Criminal Liability Murder Manslaughter
Terry owes Sid 5000 pounds but is refusing to pay. Sid instructs Basher and Crusher to " give Terry a thorough going over" or else..
The following week Basher and Crusher approach Terry in the local park where he is walking with his wife, Petunia. Each takes out a wooden baton and strikes Terry repeatedly with it. A terrified petunia runs off. In doing so, she falls over a flower trough, trips and crashes to the ground, sustaining serious head injuries. Crusher takes a knife from his pocket and stabs Terry in the neck, killing him. Petunia is taken to hospital but dies a few days later from her injuries.
Discuss the criminal liability of Sid, Basher and Crusher arising from the above facts.
As Petunia and Terry have died from their injuries, liability may arise for murder or manslaughter. As not all of the parties were directly involved in the deaths, it is necessary to consider primary and secondary liability (principals and accessories).
Terry died from stab wounds inflicted by Crusher who may be liable for the common law offence of murder. By stabbing Terry, Crusher has caused death satisfying the actus reus and inflicted a wound deliberately indicating that he intended at least grievous bodily harm so the mens rea of murder is also satisfied and liability for murder is established.
Basher did not contribute to the infliction of the wound but was present and had attacked Terry with a baton. As he did not make a direct contribution to the actus reus (there is no suggestion that death occurred from a combination of injuries inflicted with batons and the stab wound) he cannot be liable as a principal but may incur liability as an accessory to murder. Section 8 of the Accessories and Abettors Act 1861 states that the actus reus is satisfied if the defendant ‘aids, abets, counsels or procures’ the commission of an offence. Although passive presence at the scene would not suffice, Basher’s involvement in the planned attack on Terry would suffice to establish the actus reus as an accessory unless he argues that the use of a knife is an unexpected departure from the common plan. The use of a weapon different in nature from that agreed will destroy the consensus that characterises joint enterprise and absolve Basher from liability for Terry’s death. This will hinge upon whether Basher was aware that Crusher was carrying a knife, even if this awareness only occurred seconds prior to the stabbing.
Although Sid was not present, he may be an accessory to murder as the person who commissions an offence is a procurer for the purposes of secondary liability. The mens rea is twofold: there must intention that the offence be committed (he ordered the attack) and knowledge of the nature of the offence. Sid may argue he did not know that Terry would be killed, that he only ordered non-fatal harm. The success of this argument is contingent upon whether he contemplated Terry’s death as a potential outcome. If so, this will suffice for liability as an accessory to murder. Sid may argue that he did not contemplate Terry’s death; certainly, it is unlikely that he wanted this outcome as Terry would not be able to repay the money if he were dead. However, given the unpredictable outcome of violence, it may be argued that Sid must have realised that death was a possibility thus it would have been within his contemplation. Much depends on Sid’s knowledge of Basher and Crusher’s propensity to use weapons and the level of violence that they have been known to use in the past.
Petunia died from injuries incurred falling over a trough whilst running away from the attack on Terry. Basher and Crusher may be liable if they have caused Petunia’s death. Factual causation is established using the ‘but for’ test; but for the attack, would Petunia have died in the way she did? As the answer is ‘no’, factual causation is established. Legal causation isolates a culpable factual cause upon the basis of foreseeability. It must be established that the conduct is a ‘substantial and operating cause’ of death. In Pagett, it was held that the defendant’s act need not be the sole, or even the main, cause of death provided that it is a cause. The attack on Terry in the presence of his wife rendered her flight inevitable and it is foreseeable that someone fleeing in panic would fail and sustain injury. Therefore, it is likely that Basher and Crusher will be the legal cause of Petunia’s death. This is supported by the defenestration cases whereby the defendant retains liability for injuries sustained escaping from them provided the victim’s response was not ‘so daft’ as to be unforeseeable. It is foreseeable that a person witnessing a violent attack on her husband might be in fear for her safety and thus run away to escape. Her conduct would not constitute a novus actus interveniens that would break the chain of causation thus the actus reus of murder is established.
Basher and Crusher are unlikely to have the mens rea for Petunia’s murder. They did not attack her thus there is no indication of an intention to kill or cause her grievous bodily harm. It is also difficult to see how, in the circumstances, it could be said that they foresaw that death or serious injury was a virtually certain consequence of their conduct. The doctrine of transferred malice is unlikely to be applicable here as this was not an instance where harm directed towards one victim was actually sustained by another; something qualitatively different happened to Petunia to that which was directed against Terry.
As the mens rea is not satisfied, the defendants may be liable instead for unlawful dangerous act manslaughter. This requires that the defendants commit a criminally unlawful act such as their attack on Terry, which is objectively dangerous. Whilst it is true to say that the attack carries a risk of harm to the direct victim of the attack (Terry), it is possible that the ‘sober and reasonable person’ would not see that this carries a risk of harm to an observer, even one who is emotionally attached to the victim. If the conduct is not dangerous, there can be no liability for constructive manslaughter even though it could be said that the defendants caused Petunia’s death. It is also unlikely that they will be liable for gross negligence manslaughter as this is an offence based upon a criminally culpable breach of duty that causes death. There is no basis for a duty of care to Petunia thus this seems an unlikely basis for liability. It seems that no criminal liability arises from Petunia’s death.
Bibliography
Smith, J.C., (2002) Smith and Hogan Criminal Law, 10th ed., London: Butterworths
Card, R., (2004) Card, Cross and Jones on Criminal Law, 16th ed., London: Butterworths
Case List
Andrews v. DPP [1937] AC 576
Attorney- General’s Reference (No 1 of 1975) [1975] 2 All ER 686
Attorney-General for Northern Ireland v. Maxwell [1978] 3 All ER 1140
Attorney-General’s Reference (No 3 of 1994) [1997] 3 WLR 421
DPP v. Dally and McGhie [1986] AC 237; R v. Williams and Davis [1992] 1 WLR 380
R v. Adomako [1995] 1 AC 571
R v. Bryce [2004] EWCA Crim 1231
R v. Cairns [1999] 2 Cr App R 137
R v. Cheshire [1991] 3 All ER 670
R v. Church [1966] 1 QB 59
R v. Clarkson [1971] 3 All ER 344
R v. Dawson, Nolan and Walmsley [1985] 81 Cr App R 150
R v. Pagett (1983) 76 Cr App R 279
R v. Powell; R v. English [1997] 3 WLR 959
R v. Roberts (1971) 56 Cr App R 95
R v. Uddin [1999] QB 431
R v. White [1910] 2 KB 124
R v. Woollin [1997] 1 Cr App R 97
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