Crown Prosecution Service Analysis Paper

In English criminal law homicide is a generic term covering a number of offences. All homicides are concerned with the unlawful killing of a human being; what distinguishes them is either the state of mind of the defendant who caused the death, or the defences available. The most serious offence which may have realistically occurred in this case is murder. Murder, a common law offence, is the most serious of all offences and is punishable by a mandatory life sentence.

The Actus Reus for murder is 'the unlawful killing of another human being', that is the death of a victim that is a 'life in being', Re Poulton1 where it was established that a 'life in being' meant that a child must be expelled from its mother's body, a foetus does not count as a life. The Mens Rea for murder expressed in Coke's2 classic definition refers to the defendant having 'malice aforethought' or more simply, the intention to kill or do grievous bodily harm.

Re R v Vickers3, where the latter (GBH) was accepted as sufficient Mens Rea as if the defendant was willing to inflict grievous bodily harm, then how was he to know that the victim wouldn't die? This was later confirmed in the case of Cunningham4. With regards to 'intention' it was verified in the case of Woolin5 that if the prosecution can show the defendant foresaw death as a 'certain consequence' then this can amount to intention, therefore satisfying the Mens Rea of the offence.

With respect to causation, it must be proven that the defendant 'caused' the victims' death. For this two matters must be considered. Did the defendant 'in fact' cause the victims' death? If so, can he be held to have caused it in law? As regards causation in fact, this can be resolved by the application of the "but for" test. Re R v White6, where one must ask, 'but for' the defendants act would the actual result have occurred and if not, causation in fact must be disproved and the Actus Reus for murder can not be satisfied.

Causation in law is a mixed question of fact and law. Simply because a chain of causation in fact can be established it should not be assumed that legal liability will follow. This rule of causation exists to prevent a defendant being convicted where his acts are too remote from the death, or where his acts are only a minimal cause of death. When looking at the facts of this case it is evident that there has been the unlawful killing of at least one human being.

It is quite possible that Fred could be charged with the murder Lenny. Considering whether Fred could be liable for this causes some problems. For a murder charge to be brought against Fred it must be shown that he actually caused Lenny's death, there is no doubt that Fred is guilty of assault and battery by dangling Lenny out the window and threatening him. By doing this Fred has in fact committed a statutory offence under the Criminal Justice Act 1888 section 39 "Common Assault and Battery".

However, there is a further supervening act that could be said to break the chain of causation and therefore move liability from Fred, this supervening act is one that concerns negligent medical treatment. In English criminal law with respect to medical treatment, the question that must be asked is; in what circumstances can medical treatment received by a victim, following an attack by a defendant relieve him of liability if the victim subsequently dies?

The law takes a logical approach to this and contends that whilst it is reasonably foreseeable that the victim of an attack will require medical attention, the chain of causation will only be broken if that medical attention is unforeseeably poor or incompetent. But then we must ask 'how bad must medical treatment be to break the chain of causation? ' In the case of Smith7, the court held that if at the time of death, the original wound is still an operating and substantial cause of death then it can be said to be a result of that wound.

Only if the second cause is so overwhelming as to make the original wound part of the history can it be said that death does not flow from the original wound. This decision was reinforced in the case of Mellor8. The facts of this case give rise to some uncertainty as to what was the operative cause of death. It is quite possible that Mike's negligence by operating on the wrong leg may have broken the chain of causation and he could therefore face a charge of gross negligent manslaughter (I will expand upon Mike's liability further in this essay).

If this is ascertained then it could not be said that Fred caused the death of Lenny, meaning he could not be charged with murder. However, if we applied the 'but for' test, then 'but for' Fred's assault and battery on Lenny, then Lenny would not have been in the hospital where he received the negligent medical treatment. I believe that a charge of murder should not be brought for Fred as even if it could be proved that Fred in fact caused the death of Lenny, he does not have the necessary Mens Rea for that murder.

Fred did not intend to kill or inflict grievous bodily harm. He merely wanted to 'encourage' Lenny to pay money owed. If we apply the foresight idea from Wollin5, then Fred could not have foreseen death or GBH as a virtual certainty as it was in truth the unforeseen shock of Lenny's daughter coming in that caused Fred to drop Lenny. Thus, I think Fred can not be charged with the murder of Lenny, as even if it can be proven without reasonable doubt that Fred caused the death as Lenny, Fred does not have the Mens Rea for the murder offence.

