In order to establish a successful convictionof murder, a prosecution must prove that the criminal act was caused by theconduct of the accused (actus reus), and the prescribed state of mind (mens rea).The definition of murder is ‘the unlawfulkilling of a reasonable creature in being under the Queen’s peace with maliceaforethought’1. Theactus reus for murder is the unlawful killing of a reasonable creature inbeing, and the mens rea is the malice aforethought which was established in Moloney2(the intention to kill or cause grievous bodily harm (GBH)). Intent is acompulsory element of an offence that must be proved to be convicted formurder, if not then the offence will be manslaughter.There are two types of manslaughter; Voluntaryand Involuntary manslaughter.
The actus reus for involuntary manslaughter andmurder is the same. Anthony’s liability for the death of Zaheer, Richard andYasser shall be considered in details below.Deathof Zaheer: Itcould be argued that Anthony has committed an unlawful act by placing a bombunder a car parked with the aim of detonating it in order to draw attention tohis cause. This, however, resulted in the death of Zaheer. It could be arguedthat Anthony has the actus reus for murder (the unlawful killing of areasonable person), but the mens rea is difficult to establish. Evidently, itcould be argued that Anthony does not have the intention to kill Zaheer, hismotive was to draw attention to his cause to the development of geneticallymodified crops, which was why he detonated the bomb at 3am on Sunday.
In Mohan3,’direct intention was defined as adecision to bring about a consequence, in sofar as it lies within the accused’spower, irrespective of whether the accused desired that consequence of his actor not’. In this case, direct intention cannot be proved.However, it is possible to establish obliqueintention. This arises when a defendant does ‘a prohibited act in other to bring about one particular circumstancesbut it is highly likely another result will occur’. If this is the case,Zaheer’s death may be intended by Anthony, even though he may not have desiredit. Was death or GBH the consequence and aim of the defendant? And did thedefendant recognise it as virtual certainty? The House of Lords struggled withthis question, however, the Court of Appeal in Nedrick4 held’that where the charge is murder and inthe rare cases where the simple direction is not enough, the jury should bedirected that they are not entitled to find the necessary intention, unlessthey feel sure that death or serious injury was a virtual certainty (bearingsome unforeseen intervention) as a result of the defendant’s actions and thatthe defendant appreciated that such was the case’. The judge must directthe jury to find intention, although, this is not compulsory as it wasestablished by the Court of Appeal in Mathewsand Alleyne5 ‘that if the two questions are answered’Yes’ the jury may but does not have to find intention’.Oblique intention has been developed over theyears by case law, it was confirmed and modified in Woolin6, theword ‘Infer’ was replaced with ‘find’ by lord Steyn, it was stated that’if the consequence could be foreseen asa virtual certainty the intention of murder could be found rather thaninferred’.
In this case, it could be argued that Anthony did not foreseethe consequence of Zaheer dying as virtually certain, he never thought anybodywould be on the street at 3am on Sunday, and so the jury would not be directedto find intention from this. Nevertheless, considering the fact that Zaheer isa police officer, it could be argued that he is performing his duty bypatrolling the street to ensure security. This does not mean Anthony has intentto murder. Therefore, he would not be guilty for Murder.
Deathof Richard:In Richard’s case, following the criticaldirection principle discussed above in woolin7,was death or GBH the consequence and aim of the defendant? It could be argued thatdeath or serious harm was never his aim as he timed the bomb to detonate onMonday, when he knew the store is usually closed. Also, it is evident that hehad no foresight that Richard or anybody could be under the store consideringthe fact that it is usually closed on Mondays. Thus, he would not be liable formurder.Deathof Yasser: InYasser case, it is clear that Anthony did foresee death or serious injury as virtuallycertain. He knew the bomb is primed to detonate at noon on a Monday when thestreet is usually busy. It could be argued that Deansgate is a part ofManchester which is usually busy, and there is no way a bomb detonated at noonwould not cause serious injury or death. He knew it may be possible for peopleto be on the street but nevertheless did not foresaw that Yasser would be thevictim. Therefore, Anthony would be guilty of the murder of Yasser, both actusreus and mens rea have been proved.
As Anthony could not be convicted for the murderof Zaheer or Richard his liability for manslaughter will now be considered.There are three types of involuntarymanslaughter; constructive manslaughter, gross negligence manslaughter andCunningham recklessness manslaughter. In most cases, the three types ofinvoluntary manslaughter is always present.Constructive manslaughter involves causingdeath while committing an unlawful or dangerous act. The actus reus is the sameas for murder (unlawful killing of areasonable person who is in being under the Queen’s peace). In this case,it could be argued that Anthony has committed an Aggravated offence of CriminalDamage, under s 1(2) of The Criminal Damage Act 19718,and the mens rea is ‘destruction ordamage to property’.In order for Anthony to be convicted forconstructive manslaughter, there are three element that must be proved; the defendant commit an unlawful act, theunlawful act must be dangerous, the unlawful act must be the substantial causeof the death.
