Answers
MURDER #Seminar 1 Week 11
VOLUNTARY MANSLAUGHTER #Seminar 2 Week 12
INVOUNTARY MANSLAUGHTER #Seminar 3 Week 13
ASSAULTS AND RELEVANT DEFENCES #Seminar 4 & 5 Weeks 14 & 15
PARTIES #Seminar 6 Week 16
CONSPIRACY, INCITEMENT & OTHER CRIMES #Seminar 7 & 8 Weeks 17 & 18
MURDER
Read question carefully to the end to understand the task.
Discuss Murder, Concurrence and Causation at a general level.
(i) Murder - a common law offence. There is no statutory definition. Consists of an unlawful killing of a person in being under the king's peace with malice aforethought (Coke). An unlawful killing is one which is not justified in law. Malice aforethought means intention. Intention has a special meaning in law. Either the accused intends to kill or caused serious harm, death resulting (specific intent) or the accused recognises that death or serious harm would be virtually certain to result from his or her voluntary conduct Nedrick, Woolin.
(ii) Concurrence - the actus reus and mens rea of a crime must coincide in time or in law. Where this presents a problem re: time the law has developed a formula treating the events as a 'series' - Thabo Meli, Church.
(iii) Causation - where there is more than one cause of death responsibility has to lie at someone's door. The law has devised a two-limb test. The 'but for' test which deals with factual causation and the 'legal or proximate cause' test which deals with the allocation of moral responsibility. There may be an event that breaks the chain of causation - the victim, 3rd party act of God or nature.
Discuss the ILAC formula -
I = WHAT ARE THE ISSUES IN LAW
L = WHAT ARE THE RELEVANT AREAS OF LAW
A = APPLY THE LAW TO THE FACTS
C = CONCLUDE
Q1. Has J unlawfully killed Mary's child and Mary?
Murder = unlawful killing of a person in being with malice aforethought. The child and M have been unlawfully killed - actus reus satisfied.
Did J have the requisite mens rea? Malice aforethought is either specific intent or oblique intent. Specific intent requires that J intended death or serious harm. Can it be argued that realising a 'serious risk' in relation to the child constitutes an intention to cause serious harm? Unlikely. J clearly intended serious harm to M when he hit her over the head with the spade. Conclusion is that J does not have the mens rea for murder in relation to the child but he does have the mens rea for murder in relation to M.
Concurrence - in relation to M the actus reus and mens rea do not coincide. This will be treated as a 'series of acts' Thabo Meli.
Q2. Has the conduct of D satisfied the requirements of murder? The definition is as above. The actus reus has been established - unlawful killing of a person in being. The question as to his mens rea will depend on the question of capacity - can he rely on the insanity rules? If so he may be unfit to plead.
There is the question of causation. The but for test - factual causation - but for D hitting V she would not have been injured and died. The issue is whether the re-opening of the injury breaks the chain of causation - was the original wound an operating and substantial cause of death or merely part of the history? Smith.
VOLUNTARY MANSLAUGHTER
Discuss the meaning of involuntary manslaughter.
Relates to 3 defences that are specific to murder - diminished responsibility, provocation and suicide pact. Contained in the Homicide Act 1957 (HA). If successfully pleaded will reduce a charge of murder to one of manslaughter.
Diminished responsibility s.2(1) Homicide Act 1957
'Where a person kills or is party to the killing of another, he [she] shall not be convicted of murder if he [she] was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development or any inherent causes or reduced by disease or injury) as substantially impaired his [her] mental responsibility or his [her] acts and omissions in doing or being party to a killing.'
Preliminaries: burden of proof rests with defendant on balance of probabilities (whether it is more likely than not that the defendant was suffering from diminished responsibility at time of murder). Evidence of diminshed responsibility must be supported by medical proof.
What is meant by abnormality of mind?
'A state of mind so different from that of ordinary human beings that the reasonable person would term it abnormal. It covers the mind's activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgement as to whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with rational judgment. The expression 'mental responsibility for his [her] acts' points to a consideration of the extent to which the accused's mind is answerable for his [her] physical acts which must include a consideration of the extent of his [her] ability to exercise will power to control his [her] physical acts.' See Lord Parker CJ in R v Byrne [1960] 2 QB 396.
