms.
'there is a doctrine that is called 'Transferred Malice' and what it means, is if I pointed a gun at individual A with intention to kill or cause serious bodily injury to individual A and B is standing nearby and the bullet from that intentional act causes В to die, it misses and hits B, then the law says that the intention to kill or to cause serious bodily injury to A is transferred to B. And, if you found that the act, the intentional act of firing a gun at A with the necessary intent causes B to be killed, then the person who did that is guilty of the offence of murder.'
Lord Diplock affirmed this view in R v Mowatt [1968] 1 QB 421 [1980]2 WLR 239 in which he stated that
it is unnecessary that the accused should have foreseen that his unlawful act might cause some physical harm of the gravity described.. It is enough that he should have foreseen that some physical harm to some person might result'. (R v Corbett [[1996] Crim LR 594;R v Roberts [1971] 56 CR App R 95).
Applying the above to the situation with Carol it could be argued that Mary is responsible for the harm caused to Carol and the baby under the doctrine of transferred malice.
Using the same principle of transferred malice, Mary could face a charge of manslaughter for causing the death of the unborn child inside Carol, as was the case in Attorney-General's Reference (no 3 of 1994) [1996] 2 WLR 412. In this case, the defendant had stabbed the pregnant victim in the stomach. The woman received treatment for the wound and the doctor's, at that time did not think that the baby had been harmed. The baby was born premature 16 days later and died 121 days after birth. The primary cause of death was proven to be the stab wound inflict on the mother. The accused was charged and found guilty of manslaughter using the doctrine of transferred malice.
Ahmed
In the case of Ahmed it is necessary to discuss whether he might face charges for conspiring to kill Mary, as well as charges he might face in relation to the death of Gabriel. It is also necessary to consider whether Mike might also be charged with conspiracy to murder, as he was discussing this with Ahmed when Gabriel overheard the conversation. In order to determine whether conspiracy can be charged it is necessary to examine the law in relation to inchoate offences. Within this section it will also be necessary to discuss the chain of causation and the defence of provocation in relation to the death of Gabriel. From there it should then be possible to determine any charges that might be brought against Ahmed and Mike.
Inchoate offences
Inchoate offences include assisting ( R v Mahmood [2005] EWCA Crim 2168) or encouraging a crime (R v S [2005] EWCA Crim 819) as well as conspiracy to commit a crime or incitement to commit a crime (R v Bryce [2004] EWCA Crim 1231). Inchoate offences are where the accused does actions that are likely to lead to a crime being committed. An accused can be charged with an inchoate offence even if the main offence is not committed. Incitement can be charged if the defendant has attempted to persuade another to assist them in the commission of a crime (R v Levin [2004] EWCA Crim 408).
Actus reus for incitement
The courts have accepted the actus reus for incitement as being persuading (R v Ahmed [2006] EWCA Crim 622), encouraging (R v C [2005] EWCA Crim 2827) or threatening ( R v Nbakwa [1956] (2) SA 557) a third party in order to get them to assist in a crime. If the parties agree to the commission of the court then a charge of conspiracy will apply (R v Bowman [1997] 1 Cr App R (s) 282).
Mens rea for incitement
According to case law the mens rea for the offence of incitement occurs when the person incited agrees to assist with the commission of the offence (Invicta Plastics Ltd v Clare [1976] RTR 251). For a defendant to be charged with incitement the person being incited has to have known that the act he was being asked to commit was criminal (R v Curr [1968] 2 QB 944).
When considering conspiracy it is necessary to examine the Criminal Attempts Act 1981 s5 which states that a person will be guilty of the offence of conspiracy if that person agrees with another on a course of conduct that will lead to the commission of an offence (R v Webb [2006] EWCA Crim 962). Obviously for the actus reus to be complete there must be at least 2 persons involved. The persons concerned must agree to the carrying out of the act and must communicate their willingness to take part to the other party. Courts have accepted as proof of the mens rea of the offence situations where the parties had agreed to commit an offence without requiring proof that the person intended to assist with the offence (R v Anderson [1986] AC 27). The courts have also found persons guilty of conspiracy in situations where the crime they had agreed to commit was impossible to commit (R v Fitzmaurice [1983] QB 1083).
In the above the parties were discussing killing Mary, however, because Gabriel interrupted their discussion, there is nothing to suggest that the parties had agreed to commit the offence. For this reason, it would be unlikely that Ahmed would be charged with conspiracy, although he is likely to be charged with incitement.