The defendant must commit an unlawful act; it is notnecessary to prove that Anthony’s act was unlawful or dangerous, simple that heintended to do the act. Whether the act is unlawful is clearly a question forthe judge or jury, this was provided for in the case of Lamb9Sachs LJ, noted; ‘that the act must be unlawful in the criminal sense of theword’. Similarly in Andrews v DPP10Lord Atkin held ‘that the unlawful actmust be a criminal one which requires more than negligence on the part of theaccused’. It is clear that Anthony has committed a criminal damage, andalthough the jury must be satisfied that Anthony had the required mens rea forthis offence, as he clearly intended to cause damages. Anthony may argue he didnot realise placing a bomb outside was dangerous but his contention will notsucceed as it was held by the House of Lords in DPP v Newbury11and Jones12 ‘that this is a question of fact for thejury and the prosecution does not have to prove that the accused recognized therisk of danger’.
Thus, Anthony has committed an unlawful act.The second requirement is the unlawful actmust be dangerous, it must be likely to cause injury.it must be noted that thisis an objective test, so the question is would a reasonable person think theact is dangerous? This was illustrated in Larkin13 andwas further explained in Church14 itwas held that ‘the unlawful act must besuch as all sober and reasonable people would inevitably recognise, mustsubject the other person to at least the risk of some harm resulting therefrom,albeit not serious harm’. It could be argued that Anthony have recognisedthat if anybody had been at the scene, they would be at risk of some harm. Thisis demonstrated from the fact that he envisaged that death or serious injurymight occur in the third bomb.
Therefore, it is irrelevant whether or notAnthony realised that the detonation of the bombs would subject the victims toserious harm, the important thing is that a reasonable person would haverealise this. Anthony thus satisfy the objective test of unlawful act isdangerous.The third element that must be proved is thatthe unlawful act was the substantial cause of the death. It must be substantialcause but need not be the only cause. If an intervening act (Novus Actus Interveniens) breaks thechain of causation between the defendant’s unlawful act and the death, thenthis element will not be satisfied. Also, the unlawful act does not have to bedirected at the victim15.
Inthis case, the fact that Anthony planted the bomb is not an act directed at thevictims is irrelevant, it was held in Goodfellow16 ‘that it was not necessary for the actdirected to be directed at the victim, all that is necessary is that there isno fresh, intervening cause between the act and the death’. Therefore,Anthony is liable for manslaughter for the death of Zaheer and Richard as therewas no break in chain of causation. So with all the three element ofconstructive manslaughter proved, Anthony would be guilty of Manslaughter forthe Zaheer and Richard. When looking at Yasser death, there is an interveningact that could break the chain of causation.If any of the constituent part of unlawful actcannot be established, killing by gross negligence may be proved. For a personto be convicted under gross negligence manslaughter the following conditionsmust be proved; the accused owed a duty of care to the victim, a gross breachof that duty, the gross breach of duty causes the victims death17.With reference to R v Adomako18, itcould be argued that Anthony owed duty of care to Zaheer and Richard; and thathe breached the duty of care to such an extent that he created a risk of death19,and the breach was sufficiently gross to warrant being regarded as criminal20.In Attorney-General’s reference (No.
2 of1999)21 itwas held ‘that the offence of killing bygross negligence can be established’ without proof of mens rea on the partof Anthony, although evidence of his state of mind might be relevant inassisting the jury in determining the extent to which negligence was gross.Cunningham recklessness MS requires that thedefendant must be aware of the risk and still go on with it. In Lidar22,the Court of Appeal affirmed ‘that thedefendant must foresee the risk of serious injury as highly probable and takethe unreasonable risk of it’.
It is possible that Anthony foresaw that ifanybody was present at the time the bomb detonated then they were at risk ofsuffering serious injury or death, he may not have foreseen the risk of Zaheerand Richard suffering serious injury as highly probable. Nevertheless, it islikely that Anthony would be found guilty of Cunningham reckless manslaughter. However, when considering Yasser death, thereis an intervening act of death caused as a result of failure to diagnose aruptured spleen, which could break the chain of causation. In other toestablish a conviction for manslaughter, it must be proved that the bombplanted by Anthony is the primed cause of the death. Factual causation will beestablished; ‘but for test’ (but for the defendant’s conduct the victimwould not have died). If Anthony had not planted the bomb, Yasser would nothave been injured for him to be taken to the hospital.
