Question:
H works as a therapist counselling people about managing their anger. H has been arguing with his wife, W, for many months about the fact that they no longer have a sexual relationship. One night, at the height of an argument in their living room at home, W threatens to telephone her violent brother, B (who lives nearby), to tell him that he must come round immediately because H is hitting her. W also says that she has been having an affair with the next door neighbour (although this is not in fact true). H storms into the kitchen, saying to himself, ‘I must calm down!’’. He then picks up a kitchen knife, rushes back into the living room and stabs W once in the chest. W staggers out of the house into the street, forcing a motorist (Z) to swerve to avoid her. Z crashes into a wall and is killed. W dies as a result of her stab wound.
Discuss H’s criminal liability for the deaths of W and Z.
Answer:
W
To establish liability, the first step is to establish that H caused W’s death, both factually and legally. In establishing factual causation the ‘but for’ test is applied (White[1]). Here it is clear that but for H stabbing W, W would not have died. Legal causation requires that H’s actions were a ‘substantial and operating’ cause in W’s death (Smith[2]), the answer to which is yes. H stabbing W is the sole cause of death, surpassing the ‘substantial and operating’ threshold.
Having established that H caused W’s death, it is necessary to establish that H fulfils the actus reus of homicide. This requires that the killing was of a human being, done so under the Queen’s peace, and was unlawful. It is indisputable that W was a human being in law, nor is there any question of this offence being committed in wartime. As the threat was not imminent (the call to W’s brother had not yet been placed) the unlawful element cannot be mitigated by a defence of self-defence (A-G’s Ref No. 2 of 1983[3]) and therefore the final element is fulfilled.
Having established that H has fulfilled the actus reus, next the mens rea must be considered. Murder requries an intention to kill or cause ‘serious harm’ (Cunningham[4]). Whether there is direct intent or not is left to a jury’s “good sense”,[5] However, it is difficult to argue that there was anything but the want to cause W at least ‘serious harm’, if not death, as H must have understood that this would be the consequence of stabbing someone in the chest.
This, however, does not leave H without further defences. There are two partial defences to murder, which if successful, lower the conviction from murder to voluntary manslaughter. Diminished capacity is not available to H as there is no evidence to suggest that he is suffering from a ‘disease of the mind’, as is required. However, given the circumstances H may be able to claim a loss of control.
The first requirement to successfully run the partial defence of loss of control, per the Coroners and Justice Act 2009 s 54 (1), is that there must be a loss of control. Jewell[6] established that a loss of control is where there is a "loss of the ability to act in accordance with considered judgement or a loss of normal powers of reasoning." H’s going into the kitchen and telling himself he “must calm down” shows he did not lose control. Whilst the loss of control doesn’t need to be sudden (s 54 (2)) H’s insight that he was acting unreasonably directly prior to the stabbing indicates that he retains an ability to make a “considered judgement” and retains “powers of reasoning”. Additionally, H’s single stab to W’s chest implies some self-restraint (and therefore “considered judgement”) a jury would likely find to be inconsistent with a loss of control. Given these factors, it is likely H’s partial defence would fail and H would be liable for murder which carries a mandatory life sentence.
Z
H cannot be charged with murder in this case. H had no direct intent to harm Z. It is unreasonable to say that H would have recognised Z’s car accident and the death it caused as a ‘virtual certainty’ of his actions, so the minimum requirement of oblique intent also cannot be found. The doctrine of transferred malice requires, per Mustill, LJ, that what was intended to happen to the “first person” did not happen, allowing the intent against the first person to be transferred to the actus reus against the “second person”.[7] As in this case H was successful in stabbing W, there cannot be transferred malice.
As it is impossible to pursue murder in this case, only involuntary manslaughter offences remain (as voluntary manslaughter offences are partial defences to a murder charge). There are three types of involuntary manslaughter: Unlawful Act Manslaughter (UAM), Gross Negligence Manslaughter (GN), and Reckless Manslaughter. Reckless manslaughter’s existence is controversial and is rarely used and so will not be considered unless liability cannot be found under either UAM or GN.