Chain of causation.
When determining liability for Gabriel's death it is necessary to examine whether the chain of causation was broken as a result of him running out of the shop. The court has deemed the chain of causation to be broken as a result of the actions of a third party (R v Pagett (1983) 76 Crim App Rep 279) or the actions of the victim (R v Roberts (1971) 56 Cr. App. R. 95). In some cases inappropriate or incorrect medical treatment is deemed to have broken the chain (R v Jordan, 1956 40 Cr App R 152 CA.). To determine whether there has been a break it is necessary to examine case law in this area.
Corr v IBC Vehicles Ltd [2008] UKHL 13; Times, February 28, 2008 demonstrates a recent case where the court held that the actions of the deceased had broken the chain. In this case the deceased committed suicide as he was unable to live with the disfiguring injury he had received whilst he was working. The widow brought an action against the company on the grounds that they had failed to deal with her husband's depression. The court held that the foreseeability that the husband would commit suicide was remote and the act should be regarded as a novus actus inteveniens.
An earlier case of R v Ogunbowale [2007] EWCA Crim 2739 also demonstrates how an intervening event can break the chain. In this case the blow delivered by the defendant was not the cause of death. The victim died as a result over falling to the ground after the attack and banging his head.
It could be argued in the situation above that the act of Gabriel jumping into the dustbin cart broke the chain of causation. If the court agreed with this, it would mean that Ahmed could avoid liability for his death. Alternatively the court might decide that Gabriel would not have run and hid in the dustbin cart if Ahmed had not picked up the knife. On this principle Ahmed might be found guilty of the murder of Gabriel on the grounds that his actions caused Gabriel to flee for his safety, and hide in the cart.
Provocation
If the court decide that Ahmed is to be charged with the murder, he might be able to persuade the court to reduce the charge to manslaughter if he can prove that he was provoked by Gabriel spitting in his face. Provocation can only be averred where the victim dies as a result of the attack (Homicide Act 1957 s3; R v Duffy (1949) 1 AER 932). This defence is only used as a means of lessening the charge from murder to manslaughter as it relies on the accused admitting killing the victim, but offering an explanation for their actions. Those relying on provocation are likely to be found guilty of manslaughter based on their own admissions, if the court accepts the defence.
Provocation was defined in R v Duffy [1949] 1 All ER 932 where the courts stated that provocation is
some act or series of acts, done by the dead man to the accused, which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.
In order to establish provocation as a defence the accused must show that the victim was partly responsible for the attack. The action of the victim causing the accused to be provoked does not have to be physical. Provocation can occur as a result if things said or done by the victim. In R v Doughty [1984] Crim LR 625 the court accepted that a crying baby might be sufficient provocation to cause the defendant to lose self control.
In determining what can be regarded as sufficient provocation the court will judge the behaviour of the accused according to whether a reasonable man might have acted in the same manner in the same circumstances. When averring provocation the burden of proof is on the defence (R v Doughty (1986) 83 Cr App R 319). The accused must prove that as a direct result of the provocation they lost self control (R v Cocker [1989] Crim LR 740). The test for provocation requires the defence to prove that a reasonable man in the same situation would react in the same manner (R v Acott [1997] 1 WLR306).
In the above Ahmed could argue that the action of Gabriel spitting in his face provoked him to go after Gabriel and that he temporarily lost self-control when he picked up the knife to threaten Gabriel. If the court accepts this then the charge of murder would be reduced to manslaughter.
Conclusion
From the above it can be concluded that Richard would be charged with s47 assault as he had the necessary mens rea and actus reus for the offence. It should have been obvious to him that punching Rose would be likely to cause her harm. With Mary, she could face charges under the MCA for sending the chocolates to Richard with the snake inside. She might also face charges under the doctrine of transferred malice for the injury caused to Carol by the snake biting her as well as the possibility of being charged with the manslaughter of the unborn child. Ahmed is likely to be charged with incitement to kill in relation to the conversation he was having with Mike. If Mike had agreed to assist him with this action then the charge would be conspiracy to kill. Ahmed could also be charged with murder with regard to the death of Gabriel, although this could be reduced using the defence of provocation. Alternatively, Ahmed might avoid liability altogether for Gabriel's death, if the court are persuaded that the actions of Gabriel amounted to a novus actus interveniens.

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Sample on criminal law 9.5 of 10 on the basis of 1242 Review.