Nevertheless, a charge of involuntary manslaughter is likely to suffice. Involuntary manslaughter involves the defendant causing the death of the victim. But unlike for murder, the defendant will not have had any intention to kill or do GBH; indeed the defendant probably wouldn't have contemplated the death of the victim at all. The Actus Reus for this offence is that the defendant must have committed an unlawful and dangerous act. This act must involve a breach of criminal law, Re R v Franklin9. The defendant must also have the Mens Rea for this act.

When looking at the fact pattern of the case it can be said that Fred commits the unlawful act toward Lenny (assault and battery) and has the necessary Mens Rea for this act; intention to do it. So if it can be established by a jury that Fred caused the death of Lenny taking into account the negligence of Mike, then Lenny will satisfy all the criteria for a conviction of unlawful act manslaughter. With regard to Seb, if we apply the "but for" test mentioned earlier then, 'but for' Fred inflicting actual bodily harm on Ann, Seb would not have been born prematurely and would not have therefore died.

Following the law stated in Attorney Generals Ref No 3 of 199410 Fred can't be charged with murder as the foetus in the womb does not count as a 'life in being'. If following the judgement in this case then Fred should be charged with Manslaughter. Unlawful act manslaughter in this case would be relevant as Fred commits the unlawful act by inflicting ABH on Ann and has the Mens Rea for this offence, which leads to the death of Seb. Gross negligent manslaughter is where death has occurred either by an omission or by the defendants act which was performed in a grossly negligent way.

It implements the idea that the defendant owes a duty of care to the victim, there has been a breach of that duty and that that breach was so severe that it can be regarded as criminally culpable. Re Adamako11, where it was stated that a jury must decide which conduct is so negligent that it is punishable in criminal law instead of tort. The cases of R v Prentice12and R v Holloway13 brought back the idea of convicting people of gross negligent manslaughter after it was phased out of the common law in favour of Reckless manslaughter Re Caldwell14.

It is likely to be difficult for the prosecution to convict Mike of gross negligent manslaughter. As even though it can be proven that a duty of care existed (doctor, patient relationship), that there was a gross breach of that duty (Operating on the wrong leg). It is difficult to show that this gross breach actually caused Lenny's death. Re Cheshire15 – Where doctors had been grossly negligent but it was ruled that this negligence had not broken the chain of causation. The court ruled that only if the act is so independent of the original wound can it break the chain.

I do not feel that this negligence on behalf of Mike is severe enough to take liability away from Fred, although the facts of the case don't actually state what the exact cause of death was. This is why I feel it would be hard to move liability to Mike. So I would advice the CPS to take no action against Mike. Although Lenny's estate may be able to recover damages in tort for any extra pain suffered by Lenny due to this negligence before he died. The last offence to consider is the actual bodily harm inflicted on Ann by Fred.

This crime falls under the statutory offence 'Assault occasioning bodily harm'. It is covered under section 47 of the Offences against the Person Act 1861. The Mens Rea for this offence is 'intention' or 'recklessness'. With the Actus Reus being assault or battery with actual bodily harm. The type of harm was decided in R v Donovan16 as "any harm although not permanent is more than transient and trifling". Fred, by his actions towards Ann has satisfied all the criteria, and therefore I would advice the CPS to bring a charge of Assault Occasioning Bodily Harm against Fred for his actions against Ann.

Thus, after analysing the fact pattern of this case and researching the scope of the law with regard to such issues, I would advise the CPS to bring about 2 charges of unlawful act manslaughter against Fred for the death of Lenny and Seb, and one count of 'assault occasioning actual bodily harm' for the battery toward Ann. However, I would advice them to take no action against Mike as it could prove hard to establish that his conduct was so severe that it would have broken the chain of causation and caused Lenny's death.

Moreover, with the burden of proof lying with the CPS I think it is more justifiable to take action solely against Fred. 1. Poulton (1832) 5 Car. & p. 329 2. Coke 3 Inst 47 3. R v Vickers [1957] 2 QB 664 4. Cunningham [1982] A. C. 566 5. Wollin [1998] 3 WLR 382 6. R v White [1910] 2 K. B. 124 7. Smith [1959] 2 Q. B. 35 8. Mellor [1996] 2 Cr. App. R. 245 9. R v Franklin (1883) 15 Cox CC 163 10. AG's ref. (No 3 of 1994) 11. Adamako [1995] 1 AC 171 12/13. Prentice [1993] 4 All ER 935(CA) 14. Caldwell [1982] A. C 341 15. Cheshire [1991] 3 All E. R 670 16. R v Donovan [1934] 2 KB 498