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Published: Fri, 02 Feb 2018
A criminally liable is established
A Criminally liable is established if the accused has been responsible for certain conduct proscribed by the criminal law and in relation to this conduct, the accused had the appropriate state of mind laid down by the law.
In Bob’s case there are several relevant areas of law to consider, the first being Homicide.
The scenario identifies that Bob intended to kill his wife, Alice, therefore it is necessary to consider the common law offence, murder. “Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the [Queen’s] peace, with malice fore-thought, either expressed by the party, or implied by law…” Although the law has developed since this quote the general principles remain; the actus reus is the unlawful killing of another, and the mens rea is the intention to kill or cause grievous bodily harm.
Bob threw the bomb with the intention of killing Alice and with no consideration to other people it would effect. However, Alice’s death was not a direct result of Bob’s act. Causation provides it is necessary to prove Bob’s conduct caused Alice’s death. In order to satisfy this Bob must be both the factual and legal cause. Factual or ‘but for’ causation requires that, had it not been for the defendants act, the victim would not have died. Legal causation is established provided the defendants conduct is an operating and substantial cause of the victim’s death. If, however there was a novus actus interveniens this would break the chain of causation and therefore relieve the defendant of liability. Referring to the current scenario, Alice would not have died ‘but-for’ Bob’s conduct. He was an operating and substantial cause, with no intervening act breaking the chain.
Intention takes two forms, direct and oblique. Direct intention is the defendants aim, desire or purpose to bring about a consequence. Oblique intention refers to when defendant may not desire a consequence for its own sake, but that consequence is either a prerequisite to, or by-product of, D’s true aim. Therefore, Bob’s direct intention means he satisfies the actus reus and mens rea for a count of murder against Alice.
When considering the deaths of Karishma and Jake it could be argued that Bob exhibited oblique intention. The authority for this comes from Nedrick, “…the jury should be directed that they are not entitles to infer the necessary intention, unless they feel sure that death or serious bodily harm was virtual certainty.” It may be seen a virtual certainty that others would be harmed by Bob’s bomb, however, this is a subjective test so the stipulation may not be enforced in this case.
Another relevant area of law is transferred malice. The notion operates only when the actus reus and the mens rea of the same crime coincide “The criminality of the doer of the act is precisely the same whether it is A or B who dies.” One authority for this is Latimer. “A man who has an unlawful and malicious intent against another, and, in attempting to carry it out, injures a third person, is guilty of what the law deems malice against the person injured” This indicates that Bob’s intent to kill Alice is transferred on to Karishma. Jake’s death is a clear consequence of the fire which Bob had started and following the rules of causation, transferred malice and oblique intention, it seems likely that Bob could be charged with murder on all three counts.
However, due to the subjective nature of establishing mens rea, Bob could also be charged under involuntary manslaughter. This covers dangerous and unlawful act manslaughter and gross negligence manslaughter. Lord Hope outlined the requirements for unlawful and dangerous act manslaughter. “… (1) whether the act was done intentionally (2) whether it was unlawful (3) whether it was also dangerous because it was likely to cause harm to somebody and (4) whether that unlawful and dangerous act caused death.”. Bob intentionally threw the bomb through the window, resulting in the fire which caused the criminal damage. This act was both unlawful and dangerous as to the “sober and reasonable person” it would be clear that others were at risk of harm from such action.
Where the accused’s conduct causes P’s death, they may be liable for manslaughter by gross negligence. The principles for this offence were set out in Bateman (1925) and developed in Adomako. “…the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore a crime.” In regards to Bob’s case, the duty of care would arise from the creation of a dangerous situation.
In conclusion, the facts of the case combined with the rules of intention and transferred malice indicate that Bob could be charged on three counts of Murder. However, this may be reduced to manslaughter if the jury do not feel he qualifies under the subjective tests.
Criminal Damage can be committed in four ways; the basic offence, the aggravated offence, the basic offence by fire and the aggravated offence by fire. This question considers if Bob has the mens rea for one or all of these offences.
The offences for criminal damage are set out in the Criminal Damage Act 1971. The first offence to examine comes under section 1(1) of the Act. “A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty…” In the case of Bob he satisfies the actus reus for this offence, in that he damaged the building in which his wife worked, which did not belong to him, without lawful excuse. For the mens rea of this offence the prosecution must prove that Bob intended or was reckless as to the damage. Intention, as stated previously, can be direct or oblique. Bob’s intention could be classed as oblique intention as the bomb caused the damage in question. The current definition of Recklessness comes from Lord Bingham. “A person acts recklessly …[in] (1) a circumstance when he is aware of a risk that it exists or will exist; (2) a result when he is aware of a risk that it will occur; and it is in the circumstances known to him , unreasonable to take the risk.”
With this in mind it is clear that Bob does satisfy the mens rea for section 1(1) through oblique intent. Section 1(2) contains the aggravated form of criminal damage. “A person who without lawful excuse destroys or damges any property, whether belonging to himself or another-(a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and (b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered; shall be guilty…” The leading case on s 1(2) is Steer which establishes the offence requires intention or recklessness as to the endangerment of life by the damaging or destruction of property, not merely by D’s act.
Therefore, once again Bob satisfies the actus reus. The mens rea for this offence can be charged in four different ways. The defendant had the intention to destroy or damage any property and the intention by the destruction or damage to endanger the life of another. The second mode to establish mens rea is that the defendant had the intention to destroy or damage any property and was reckless as to whether the life of another would be endangered by the destruction or damage. The third way, and the most relevant to Bob’s case, is that the defendant was reckless as to whether property would be destroyed or damaged and had the intention that by the destruction or damage to endanger the life of another. Finally, the fourth way in which mens rea can be establish is recklessness as to whether property would be destroyed or damaged and recklessness as to whether the life of another would be endangered by the destruction or damage.
Whether either s1(1) or s1(2) is committed by fire, the charge is arson. In Bob’s case we know that to be true so it is important to analyse s.1(3).“An offence committed under this section by destroying or damaging property by fire shall be charged as arson.” The requirements of arson are the same as criminal damage. However, under section 4 arson is punishable by imprisonment for life. Where there is also an allegation of endangerment, there should be separate counts of arson with intent to endanger life and of arson being reckless that life is endangered. In the case of Jones it was established “…setting fire to someone’s house through the use of petrol, the difference between intending to kill and intending to cause grievous bodily harm is not something which calls to be considered…” This implies intention need only be to cause harm.
In conclusion, With all of the possible offences outlined above, it indicates that Bob’s liability is found under s1(2) which is aggravated criminal damage and also Arson s1(3). This can also be supported by several similar cases including the Attorney-General’s References Nos 78, 79 and 85 of 1998 (Robert John Russell and Others) and R. v Basharat Hussain
Acts of Parliament
Criminal Damage Act 1971
Criminal Law Act 1967
Allen, M, Textbook on Criminal Law, 2009, OUP, 10th Edition
Clarkson, C, Keating, H, Cunningham, S, Clarkson and Keating Criminal Law, 2007, Sweet and Maxwell Ltd, 6th Edition
Herring, J, Criminal Law; Text, cases and Materials, 2008, OUP, 3rd Edition
Jefferson, M, Criminal Law, 2007, Pearson, 8th Edition
Ormerod, D, Smith and Hogan Criminal Law, 2008, OUP, 12th Edition
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