Proof of abnormality of mind must substantially impair the defendant's acts and omissions -see s.2(1) H.A.
Provocation
'Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or things said or by both together) to lose his [her] self control, the question whether the provocation was enough to make a reasonable man [person] do as he [she] did shall be left to the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man [person].' S.3(1) H.A.
Preliminaries: the defendant need only introduce some evidence of provocation. It is the job of the prosecution to rebut this evidence by proving beyond reasonable doubt that the defendant was not provoked.
What is provocation?
Any words or action see Doughty (baby crying).
It is not enough that the defendant was provoked, there must be provoking words or acts Acott.
The defendant must show that he [she] was provoked to lose self control and that the provocation was enough to make a reasonable person lose self control and do as he [she] did.
There are 2 limbs: 1) defendant lost self control = subjective.
2) a reasonable person would have lost self control and do as the defendant did = objective
Subjective limb - the defendant must have lost self control. The loss of self control must be 'sudden and temporary' Duffy.
Objective limb - Who is the reasonable person?
'It means an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such powers of self control as everyone is entitled to expect from ….fellow citizens will exercise in society as it is today…To taunt a person because of his [her] race, ….physical infirmities or some shameful incident in [the] past may well be considered by the jury to be more offensive to the person addressed, however equable his [her] temperament…' DPP v Camplin [1978] AC 705 HL.
R v Smith [2000] 3 WLR 654 HL
A case that re-examined the law on provocation and the Camplin case in particular:
Camplin is not a 'one-size-fits-all' direction for every case of provocation.
The jury is entitled to act upon its own opinion whether the objective element of provocation has been satisfied and the judge is not entitled to tell them to exclude form consideration any of the circumstances or characteristics of the accused.
Gravity of provocation and loss of self-control distinction - The purpose of the objective element is to mark distinction between partially excusable and inexcusable loss of self-control. A distinction is to be made with characteristics affecting the gravity of the provocation and characteristics affecting the loss of self-control. The law should continue to insist that people must exercise self-control.
Once there is evidence of provocation the judge should be able to tell the jury that the question whether such behaviour fell below the standard which should reasonably have been expected for the accused was entirely a matter for them. For example, whether the crying of a baby is capable of amounting to provocation is a matter, not for the judge, but for the jury.
The reasonable person - has become highly artificial producing monsters like the 'reasonable obsessive', the 'reasonable depressive alcoholic', the 'reasonable glue sniffer'.
The concept of reasonable person is the legal principle that even under provocation, people must conform to an objective standard of behaviour which society is entitled to expect. Judges may find it helpful to explain in simple language the principles of the doctrine of provocation, no prescriptive formula but judges should be freed from the necessity of invoking the formula of the reasonable person equipped with an array of unreasonable characteristics.
The jury direction should be along the following lines:
The accused should have killed while he or she had lost self-control and something should have caused the accused to lose self-control.
The fact that something caused the accused to lose self-control is not enough. The law expects people to exercise control over their emotions. A tendency to violent rages or childish tantrums is a defect in character rather than an excuse. The jury must think that the circumstances were such as to make the loss of self-control sufficiently excusable to reduce the gravity of the offence from murder to manslaughter. In deciding what should count as a sufficient excuse, the jury have to apply what they consider to be appropriate standards of behaviour, on the one hand making allowance for human nature and the power of emotions but, on the other hand not allowing someone to rely upon his or her own violent disposition. The jury has to decide the degree of self-control that society is entitled to expect of their fellow citizens. As society advances, it ought to call for a higher measure of self-control.