Whilst it may be argued that UAM applies as the chain of causation is begun by H’s unlawful, dangerous act of stabbing W, there is also an argument to be made that liability here for UAM would contravene the concurrence principle. The mens rea of UAM is taken from the base offence, and the actus reus is the same as for homicide. Here the base offence would be W’s murder, meaning the mens rea for this murder occurs when he stabs her. The actus reus only occurs later, when Z dies from the car crash and mens rea is no longer present. Whilst Thabo Meli[8] allowed for a series of acts to be considered one continuing act that required mens rea to only be present at one point, Thabo Meli relied on the fact the series of events were part of one plan. Z’s death was not part of a larger plan. Therefore, there is no correspondence and a UAM charge would be inappropriate.
If UAM does not fit, GN may be a more appropriate charge. It appears easier to convince a jury that H has fault in regard to Z’s death because he failed to take proper actions after stabbing W rather than H’s fault here being W’s stabbing. GN requires the following elements be proven: 1) there be a duty of care; 2) that duty of care be breached; 3) that breach causes death; 4) it is reasonably foreseeable that a breach creates an obvious risk of death; 5) that the breach be so bad as to be ‘gross’[9]. These will be discussed in turn.
As per Evans,[10] H's actions give rise to a duty of care, and Z crashes as a direct result of his breach of that duty of care. In this scenario, H stabbing W and allowing her to wander into the road creates a dangerous situation. The test for whether H created a dangerous situation is objective (Miller[11]), and any reasonable person would understand that allowing a seriously wounded person to wander into the road creates danger for both the wounded person and other drivers. His failure to stop W wandering into the road and failure to call for help, then shows he breaches his duty of care both to W and to anyone else impacted by the dangerous situation he created, such as Z.
To establish the third element, causation, the ‘but for’ test should be applied. But for H’s failure to assist W, she would not have wandered into the road. But for her wandering into the road Z would not have crashed, and but for Z crashing they would not have died. Per Smith[12] H’s omissions must also be a “substantial and operating cause”. His failure to act is a substantial proportion of the reason that W ends up in the road, and therefore a substantial cause of why Z had to swerve. Here, Z is a victim of the dangerous situation H created. As per Roberts[13] only breaks the chain of causation where the victim’s own actions were “so daft as to be unforeseeable”. It is hardly unforeseeable that a car would swerve to avoid hitting a woman on the road. Therefore, Z swerving their car is not an intervening act. Likewise, W wandering into the road is not unforeseeable as she is escaping her attacker. However, her want to get away from H does not negate his duty of care, meaning this is also not an intervening act. Consequently, H’s omissions remain the operating cause of death and both legal and factual causation are established.
The next requirement is that the breach resulting in an obvious risk of death is reasonably foreseeable (Singh[14]). Here, there must be 1) foreseeability the breach would cause a car crash and 2) an obvious risk that a car crash could cause death. It is reasonable that H should foresee that cars (Z) will swerve to avoid pedestrians in the road (W) and that because of that swerving the car may crash. A pedestrian being in the middle of the road is directly caused by H’s failure to take steps to avert harm after he stabbed W. On the second point, it is reasonable to conclude that it is obvious that a car crash could cause death.
The final requirement for GN is that the breach of the duty of care be so bad that it is ‘gross’. This is ultimately a question for the jury (Adomako[15]). However, Adomako[16] lays out that a person’s conduct is ‘gross’ when it ‘fall[s] so far below that which is expected’. In this case, H stabbed W then abandoned her to walk into the road with no regards to the safety of W or others on the road. He created an immensely dangerous situation in causing serious injury and took no steps, failing to even accompany W to the roadside, to rectify the situation he created. On these facts, it is likely that a jury will find H’s negligence to be gross.
In regards to Z it is likely H would be criminally liable for GN and would face a sentence of up to life.
Grade: 68
References: [1] [1910] 2 KB 124 [2] [1959] 2 QB 35 [3] [1984] QB 456 [4] [1982] AC 566 [5] Moloney [1985] AC 905 [6] [2014] EWCA Crim 414 [7] Attorney General's Reference No 3 of 1994 [1997] UKHL 31 [8] [1954] 1 WLR 228 [9] [1994] 3 WLR 288 [10] [2009] 2 Cr App R 10 [11] [1983] 2 AC 161 [12] See 2 [13] [1971] EWCA Crim 4 [14] (1999) [15] See 9 [16] See 9
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