The problem question is focused on the criminal liability of Mo. Firstly it is necessary to mention that there were two killings which took place in the facts, the victims being Billy and John. Both deaths are linked to the conduct of Mo, and it would be reasonable for a layman to refer to these unlawful killings as murders. However, from a legal perspective the term murder is only applicable, where the necessary Actus reus and Malice aforethought (mens rea) have been identified from the actions of the defendant.
In regard to the actus reus, there would be a significant claim that Mo's actions were the substantial cause for both of these killings. Therefore, it would be likely that an accusation of murder would be unavoidable in such a circumstance, the courts would accordingly consider three main issues which are regarded as essential for the existence of any crime. Namely whether there was: an actus reus, a mens rea and the possibility of any defences. As both accounts raise different legal issues it would be logical to address Mo's liability to the deceased one at a time.
The scenario may be dissected into two main sections. The first being based on: Mo and her husband's relationship and how this lead to the death of Billy. The second part enlists the chain of events in which Billy's drinking friend John was also subsequently killed. Once these have been assessed in the light of relevant law, the alternative scenario of no killings to have occurred, merely serious injuries suffered will also be considered. To begin with, let us turn to the first section of facts leading to the death of the first victim Billy.
As I have discussed earlier it is likely that a charge of murder would be bought forward against Mo. The next stage would be to identify the actus reus. In relation to the murder the actus reus would be the undertaking of an unlawfull killing. This was initially clarified by: Unlawfully killing a reasonable person who is in being and under the King's Peace, the death following within a year and a day. '1 (Coke, 3 Inst 47). In light of the facts this would be the result of Mo dousing Billy's bed with petrol while he slept and setting fire to it.
In addition to this, the courts also need to establish causation. In particular circumstances the defence may argue that the actions of the defendant may have been criminal but was not the cause of the unlawful killing. To address this issue the courts developed the 'but for test'2 (also used in tort). This works on the principle that 'but for the defendants action, the victim would not have suffered a fatality'. In application to the facts, 'but for Mo setting fire to Billy's bed, Billy would have survived'.
The satisfaction of this test usually establishes causation, meaning the second issue is that of mens rea. The existence of mens rea is in essence to any crime, and it is of special significance to the charge of unlawful homicide. The conviction of murder in particular relies heavily on the concept of 'malice aforethought'3, bearing in mind it has been deemed one of the most morally culpable of crimes. Murder cannot be established without the inclusion of 'malice aforethought', expressed by section of the Homicide Act.
This section also refers to the two types of malice, which can be identified expressly or impliedly. Express malice can be seen by a clear intention to kill, although this may be difficult to prove. To identify this; courts will consider issues such as: whether the killing was premeditated, whether a weapon was taken to the scene and may advise the jury accordingly. Implied malice can inferred from an intention to cause grievous bodily harm, and this will also suffice for a charge of murder.
The case of Nedrick5 exhibits how the jury is directed to infer intention from the evidence of the case. LJ Lane stated: 'the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case. '6 The idea of a 'virtual certainty' was reformulated in the case of Woolin7.
Lord Steyn interpretation of Nedrick can be viewed as less imposing on the jury: ' … the decision of the House of Lords in Woollin may be taken to leave some leeway in the application of the test. In that case it was held that, where the jury concludes D foresaw that death or grievous bodily harm was virtually certain to ensue, it is 'entitled to find' that D has the necessary intention for murder'. 8 Applying this test to the actions of Mo, there appears to be a reasonable implication of premeditation; this in turn may be interpreted as intention to kill.
This is due to two main features: firstly the fact that Mo deliberately soaked petrol into Billy's bed while he slept, it may be a virtual certainty that death or grievous bodily harm would occur. Secondly the facts disclose that Mo bought the children out of the house prior to her act, suggesting that she had planned and premeditated her act. Furthermore this may indicate to the jury that she was aware that potential harm was foreseeable, and moved the children out of the house as a precaution.
This may also infer that the defendant appreciated the virtual certainty of grievous bodily harm or death and accordingly took the precaution for the protection her children. Thus far the issues of actus reus and mens rea have been discussed, yet a crime may not operate on these elements alone. There also must be an absence of defence. In evaluation of the defences available to Mo, three defences in particular may arise: provocation, diminished responsibility and intoxication. To begin with, it is important to outline the defence of provocation.
Provocation is a defence exclusive to the charge of murder, and operates as a partial defence, which if pleaded successfully reduces the charge to voluntary manslaughter. Section 3 of the Homicide act defines provocation by stating 'Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or things said or by both together) to lose his self control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury. '9
The description of provocation of being 'things done or things said or both' can be seen to have expanded by the case of R v Doughty10. The appeal case established that even the persistent crying of a baby may amount to provocation, provided the 'reasonable man' test can be satisfied. In defence of Mo, one could raise the argument that the frequent beatings and taunts committed by Billy amounted to a form of provocation. A second part of criteria necessary for relying on provocation is the concept of the reasonable man test, redefined in the case of Camplin11.
Prior to Camplin the jury were not to consider the characteristics of the accused, this can be seen in Bedder12, however the current the case law has now made allowances for the individual. As LJ Diplock stated: '… the reasonable man referred to in the question is a person having the power of self control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused's characteristics as they think would affect the gravity of the provocation to him… '13
The decision was also reaffirmed in the case of Morhall, however the judge is control of what may and may not be considered as a relevant charaxteristic. Therefore it remains unlikely that an individual The final requirement of provocation is that the actor suffered from a sudden and temporary loss of control, which subsequently resulted in the unlawful killing. The effect of any delays or cooling off periods may appear to contradict the 'sudden loss' of control, which would ultimately negate the claim of provocation.
In a case containing very similar facts to Mo and Billy's circumstance, the judge rejected the wife's claim to provocation and gave the following judgement. 'Indeed, circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that a person has had time to think, to reflect, and that would negate a sudden temporary loss of self-control which is of the essence of provocation.