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:
Did H Cause W’s Death?
H is the factual cause of W's death because "But for" H's act of [stabbing] W once in the chest", W's death "as a result of her stab wound" would not have occurred (R v White 1910[1].)
H is also the legal cause of W's death because his act of stabbing her in the critical area of "the chest" with a powerful "kitchen knife" was a significant (R v Wallace 2018[2]) and more than minimal cause (R v Hughes 2013[3].)[RP1]
Did H have the “mens rea” to Kill or Cause Grievous Bodily Harm to W?
To establish homicide, H must have intended to kill W (R v Mohan 1976 [4]), which brings the question of whether H "[acted] to bring about a proscribed result, whether or not [he] desire[d] the consequences of the act [5]". If H foresaw death as virtually certain, the jury are entitled to find intention (R v Nedrick 1896 [6].) Through applying Duff's test of failure, it is clear that stabbing W "in the chest" cannot have any other consequence other than causing fatal harm, so that H would treat his action as a failure if he did not achieve the result. Especially since H is likely to be motivated to act by his anger during the argument with his wife, this suggests that the aim of his act was to kill W (Homicide Act 1957[7].) [RP2]
H did only stab W "once" and it is unclear how powerful the knife used is, making it less certain that she would die rather than merely be injured, [RP3] yet it is not possible to infer "oblique intention" here (R v Woollin 1999 [8].) The jury would still be entitled to find intention as, at the very least, grievous bodily harm is a "virtual certainty" of stabbing somebody in the chest [RP4], and H's qualifications as a "therapist" suggest that he is a reasonable man who "appreciated that such was the case" (Lord Lane in R v Woollin 1999 [9]). Thus, it is likely that the jury would find that H had the relevant mens rea to make him liable for homicide.
Is H Liable for W’s Death?
To be able to rely on "self-defence", H must have used a force "in order to meet an actual or perceived force or threat of force" (R v Riddell 2017[10]), depending on the situation as the defendant believed it to be at the time (R v Martin 1881 [11]), which is seen where "W threatens to telephone her violent brother" and heightened by the fact that he "lives nearby". The exact proximity of B to H is unknown, leaving it uncertain as to whether he could have retreated or not (CIJA 2008 s76(6A) [12]), and thus it is unclear with how much necessity H acted.
Also, the amount of force used by H in self-defence must have been reasonable (Criminal Justice and Immigration Act 2008 [13]). It is unclear how much power the "violent" B holds over H and which weapons he has to his disposal. Yet [RP5] this was established in Beckford v R [14] where the defendant thought that the firearm was already at his location and that they had already fired, as opposed to the situation in this case where B has not yet arrived, and W is not posing any direct threat to H [RP6]. Although it could be argued that the barrier between H and B is similar to the window in Smith V Superintendent Working Police Station 1983 [15], in both situations, the defendants could have certainly phoned the police to protect themselves before becoming violent. [RP7]
To rely on the defence of "loss of self-control", the defendant must prove that they lost "the ability to act in accordance with considered judgement" or lost the "normal power of reasoning (Coroners and Justice Act 2009 [16].) Although it is likely that H may have lost the ability to think clearly at the "height of the argument" with W, he expressly states that "[he] must calm down", showing that he is able to think rationally and is aware that his subsequent actions are wrong. H took the time to go "into the kitchen", "[pick] up a kitchen knife" and go back "into the living room", although it is unclear how easy the knife was to access - for example, if it had a cover on it or H had to reach high on top of a shelf. This is similar to the way that the defendant in R v Thornton (Sara Elizabeth) (No.2) 1996 [17] took the time to sharpen a knife before stabbing her husband. [RP8] While the defendant in Thornton suffered from a personality disorder, H's act can be seen as revenge (R v Jewell 2014 [18]), which does not constitute for the "loss of self-control" defence (R v Duffy 1949[19] and R v Dawes 2013[20].) Furthermore, the couple's lacking "sexual relationship" and W's bluff surrounding her "affair" cannot be relied on by H as "qualifying trigger[s]" [RP9] (Coroners and Justice Act 2009[21]) because triggers related to infidelity were ruled as exceptions (Coroners and Justice Act 2009[22]). [RP10] Thus, H is unable to rely on both "self-defence" and "loss of self-control". As H is both the factual and legal cause for W's death, and the jury would be likely to find intention for his act (Homicide Act 1957 [23]), H is liable for homicide. [RP11]
Is H Liable for Z’s Death?
