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:
Death of W
H may be liable for murder for killing W. The actus reus of murder is satisfied as H carried out the act of stabbing W once in the chest with a knife which unlawfully killed a human being. It can be said that but for H stabbing W, W would not have died thus showing that H is the factual cause of W’s death. Since there were no other factual causes present, H is the legal cause of W’s death.[i]
Meanwhile, according to Cunningham the mens rea for murder is the intention to kill or cause GBH regardless of whether the defendant foresaw the victim’s death.[1] Based on the facts of this case, it is uncertain if H had the intention to kill W, but it is clear that there was the intention to cause GBH through the use of the kitchen knife. Therefore, the elements of murder have been fulfilled.[ii]
The defence could raise the defence of self-defence, which requires two elements to be fulfilled for complete acquittal, as set out in Section 76 of the CJIA.[2] The first is that the defendant was (or believed that he was) faced with a threat from the victim. Arguably, W did threaten H with the possibility of calling her violent brother, B, to ‘come round immediately’, implying through her words that B would harm H. The second requirement is that H used a level of force that was necessary and proportionate against the threat. The objective test that a jury will use to confirm necessity and proportionality will likely determine that self-defence is not a viable defence. As established in Palmer, H’s response to W’s threat can be seen as entirely disproportionate as W merely used her words to taunt H and was unarmed.[3] Moreover, it is unclear whether H was actually hitting W but if H was the initial provoker, then he cannot rely on self-defence unless W’s response was disproportionate to the initial provocation. Under Rashford, the prosecution could strengthen their case against H as W’s response was not disproportionate to the initial provocation (H hitting her) as W only orally threatened H.[4] Hence, eliminating self-defence as a plausible defence.[iii]
The defence could also raise loss of self-control as written in Section 54(1) of the Coroners and Justice Act 2009 to partially reduce the murder conviction to voluntary manslaughter.[5] Three elements must be fulfilled to use this defence. The first of which is that the killing must have resulted from the defendant’s loss of control. H rushing out of the kitchen with a knife to stab W could be seen as loss of self-control. There is no requirement that the loss of self-control be sudden so the fact that H stormed into the kitchen and later returned does not disqualify this defence. However, under Jewell, loss of self-control can be seen as ’a loss of normal power of reasoning’.[6] In this case, H telling himself to ‘calm down’ depicts the retainment of ‘normal power of reasoning’, suggesting that there is insufficient evidence to show that he did lose control.[7] There must also be a valid qualifying trigger for the loss of self-control. Although it was not true that W was having an affair with her neighbour, sexual infidelity on its own is not a qualifying trigger. However, according to Clinton, it can be argued that it can form part of a trigger.[8][iv] The real trigger, in this case, could be the fear of serious violence from B. However, a jury might not find sufficient evidence for this trigger because B is only ‘nearby’ but not yet physically present in the house[v] . Arguably, as seen in Morhall,[vi] a person of the defendant’s sex and age with a normal degree of tolerance and self-control would also not have acted similarly (the fact that H is an anger management therapist should not be considered as the statute does not have this requirement).[9] To strengthen the prosecution’s case, there may be the disqualifying condition that H acted in revenge against W for no longer having a sexual relationship. However, this may be hard to prove as there was no prior planning of the attack as seen in Ibrams & Gregory.[10] If H was hitting W before he killed her, another disqualifying condition could be that the loss of self-control was self-induced[vii] . According to Dawes, H cannot claim loss of self-control if H incited violence against W which caused her to threaten him, and him later kill her.[11] As a result, if the prosecution can disprove the defence beyond reasonable doubt, H would likely be liable for murder.[viii]
Death of Z
