Law – advise

Clive belongs to a terrorist organisation. They have informed the police that they are determined to use tactics that will disrupt the public, if necessary, in order to further their aims. They give a secret password to the police which will verify that any future telephone calls they make are genuine and not a hoax. Clive telephones the police in London to say that he has placed a bomb in Paddington police station and confirms that the call is genuine by giving the password. He adds that the bomb is timed to explode in fifteen minutes.

The operator immediately thinks that Clive has said 'fifty minutes'. The telephone operator immediately communicates this information to his superior and the station is completely cleared without panic within ten minutes. David, a bomb disposal expert, approaches the locker after fifteen minutes in the mistaken belief that the bomb will not explode for at least thirty minutes but is seriously injured when the bomb explodes. David is rushed to hospital in an ambulance where he is given emergency treatment.

After a few days David is still in a critical condition and then develops a secondary infection for which he is given an antibiotic drug. Unfortunately David is highly allergic to the drug and dies the following day. Advise Clive who has been charged with the murder of David (50 marks) The offence of murder is the most serious of criminal offences and attracts a mandatory life sentence upon conviction. Murder is a common law offence, it has been defined through a whole series of decisions that have occurred over the years.

In England there is no Murder Act, s. 1 of the Homicide Act 1957 does not define murder. Lord Chief Justice Coke in the 17th century gave the original definition of murder. Over the centuries judges have modified it. It is defined at common law as 'the unlawful killing of a human being under the Queen's peace with malice aforethought and if death occurs after three years the approval of the Attorney General is required. In many offences, the mens rea required is an 'intention' to cause a particular result. Intention can exist without a desire and motive.

There are situations where a person will have a motive or desire with that intention, you may desire a particular outcome but unless you act on those thoughts then clearly you will have committed a criminal offence. In the case of Steane, this is when a actor is forced to broadcast propaganda. This case identifies that motive is irrelevant. There are two types of intention: Direct and Oblique. Direct intent corresponds with the everyday definition of intention an example of direct intention would be deliberately pointing a gun at someone you want to kill and shooting them.

Oblique intention is less straightforward, it applies where the accused did not desire a particular result but in acting as he or she did realise that it might occur. For example, a mother wishes to frighten her children and so starts a fire in the house. She does not want to kill her children, but she realises that there is a risk that they may die as a result of the fire. The courts are not quite clear that oblique intention can be sufficient for murder: people can intend deaths that they do not necessarily want.

Intention has never been straightforward, it has developed through a series of common law cases. The first case DDP v Smith, which involved a man refusing to get out of his car, this resulted in a police officer dying. This case created an objective test for intention, this proved unpopular because it favours the prosecution. This was soon overruled by s. 8 of the Criminal Justice Act 1967, this overruled the objective test and made it a subjective one, and it also requires that judges must infer intent.

It also underlined the point that all evidence should be looked at when coming up with a judgment The next case Hyam v DPP, involved someone pouring petrol through a letterbox resulting in a child dying even through that was not the desired result. This created further confusion in the future because the judges gave the impression that intention was established if the defendant foresaw the result of her actions as 'highly probable'. The next two cases R v Mohan and R v Belfon, identified that highly probable was not the same as having the intention.

The next case R v Moloney, involved a boy who shot his father. The trial judge had created unnecessary confusion, so Lord Bridge said that judges should avoid confusion and paraphrasing and only assist the jury if they need help, this was set out in the golden rule. The next case R v Hancock and Shankland, created further confusion by Lord Scarmen suggesting that the greater the probability the more likely it is that the consequence was foreseen. This comment has more relevance to recklessness because it involves the idea of risk and probability.