The general principle is that the same standards of behaviour are expected of everyone, regardless of their individual psychological make-up. In appropriate cases the jury should be told that this is a principle not a rigid rule. So the jury might think that there was some characteristic of the accused, whether temporary or permanent, which affected the degree of control which society could reasonably have expected of the defendant and which it would be unjust not to take into account
Apply law to facts.
a) Jack. If there is sufficient evidence of a charge of murder then consider the defence of provocation. Is there evidence of provocation? Was J acting in self- defence or was he provoked? Johnson. M called J names. Is name calling sufficient? See Doughty, Smith. Given that J is short-tempered and impatient is his behaviour justified so that he can rely on the defence? Was his response unreasonable see Smith.
b) Dominic - apply Diminished responsibility.
What is meant by abnormality of mind?
'A state of mind so different from that of ordinary human beings that the reasonable would term it abnormal. It covers the mind's activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgement as to whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with rational judgment. The expression 'mental responsibility for his [her] acts' points to a consideration of the extent to which the accused's mind is answerable for his [her] physical acts which must include a consideration of the extent of his [her] ability to exercise will power to control his [her] physical acts.' See Lord Parker CJ in R v Byrne [1960] 2 QB 396.
Proof of abnormality of mind must substantially impair the defendant's acts and omissions -see s.2(1) H.A.
Alternatively consider the defence of provocation as with Jack. Use Smith. Will the jury take account of his particular characteristic, i.e. a 22 year old with a mental age of 9? What of the gravity of the response to the provocation? Bashing Valeri's head on a concrete floor. Does this satisfy the test in Smith that a person is expected to exercise control over his or her emotions?
Note: the fact that Dominic has a mental age of 9 does not absolve him from criminal liability. He will not be able to obtain the benefit of the children under 10 years of age rule. That rule states that it is an irrbutable presumption that a person under 10 lacks the capacity to commit a crime. The age factor relates to biological age, not mental age. The courts may take into account his mental incapacity particularly in the context of sentencing. Dominic will be treated as an adult but using the defence of provocation or diminished responsiblity may be open to him.
Dominic's position does raise a question about the way in whihc the Criminal Justice system (cjs) deals with people who are mentally ill or have a mental or learning difficulty. Should the cjs or the mental health system deal with him? See Draft Criminal Code Bill 1989, Dine & Gobert, pp.224-225. But remember that this is a draft criminal code it is not law thus does not apply to Dominic's case.
Constructive Manslaughter & Gross Negligence Manslaughter
Constructive Manslaughter:
REQUIRES - unlawful and dangerous act.
UNLAWFUL ACT - Criminal in nature (Andrews).
- the actus reus and the mens rea of the unlawful act must be proved (Lamb)
DANGEROUS ACT - people would inevitably recognise [it as an act which] must subject the other person,to at least, some harm resulting therefrom, albeit not serious harm.' (Church).
- harm includes shock that produces physical injury (Dawson).
CAUSATION - Provided the act is aimed at anyone then this will suffice for this crime. The act does not have to be aimed at the intended vicitim - (Attorney General's Reference (No. 3 of 1994).
Gross Negligence Manslaughter:
Requires - duty + breach of duty + causal link between breach of duty and death + gross negligence
(Adomako).
duty = imposed by common law (see omissions), statute.
breach= failure to do something or doing something incorrectly according to the standard expected.
causal link= death results from this failure. No intervening cause.
gross negligence= the standard of performance or non-performance is so bad as to be criminal.
Answers
1. Jack
Constructive Manslaughter
Re child - unlawful act could be battery. Actus reus is the application of unlawful physical force Collins v Wilcock). Application of unlawful force occurs when J throws down a brick that hits the child, it is a trespass upon the child, more than that, a person's body is sacred and no one has the right to meddle with it (Collins v Wilcock). Mens rea is an intention to apply unlawful force, or subjectve recklessness as to whether such force is applied (Savage and Parmenter). J does not intend to hit the child with the brick but he realised there was a serious risk of injury. In Savage and Parmenter the court held, 'It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result. Arguably, the fact that J realised a seroius risk of injury to the child is more than adequate to satisfy this test.
The conduct must also be dangerous, such that all sober and reasonable persons would recognise it as an act that must subject the other person to some harm, albeit not serious harm (Church). On these facts a sober and reasonable person would have recognised that throwing bricks down into a garden where children were playing must subject them to some harm. Arguments against this position may also be put. How?