H may be charged with involuntary manslaughter for killing Z because H commits the actus rea of murder but does not fulfil the mens rea element. It can be argued that but for H stabbing W, W would not have ‘staggered into the street’ causing Z to swerve, hit the wall, and die (Pagett).[12] Thus, proving that H is the factual cause of Z’s death. Moreover, under Cheshire, it can be established that although H was not the main cause of Z’s death, he played a substantial enough role to cause it.[13] Hence, displaying that H was also the legal cause of Z’s death.[ix]
W staggering out of the house may be seen as an intervening act to break the chain of causation and acquit H of fault. But according to Roberts, where the intervening act is of the victim (in this case W), the chain of causation will not be broken unless the victim’s action is disproportionate in the circumstance.[14] Based on the facts, W running out of the house after she was stabbed to get away from H and escaping to safety is a foreseeable act. Therefore, W’s action does not break the chain of causation thus fulfilling the actus rea for murder.[x]
However, H had no direct intention to kill or cause GBH towards Z.[xi] By applying the Woolin test, a jury might find that the defendant intended an outcome if they felt that death or GBH was a virtual certainty of the defendant’s acts, and the defendant knew this was the case.[15] However, unlike in Matthews and Alleyne, Z’s death cannot be seen as a virtual certainty as H could not have predicted that Z would be there when W stumbled out of the house, hence emphasising that H could not have realised that his actions would cause Z’s death. Consequently, H does not fulfil the mens rea element for murder so he may be charged with involuntary manslaughter.[xii]
H is not liable for gross negligence manslaughter because there is no duty of care between H and Z. Moreover, he is not liable for reckless manslaughter as, according to Lidar, there was no obvious recklessness shown on H’s part.[16] H could not have been aware that there was an obvious risk to Z.
Therefore, H may be liable for unlawful dangerous act manslaughter. There are three elements that must be fulfilled for H to be convicted. First, all elements of the original unlawful act, in this case, the murder of W, must be proven (Lamb).[17] If H is convicted of W’s murder, then this element is fulfilled. It is important to note that the act does not need to be directed at the victim (in this case Z) as seen in Mitchell.[18] Second, the unlawful act must have been dangerous as defined in Church.[19] Without a doubt, ‘all sober and reasonable people would recognise’ murder as a dangerous act.[20] Thus, the murder of W is seen as an unlawful, dangerous act and fulfils this element. The third element would be that death must have been caused by the unlawful dangerous act. In this case, the stabbing of W (and the later murder of her) caused her to stagger out of the house and Z was killed as a consequence of trying to avoid hitting her. Therefore, this element has also been fulfilled which fulfils all three elements for unlawful dangerous act manslaughter.[xiii]
Based on the facts, self-defence would not be a valid defence because H was not faced with a threat from Z. Moreover, loss of self-control is not a viable defence either as H is not being charged with murder. As a result, H may be liable for unlawful dangerous act manslaughter.
Overall, unless the prosecution is unable to disprove loss of self-control without a reasonable doubt, H will be convicted of the murder of W and involuntary manslaughter (specifically unlawful dangerous act manslaughter) of Z.[xiv]
Feedback:
Grade: 72
References: [1] [1957] 2 QB 396 [2] Criminal Justice and Immigration Act 2008 [3] [1971] AC 814 [4] [2006] Crim LR 547 [5] Coroner and Justice Act 2009 [6] [2014] EWCA Crim 414 [7] Ibid. [8] [2012] EWCA Crim 2 [9] [1995] 3 WLR 330 [10] [1982] 74 Cr App R 154 [11] [2013] WLR (D) 130 [12] [1983] 76 Cr App R 279 [13] [1991] 1 WLR 844 [14] [1991] EWCA Crim 4 [15] [1999] AC 82 [16] [1999] [17] [1967] 2 QB 981 [18] [1983] QB 741 [19] [1965] 2 WLR 1220 [20] 1965] 2 WLR 1220
Marker Comments:
[i]Good
[ii]Good
[iii]Very good
[iv]Very good
[v]Also, s55 of the Acts says “D's fear of serious violence from V against D or another identified person” A threat from a third person may not qualify
[vi]This case precedes the 2009 Act, you should take care in citing earlier cases. In any event the objective test is in s55 of the Act
[vii]Good
[viii]Good
[ix]Very good
[x]You could also consider whether Z’s swerving is a free, voluntary and informed act which breaks the chain of causation
[xi]You could consider transferred malice here
[xii]Good
[xi]Very good
[xiv]Excellent
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