"But for" H stabbing W, W would not have "[staggered] out of the house into the street" and Z would not have "[crashed] into a wall", making H the factual cause for Z's death. W can be seen as acting as a third-party intervention as she causes Z "to swerve to avoid her", thus seemingly breaking the chain of causation (Environment Agency v Empress Car Co 1999[24].) [RP12] Yet in Environment Agency v Empress Car Co, the judges reasoned that the intervention must be an abnormal or extraordinary event and running outside to get help in cases of domestic violence is neither abnormal nor extraordinary, although perhaps being able to walk after being stabbed in the chest is rather extraordinary. Additionally, third party interventions can only break the chain of causation if they are free, voluntary, and informed acts (R v Kennedy (No. 2) 2007 [25]), and it is not possible that W's action of staggering outside was free or voluntary as she was acting under necessity while fighting for her life and escaping the source of her danger.
As H was unaware of Z's presence, it cannot be said that he has the relevant mens rea [RP13] for Z's death and therefore he cannot be liable for homicide in Z's case. However, H's unlawful and dangerous act of stabbing W was ongoing as her "stab wound" was leading to "her death", making H liable of unlawful act manslaughter (R v Franklin 1883[26].) [RP14]
In conclusion, for these reasons, H shall be charged of homicide for the death of W, and of unlawful act manslaughter for the death of Z.
Feedback:
Grade: 65
Feedback:
Good job! There are a few errors, but you’ve attempted a systematic analysis of the central legal issues, although a detailed analysis of certain relevant aspects was missing (see the comments). The argument is reasoned and draws on a good range of relevant literature. See the comments for questions you may want to consider.
To achieve a higher mark, I would recommend analysing and distinguishing cases in more detail. I would also recommend showing more evidence of independent thought and engaging in academic debates about difficult questions and issues. A good exercise might also be a more balanced analysis of the arguments of both the prosecution and the defence. Adding more references to legal authorities is also recommended.
References: [1] R v White (1910) 2 K.B. 124 [2] R v Wallace (2018) EWCA Crim 2431 [3] R v Hughes (2013) UKSC 56 [4] R v Mohan (1976) QB 1 [5] R v Mohan (1976) QB 1 [6] R v Nedrick (1896) 1 WLR 1025 [7] Homicide Act 1957, s1 [8] R v Woollin (1999) AC 82 [9] R v Woollin (1999) AC 82 [10] R v Riddell (2017) EWCA Crim 413 [11] R v Martin (1881) 8 QBD 54 [12] Criminal Justice and Immigration Act 2008, s76 (6A) [13] Criminal Justice and Immigration Act 2007, s76 (3) [14] Beckford v R (1988) AC 130 [15] Smith v Superintendent Working Police Station (1983) Crim LR 323 [16] Coroners and Justice Act 2009, s54 [17] R v Thornton (Sara Elizabeth) (No.2) (1996) 1 WLR 1174 [18] R v Jewell (2014) EWCA Crim 414 [19] R v Duffy (1949) 1 All ER 932 [20] R v Dawes (2013) WLR 130 [21] Coroners and Justice Act 2009, s55(3) [22] Coroners and Justice Act 2009, s55 [23] Homicide Act 1957, s3 [24] Environment Agency v Empress Car Co (1999) 2 WLR 350 [25] R v Kennedy (2007) UKHL 38 [26] R v Franklin (1883) 15 Cox CC 163
Markers Comments:
[RP1]Good, concise analysis.
[RP2]Good. Does this mean H had direct intention?
[RP3]If it was only serious harm, would that still fulfil the MR of murder?
[RP4]If no other intention can be inferred from the action, and there is no indication that H has another aim or purpose, is it necessary to go to Woollin?
[RP5]The attack is directed towards W. Does that change this analysis?
[RP6]Good
[RP7]Not sure I understand this comparison, but you could emphasise the point about why the force was unreasonable
[RP8]Why is it similar?
[RP9]Could he rely on fear of serious violence? Why or why not? If there is a qualifying trigger, might a person of his age, sex, and circumstances, with normal tolerance and self-restraint, have acted in the same way?
[RP10]Are there any similarities between this case and Clinton, where infidelity was taken as part of the context of the qualifying triggers?
[RP11]This has been mentioned before, so it’s not necessary to reiterate here. A conclusion of the AR+MR-Defence might work better here.
[RP12]Is this case applicable? Remember that it is limited to offences of strict liability.
[RP13]Could there be an argument of transferred mens rea?
[RP14]A more detailed analysis of the elements of this offence would be good.
Comments