Gross Negligence Manslaughter
Duty- consider a) duty implied in the contract (Pitwood). On these facts between landlord and tenant (that would include children of tenant) to take reasonable care in carrying out repairs to house. b) creation of dangerous situation (Miller). J creates dangerous situation by carrying out repairs to house when children are in the vicinity. He is aware of the danger, it is the awareness that makes him culpable. c) Possible statutory duty alternatively duty to control.
Breach - consider the standard expected of a reasonable landlord? Does J's conduct fall below standard? More than likely.
Causal link - there is clear causal link between the way J is carrying out repairs to his house and the injury to the child. Could it be argued that there is a novus actus interveniens here? What about the failure of Mary to supervise her children, would that failure break the chain of causation.
Gross negligence - is J's behavious so bad as to be grossly negligent?
2. Dominic
Apply constructive manslaughter here.
Gross negligence is unlikely to work unless a duty can be found from D to V.
Seminar 4
Assaults
Non-Fatal offences against the person
The lowest type of assault is common assault the highest type, Unlawful wounding causing grievous bodily harm, is contained in s.18 Offences Against the Persons Act 1861.
Common assault
AR - the anticipation of immediate, unlawful application of force.
To apprehend is to not suspect, or indicate the awareness of Lamb.
Immediate does not necessarily mean that the victim has to see the accused or that the accused is in the immediate vicinity
Ireland, Burstow, Constanza.MR - intention or subjective recklessness
Savage, Parmenter: the defendant either intends or foresees that his or her act would cause some physical harm to some person, albeit of a minor character. The test for 'foresee' appears to be Cunningham reckless, i.e. 'that the defendant foresee that the particular kind of harm might be done and yet has gone on to take the risk of it. In Savage, Parmenter has the court widened the potential for the criminal liability by not requiring that the defendant foresee the particular kind of harm Cunningham, but that the defendant 'foresees some physical harm'?
Battery
AR - application of unlawful physical force against the victim. As assault is not necessary. Consists of anything from a slight touching to a severe beating. An interference with the person that goes beyond that goes beyond that which is generally acceptable Collins v Wilcock. The touching must be hostile Wilson v Pringle, cf F v West Berkshire HA, and it may be indirect, Martin.
MR - intention or subjective recklessness Savage, Parmenter: the defendant either intends or foresees that his or her act would cause some physical harm to some person, albeit of a minor character. The test for 'foresee' appears to be Cunningham reckless, i.e. 'that the defendant foresee that the particular kind of harm might be done and yet has gone on to take the risk of it. In Savage, Parmenter has the court widened the potential for the criminal liability by not requiring that the defendant foresee the particular kind of harm Cunningham, but that the defendant 'foresees some physical harm'?
AGGRAVATED ASSAULTS
S.47 - AR - assault occasioning actual bodily harm. Actual bodily harm means 'any hurt or injury calculated to interfere with the health or comfort of the prosecutor'Miller. May include psychological harm Constanza but that requires expert testimony Chan-Fook.
MR - See
Savage, Parmenter.
S.20 -
AR - unlawful wounding or unlawful infliction of grievous bodily harm. Wound is a breaking of the skin C (a minor). Grievous bodily harm means really serious harm Smith. Requires infliction of GBH or wounding.MR - intention or must be done maliciously (subjective recklessness, that the defendant foresees some harm)
Mowatt.S.18 - AR - unlawful wounding or causing grievous bodily harm. Wound is a breaking of the skin.
C (a minor). Grievous bodily harm means really serious harm Smith. Requires the causing of GBH.MR - an intent to wound, an intent to do GBH, or an intent to prevent lawful apprehension or detention of any person. Must prove intention as to the relevant consequence. Recklessness is not enough.
Racially motivated assaults - consider the Crime and Disorder Act 1988.
Consider defences of necessity, duress, duress of circumstances and self defence.
ARYAN - discuss the type of assault committed on Delroy. The type of assault committed on the postperson. Is it racially motivated? The type of assault committed on Delroy. Are any defences open to Aryan?
