Case Study On Criminal Liabilities And DefencesUsed Law Essay

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Case Study: Raquel is lazy. Boris, her line manager, assigns her an important, but menial, task. Shefails to complete this task, and tells him that she did not do it because she is 'not his servant'. Borisloses his temper, and kills Raquel.

Boris claims that he found Raquel's behaviour particularly infuriating because 'women should knowtheir place'. He has trouble controlling his temper because of the pain from an old war wound. AdviseBoris about his criminal liability.

During the attack, he accidentally hits Zhanna, another co-worker, causing her severe bruising.

Boris may be liable for offences against both Raquel and Zhanna. In relation to Raquel, Boris may becriminally liable for her murder. In relation to Zhanna, Boris may be liable for one or more of severaloffences including Battery, Assault Occasioning Actual Bodily Harm and/or Assault OccasioningGrievous Bodily Harm. Liability, possible defences and mitigating circumstances will be considered inturn.

Boris’ Liability for the murder of Raquel

In order to be criminally liable for the murder of Raquel, the Prosecution will have to prove the elementsof murder. Coke’s Institutes defined murder in 1797 as being committed “where a person of soundmind and discretion unlawfully kills any reasonable creature in being…with intent to kill or causegrievous bodily harm” . This principle has been built on by modern case law but not fundamentallyaltered and still applies today. Applying this definition to Boris’ case, there does not appear to be anycontention as to whether Boris killed Raquel; Boris clearly states that he committed the act. WhetherBoris was of sound mind will be considered but again, there is clear evidence that Boris intended to killor cause grievous bodily harm to Raquel.

There are a number of total and partial defences for murder. The defence of self defence is an absoluteone and would result in Boris being absolved of all liability but this does not apply in this case.However, there are partial defences in law which may reduce Boris’ liability from committing murder tocommitting manslaughter. These three circumstances are Provocation, Diminished Responsibility andacting in pursuance of a suicide pact. Obviously the third circumstance does not apply but the first twoshould be considered.

The Defence of Provocation

The partial defence of Provocation only applies to the offence of murder and has the effect of reducingliability from that of murder to manslaughter. Should Boris plead provocation, he would have to acceptall elements of murder put by the Prosecution including the intention to kill Raquel . It would be unlikelythat Boris would object to this however as evidence would suggest that he has already admitted tokilling Raquel. S3 Homicide Act 1957 governs the law as to provocation stating that in a murder case“there is evidence on which the jury can find that the person charged was provoked (whether by thingsdone or by things said or by both together) to lose his self-control, the question whether theprovocation was enough to make a reasonable man so as he did shall be left to be determined by thejury; and in determining that question the jury shall take into account everything both done andsaid… ” Should Boris seek to rely on this partial defence the onus of proof would still rest with theProsecution and thus arguably, Boris would not have to prove that he lost self control. Rather, the

Prosecution would have to prove that he was in control and had not been provoked to the point inwhich the reasonable man would have acted in the same manner. Whilst the onus would not be onBoris, the evidence that he did in fact lose self-control, to such a degree, must satisfy the jury . Caselaw has provided some clarification as to the defence of provocation. The case of R v Duffy wasreferred to as still being good and current law by Lord Goddard C J in R v Whitfield: “ Provocation issome act, or series of acts, done…which would cause any reasonable person, and actually causes inthe accused, a sudden and temporary loss of self control, rendering the accused so subject to passionas to make him or her for the moment, not master of his mind. ” Clearly the jury would not only have tobelieve that a reasonable person would have lost self-control in his situation, but that at the time Boriskilled Raquel, he was literally out of his mind.

A further consideration needed to be taken by the jury when considering whether Boris was provokedinto killing Raquel, is the character and nature of Boris’ personally. There has been some legalargument in recent years as to whether the reasonable man test should be so objective as to not takeany consideration as to the personality characteristics of the defendant. This was resolved in the caseof AG for Jersey v Holley in which it was held that whilst characteristics of a violent temperament orsensitivity should be considered by the jury, there should be an objective standard of self control basedon the defendant’s age and sex which must be applied to all . Boris states that his motive for killingRaquel is that her behaviour was “particularly infuriating” to him because “women should know theirplace”. Boris’ being a misogynist does not equal the characteristic of seminal cases in which suchcharacteristics as being a glue-sniffer were a consideration . S3 of the Homicide Act 1957 does allowthe jury to consider the characteristics of the defendant as they must consider everything said and doneand thus, if a glue sniffer is taunted for his addiction, this should be considered as more of aprovocation that had those words been said to a non-addict. However, it is less clear in Boris’ casewhether Raquel’s words should have more of an effect on Boris than other people in his position. Thisis partly because Raquel’s behaviour toward Boris had nothing to do with his being a misogynist.Furthermore, though there is no case law on misogyny as a characteristic to be considered by a jury, itis unlikely that this would fall under the same category of abnormal characteristics. Subsequently, it ishighly unlikely that Boris could have this characteristic considered within the issue of provocation.

The question of whether a reasonable person would have acted as Boris did is unlikely to result in afavourable outcome for Boris. Raquel’s behaviour was not extreme enough to result in an ordinaryperson losing all self control. Again, it would be fairly easy for a prosecutor to persuade the jury thatBoris, as a reasonable person, did not lose all self control. Perhaps more significantly there is littleevidence to suggest that Boris did personally lose all control at all. His reason for killing Raquel, whilstbeing extreme, was rationally decided upon. By his own admission, Boris killed her because he foundher behaviour particularly annoying due to her being a woman. He makes no reference in his evidenceof losing control at all. Consequently provocation would not be proven and Boris would still be liable formurder.