In the legal causation,the defendant’s act must have contributed to the circumstances. It was held in Dalloway23’that even if the defendant had beenexercising all due care and control he would not have been able to avoidinjuring the girl as she jumped out in front of the cart without any warning.But for his negligence the girl would not have been killed’. Anthony’s actof detonating the bomb contributed to Yasser’s death.
Furthermore, the defendant’s act must be asubstantial or operating cause of the consequence, and must be more thanminimal (more than a de minimis)24. Itcould be argued that Anthony’s act was a substantial and operating cause of thevictim’s death, and without the bomb blast, Yasser would not have sufferedserious injury that requires a clinical treatment. In Pagett25 thecourt held ‘that the defendant act werefound to be the substantial cause of the consequences and he was found guiltyof murder. His act were not the sole cause of death, but it was a contributoryfactor of the death, as there can be contributory factors’.The general rule is that medical negligencedoes not break the chain of causation, but ‘thisis subject to the exception that if the medical negligence was so independentof the act of the accused and in itself capable of causing death, that the juryregard the contribution made by the accused as insignificant, which then amountto a break in causation’. In R vJordan26Beldam LJ states that; ‘it will only bein the most extraordinary and unusual case that such treatment can be said tobe so independent of the acts of the accused that it could be regarded in lawas the cause of the victim’s death to the exclusion of the accused’s act’.But in Smith27the judgement was isolated as the case depends on its fact.
However, providedthe chain of causation is broken by supervening factors such as negligentmedical treatment as held in Mellor28. Itis possible for the medical negligence to be just a contributory action anddoes not break the chain of causation. Nevertheless, it could be argued that failureto diagnose medicine could amount to a break in chain of causation, and allowthe victim escape liability. Even if the evidence is capable of showing thatfailure to diagnose medication to Yasser were the sole cause of the death, thecourt might still conclude that this was not ‘so independent of the acts of the accused’ and not sufficient tobreak the chain of causation.In conclusion, as mentioned earlier, the threetypes of involuntary manslaughter could apply in any manslaughter case. Therefore,from the above discussion, it could be argued that Anthony would be guilty ofthe three types of involuntary manslaughter for Zaheer and Richard, and for themurder of Yasser. Although it was not his aim to cause death or serious injuryto any of the three, but it was virtually certain to result from his actions,and a reasonable person would have recognized the possible danger which indeedresulted from his actions.
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Loveless, ‘Criminal Law: Text, Cases and Materials’ (2nd Edition,(2010), Oxford University Press)R. Card, Cross and Jones: ‘Criminal Law’ (20th Edition, (2010), Oxford UniversityPress) Legislation:The Criminal Damage Act 1971 Table of Cases:Andrewsv DPP 1937 AC 576Attorney-General’sreference (No. 2 of 1999 2000 3 All ER 182Church1966 1 QB 59Dalloway(1847) 2 Cox CC 273DPP vNewbury 1977 AC 500Evans(Gemma) 2009 EWCA Crim 650Goodfellow1986 83 Cr App Rep 23 CAJones1976 2 All ER 365Lamb1967 c15 Cox cc 163Larkin1943 KB 174 CALidar2000 4 Archbold News 3, CAMathewsand Alleyne 2003 EWCA Crim 192Mellor1996 2 Cr App R 245Mohan1976 QB 1 CANedrick1986 3 All ER 1 CAPagett(1983) 76 Cr App R 152R vAdomako 1994 3 WLR 288R vJordan (1956) 40 Cr App R 152Smith(1959) 2 All ER 193Woolin1999 2 AC 82 1SirEdward Coke, 3 Inst 4721985AC 905 HL31976QB 1 CA419863 All ER 1 CA52003EWCA Crim 192619992 AC 8271999 2 AC 828’Which states that; ‘ A person who without lawful excuse destroys or damagesany property whether belonging to himself or another-a) intending to destroy or damage any property orbeing reckless as to whether any property would be destroyed or damaged; andb) intending by the destruction or damage to endangerthe life of another or being reckless as to whether the life of another would bethereby endangered;shall be guilty of an offence’.91967c15Cox CC 163101937AC 576111977 AC 500121976 2 All ER 365131943KB 174 CA1419661 QB 59 CA15 Rv Mitchell 2008 EWCA Crim 85016198683 Cr App Rep 23 CA17 Rv Adomako 1994 3 WLR 2881819943 WLR 28819Evans (Gemma) 2009 EWCA Crim 65020(1925) 19 Cr App R 82120003 All ER 182222000 4 Archbold News 3, CA23(1847)2 Cox CC 273 24Cheshire1991 3 All ER 67025(1983)76 Cr App R 27926(1956)40 Cr App R 1522719592 All ER 1932819962 Cr App R 245