DELROY - discuss the type of assault committed on the postman. Has Delroy any defences? What of necessity? Duress? Self-defence?
Seminar 5
DAN
Is insanity a defence to the theft charge?
Discuss M'Naughten's Case which is legal test of insanity = unsound mind = 'that the accused was labouring under such defect of reason, from disease of the mind.' Not absent-mindedness or stupidity. Total deprivation of the power to reason brought on by a disease of the mind.
Mind = mental faculities of reason, memory and understanding Kemp.
Disease of the mind = not psychomotor epilepsy (temprorary suspension of mental faculities Sullivan.
Diabetes = hypoglycaemia low sugar - external factor, hyperglaycaemia high blood sugar - inherent defect = disease of mind -Hennessy.
*Post Traumatic Stress Disorder - non-insane automatism Re T is most likely ground to here use
Is intoxication a defence to a charge of assault?
Intoxication through alcohol, drugs medication. Mental impairment.
Is this voluntary or involuntary intoxication?
What does the distinction rely on?
Majewski - drug and drinks binge. Blackout. Assaults, criminal damage. Self-induced intoxication. Not a defence to a crime of basic intent (D&G, p.651).
Thus self-induced intoxication may serve as a defence to a crime of specific intent.
Kingston - involuntary intoxication. D unaware that drugs had been given to him, committed criminal acts whilst under the influence. (D&G, p.657-8).
HOMICIDE
Constructive manslaughter or gross negligence manslaughter.
CRIMES INCLUDE: battery, kidnapping, robbery x 2, murder x 2, racially motivated common assault, aggravated assault (ss.18/20 OAPA 1861).
DEFENCE: duress.
OTHER: egg shell skull rule Blaue.
PRINCIPAL: commits substantive offence. Conduct causes prohibited harm directly or via innocent agent. There can be more than one principal Mohan show evidence of common intention. cf. Peers and Parfitt. Where Principals cannot be shown to have acted in concert there is no case to answer Lane, cf. Gianetto either D is principal or accessory.
ACCESSORY: See S.8. Accessories and Abettors Act 1861 (as amended by the Criminal Law Act 1977)
'Whosoever shall aid, abet, counsel, or procure the commission of any indictable offence, whether the same be an offence at common law, or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted and punished as a principal offender.'
Generally the accessory (A) aids the commission of an offence. A can be liable for an offence for which principal not liable Austin.
Prosecution must show:
an offence has been committed see Thornton, Austin (reconcilable?). Distinction bw no crime (Thornton) /crime but P exempted (Austin/Bourne/ Cogan and Leak).
the D aided (assisted), abetted (encouraged), counselled (advised), procured (cause to be committed) -procuring see Att. Gen. Ref (No.1 of 1975).
D has intention or knowledge,i.e., intent to do acts which actor intends will assist commission of crime or that actor knows will have this effect. It is state of mind of accessory that determines criminal liability.
SCOPE OF LIABILITY OF PARTIES
More than mere suspicion. knowledge of type of crime (not particular crime) sufficient Bainbridge.
Do not need knowledge of actual crime intended, irresistible inference will do Maxwell.
Criminal liability for unintended consequence is possible Creamer.
If clear departure from joint enterprise then others not criminally liable Anderson and Morris.
WITHDRAWAL
Must communicate before crime complete see Becerra.
PATRICK
Is P party to first robbery? Mistake of fact but does he need knowledge of particular crime? See Bainbridge. Has he a defence of duress? Is P party to the killing of the bank clerk? Does he have intention or knowledge? Is P party to second robbery? Can he rely on the defence of duress? What of the killing of the clerk? Is P a principal/accessory or innocent agent? Can he rely on the defence of duress Howe? Did P commit a s.18/20 in relation to V? Can he rely on the defence of provocation/ duress?
JOHN & LARRY
Are J& L principals/accessories regarding the kidnapping of P and in relation to the robbery? Is the murder of the bank clerk within the scope of the joint enterprise? Creamer/Anderson & Morrise. What is the relevance of the egg-shell skull? Can J rely on this as a break in the chainof causation? Blaue. Are they jointly liable for the second robbery? Are they principals/accessories to the killing of the wages clerk?