The Defence of Diminished Responsibility

Boris has claimed that he has difficulty controlling his temper due to an old war wound. Arguably, thiscould be raised in relation to provocation in that it is an abnormal characteristic. However, this is aweaker argument than referring to Boris’ misogyny as characteristics appear to only be applied incases in which the provoking act itself relates to the reason for losing self control. This is not the casein relation to Boris.

The partial defences of Diminished Responsibility would have the same effect upon Boris’ liability asProvocation and subsequently would reduce the offence from murder to manslaughter. S6 (b) of TheCriminal Procedure (Insanity) Act 1964 states “Where on trial for murder the accused contends…that atthat time he was suffering from such abnormality of mind as is specified in subsection (1) of section 2of the Homicide Acts 1957 (Diminished Responsibility)…” Again, the onus of proof is upon theprosecution to disprove that Boris was not suffering from such mental impairment but Boris’ evidencemust satisfy the jury that he was suffering from a high state of abnormality of mind. Should the

Prosecution accept Boris’ plea of guilty to Manslaughter on the grounds of Diminished Responsibility itis likely that a hospital order would be made . There is no evidence as to any psychiatric report onBoris’ state of mind but the evidence available does not indicate a wound which results in his mindbeing impaired. Rather, it would appear that Boris has a short temper not an abnormality of mind andsubsequently, it is unlikely that Boris could successfully plead Diminished Responsibility.

Boris’ liability for the injuries sustained by Zhanna

With regard to Zhanna, the offence which Boris may be liable for is contingent upon the injuriessustained. The most likely offence that Boris will be liable for in Zhanna’s case is Assault OccasioningActual Bodily Harm contrary to S47 of the Offences Against the Persons Act 1861. The Prosecution willhave to prove that an assault was carried out and that this caused the harm to Zhanna.

For Boris to be held liable for assault and the injuries sustained, he must have acted intentionally orrecklessly causing Zhanna to apprehend immediate unlawful violence . Though Boris had no hostileintent in regard to Zhanna, he is still liable for the assault should it be determined he acted recklessly .The evidence would suggest that indeed Boris may have been reckless in his behaviour. The test forrecklessness is laid down in R v Cunningham and holds that the defendant must have some foresightof the victim apprehending violence. The evidence does not state where Zhanna was when Boris killedRaquel or how the murder was committed and so definitive advice as to liability is not possible.However, there is a clear implication that Boris killed Raquel in a work environment in which otherpeople were employed and thus, it is not unlikely that people would have been in the vicinity and mayhave been endangered by his actions. The reasonable person would have some foresight into whetherother people may be affected by the violent act. Thus, it seems likely that Boris is liable for assaultingZhanna.

Boris’ Liability for Assault Occasioning Actual Bodily Harm

Having ascertained that Boris is liable for an assault against Zhanna, the extent of the injuries mustnow be considered to determine the possible offences Boris may be charged with. It is highly unlikelythat Boris will be charged with mere Assault and Battery. This offence may be on the indictment in thealternative but Battery often only applies in cases where unlawful touching has taken place but noinjuries sustained . As aforementioned, it is far more likely that Boris will be liable for AssaultOccasioning Actual Bodily Harm. The elements of this offence are the same as Assault but unlikeBattery, more serious harm has been inflicted on the victim. The Mens Rea of an offence contrary tos47 is the same for an assault and subsequently, Boris can be found guilty for acting recklessly.

Zhanna has clearly suffered bodily harm and her injuries are not transient of trifling . It is likely thatsevere bruising is serious enough to warrant an offence of Actual Bodily Harm.

The possible offence of Wounding Causing Grievous Bodily Harm contrary to s20 of the OffencesAgainst the Persons Act 1861 should also be considered. This would be the most serious offence Boriscould be liable for in relation to his assault of Zhanna. Arguably Zhanna’s severe bruising is seriousenough to constitute it as grievous under the Act as s20 does not require the injury to be permanent ordangerous . The extent of the injury is contingent upon the effect of them on the particular victim andso more information regarding Zhanna’s injuries would be needed before conclusively advising as toBoris’ liability in this matter. Should the injury have caused serious complications such as muscle ormobility damage, it may well be considered grievous. The evidence known so far would indicate that inrelation to Zhanna, Boris is likely to be liable for Assault Occasioning Actual Bodily Harm rather than amore serious offence although the Prosecution may feel it appropriate to add Grievous Wounding tothe indictment with Actual Bodily Harm as the alternative.

Bibliography:

Cases

R v Martindale 50 Cr.App R 273.

R v Cox (A.M) [1995] 2 Cr.App.R 513

R v Whitfield 63 Cr.App.R 39 at 42

R v Duffy [1949] 1 All E.R. 932.

Attorney General for Jersey v Holley [2005] 2 A.C. 580, PC.

R v Mohammed (Faqir) [2005] 9 Archbold News 3 CA.

R v Morhall [1996] AC 90

Fagan v Metropolitan Police Commissioner [1969] 1 QB 439, 52 Cr.App.R 700.

R v Lamb [1967] 2 Q.B. Cr.App.R. 417

R v Williams (G) 78 Cr. App.R. 276 at 279 CA.

R v Donovan [1934] 2 K.B. 498 25 Cr. App.R. 1. CCA

R v Ashman (1858) 1 F & F. 88

R v Bollom, The Times Dec 15 2003 CA.

R v Cunningham [1957] 2 Q.B. 396. 41 Cr.App.R. 155 CCA

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