VERA
Has V committed a racially motivated crime see s.28 Crime and Disorder Act 1998?
The organisation of answers to problem questions is crucial if a student is to put across competent and clear answers. This is why the ILAC formula was taught in term 1. However, a number of students have sacrificed organisation, competence and clarity in anwering the second assessment. Here is a chance to put matters right. Below is the ILAC approach in the context of the seminar problem regarding Mr and Mrs Jones and their delightful daughter Amanda
Key is to identify the issues, relevant law, application of law to facts and conclude (which should follow logically). Also remember to use statutory and case law sources when stating the current law.
PARAGRAPH 1
Issue
The issue is whether Mr and Mrs Jones can be charged with conspiracy to corrupt public morals. A further issue is whether Amanda, their daughter can be similarly charged given that she is a minor.
It is an offence to agree to do an act which tends to corrupt public morals or outrage public decency, s.5(3)(a) Criminal Law Act 1977. The essence of the offence of conspiracy is that an agreement is made, it need not be acted upon.By s. 1(1) Criminal Law Act 1977, if a person agrees with any other person that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intention would amount to a criminal offence, but for the existence of facts which render the commission of the offence impossible, that person is guilty of conspiracy. Thus the fact that warehouse and printing press were destroyed thereby rendering publication impossible is not material since what is required is that an agreement, s.1(1) CLA 1977. The essence of consiracy is that an agreement is made, it need never be acted upon Doot, and the agreement must be made with another human being McDonnell.
The question is whether the intention to advertise a club devoted to sado-masochistic sexual activities amounts to 'corruption of public morals' or 'outraging of public decency'? There is no statutory definition of the meaning of these terms so we must turn to available case law. In Knuller, where the appellants published a magazine which ran advertisements inviting readers to meet the advertisers for the purpose of homosexual practices, Lord Simon said that the offence was applicable to advertising and that the offence was to be understood as one where 'reasonable people may venture out in public without risk of outrage to certain minimum standards of decency'. For instance, an exhibit that invites the public to 'penetrate the cover', 'lift in order to see' may count. It is very likely that advertising a club devoted to 'sado-masochistic sexual activities' is likely to prove the kind of activity that the courts would proscribe.
The mens rea of agreement is an intention that the offence is carried out. Mr and Mrs Jones clearly intend to advertise the club, however by s. 2(2)(a) Criminal Law Act 1977 spouses cannot conspire to commit an offence. Where the defendants have agreed with another person to advertise the club, s. 2(2) CLA 1977, the rule will not avail them. Since the Jone's have agreed with Amanda to commit an offence, they may be held responsible. Amanda's capacity for criminal liability will be the same as for adults because the 'doli incapax' rule has been abolished by the Crime and Disorder Act 1998.
PARAGRAPH 2
There are four issues here. One, whether caning amounts to a battery? Two, whether consent will negate an offence of battery? Three, whether the consenting victim of a battery will be held responsible as a party? Four whether, a party to blackmail can rely on the defence of duress?
Battery is the application of unlawful physical force against the person of a victim with intent or subjective recklessness. To satisfy the actus reus of the offence the courts require evidence that the action went beyond the generally acceptable conduct of touching a person Collins, Brown. On the facts it could be argued that caning is generally unacceptable conduct - although what is acceptable is a moot point - in Brown the courts decided that violence against the body of a person in pursuance of sexual pleasure was unlawful. The courts are likely to take a similar view here.
In terms of the mens rea of the offence, the Crown has to establish that the defendants intended the battery or were subjectively reckless Savage and Parmenter. There is no issue regarding the mens rea since the defendants clearly intended to cane Mrs Smith.
One question to be resolved is whether Mrs Smith's consent to the caning amounts to a defence? The answer to this question depends on the extent to which the courts are prepared to interfere with private behaviour. In Wilson, for instance, the courts decided that it was not in the public interest to criminalise the conduct of a husband and wife where the wife consented to her husband's branding of her buttocks. However, in Brown the House of Lords held that consent to sado-masochistic sexual activity between male adults was not the type of private sexual activity that the defendants could consent to. It would seem then that the answer to our problem depends on which side of the fence caning between consenting adults falls on. We could argue that the case is more towards the Wilson scale since it is conduct pursued in the privacy of the matrimonial home, however, in Wilson the accepted conduct was between husband and wife and did not involve third parties.
It could be argued that our case is nearer the Brown scale. The Brown case involved a number of adults who, though acting in private, were not doing so in the context of the matrimonial home with the added point that the proscribed conduct was sado-masochistic. Our case is likely to be consumed under the Brown type, probably because a third party is involved.
An issue yet to be resolved is whether Mrs Smith, as the victim of the offence of battery, would be held responsible as a party to the offence? The nearest case is probably Brown case where there were a number of consenting parties, who were victims. The fact that they were victims did not seem to make a difference to their criminal liability. In that case Mrs Smith will also be held criminally liable.
Can Mrs Jones rely on the defence of duress to the crime of blackmail?
The defence of duress arises because Mrs Jones is a co-principal in blackmail. The question is whether she can argue that she was forced to choose between the worst of two evils. The defendant must have reasonably believed in the facts alleged to amount to duress, the belief must be one expected of a person with reasonable firmness and the belief must amount to fear of death or serious bodily injury to self or others Conway. Although it is not clear whether each of these limbs have to be satisfied to be able to raise the defence B v DPP, we should consider them in relation to the facts.
Arguably, the defendant has been forced to choose between two evils - that of blackmail or that of seeing her 13 year-old daughter being forced onto the streets. Choosing to commit the blackmail can be said to be the lesser of the two evils. There is every indication that Mrs Jones is person of reasonable firmness. It could be argued that Mrs Jones had every reason to believe that the threat would be carried out but it unclear as to the nature of the threat. Does the threat mean that Mr Jones will 'force' Amanda to go into prostitution? In which case, given that she is precocious, Mrs Jones may have every reason to worry about the threat. Serious bodily injury could mean that Amanda may be at risk of being sexually assaulted /raped. Does the threat mean that Mr Jones will simply put Amanda on the streets, i.e. that she will be forced to leave home? Here it is difficult to know what the serious bodily injury would be. Amanda is quite mature and likely to go for help. Again, it could be argued that simply putting a minor onto the streets puts them at risk of serious injury. Mrs Jones may be able to rely on the defence but it is not entirely clear.
PARAGRAPH 3
The issues that have to be dealt with here are the following:
One, the type of assault committed by Mrs Jones, and whether she could rely on the defence of self-defence. Two, whether the homicide is murder or manslaughter and whether Mrs Jones and her co-principal can rely on the defence of duress to a murder charge.
Given the facts Mrs Jones is likely to have committed an aggravated assault. The lowest of these is an assault occasioning actual bodily harm, s.47 OAPA 1861. The actus reus requires a technical assault - that the victim was caused to apprehend 'immediate' violence - this is implied from the facts. Actual bodily harm means 'any harm calculated to interfere with the health or comfort of the' victim Miller. Knocking the victim unconscious is likely to meet this requirement. The mental element is either intention or subjective recklessness Savage and Parmenter. Since Mrs Jones intended to injure Mr Smith the mental element is satisfied. Since Mrs Jones thought that Mr Smith was coming to remonstrate with her she might seek to rely on the defence of self- defence, however, on these facts alone, it is unlikely that she could claim that the force used was 'reasonable in the circumstances'.
In relation to the homicide, the charge is likely to be that of murder. Murder consists of the unlawful killing of a person with malice aforethought (intention). On the facts, both parties to the killing intended it. There were not acting in self defence which would render the killing lawful. The parties cannot rely on the defence of duress. Duress is not a defence to murder Howe.
Above is not a perfect answer. It is an attempt to provide students with a worked example of how the ILAC formula can help to structure answers so that they are logical and reasonably clear. Try it. Have fun!
Good
luck in the exams!