Factual Causation Public Law

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To decide whether an offence has been committed, first discuss the issue of causation. If Diana has caused Edmund's death, we examine what offences she may have committed, and consider whether Diana may have any defences, including the partial defences to murder of provocation and diminished responsibility. In cases of murder and manslaughter, we must discuss whether the Defendant's action caused the victim's death first. Unless we can show this, there can be no offence. Courts will first look for factual causation, and will apply the test in R v White [1910], which asks that "but for" the defendant's actions would the result have occurred. In that case, the defendant put poison in the victim's drink but she died of a heart attack before drinking it, therefore there was no factual causation and consequently no murder. Here, Diana kills Edmund by striking him with a lamp. "But for" this happening, he would have lived. So there is factual causation. Next, the court must be satisfied that the defendant's act was significant and operative at the time of death. This is known as legal causation. In R v Cheshire [1991] it was held that "significant" means more than minimal and "operative" means there was no intervening act to break the chain of causation. Edmund's drunkenness does not play a part in his death, so there are no other causes to consider and nothing to break the chain of causation. Therefore, there is legal causation. The first offence to consider is of murder. The actus reus of murder is unlawful killing of a person under the Queen's peace. This means no general defences such as self-defence, apply. Here, Diana has killed Edmund. Diana may raise the general defence of self-defence. Edmund is violent, so she could argue she acted to prevent him assaulting her again. To prove this, she must have an honest belief in the need to use force [1] even if that is unreasonably held. On the facts as she believed them to be, a reasonable person must also agree that force is necessary [2] . Diana could have simply left the home, as Edmund was asleep. Therefore, this is not satisfied. Only reasonable force may be used or the defence will fail [3] . Edmund was not assaulting her at the time, so she is unlikely to be able to show this. A future threat is not sufficient to raise the defence and the harm feared must be immediate [4] . It is likely this defence would fail. The mens rea for murder was laid out in R v Cunningham [1982] as the intention to kill or cause Grievous Bodily Harm, which was defined in DPP v Smith [1960] as "really serious bodily harm." Moreover, in R v Maloney [1985] the court said that "intention" was to be given its ordinary meaning. It is not clear that Diana intended to kill Edmund. She uses a table lamp, which is not always a deadly weapon, and her statement when arrested was "I just couldn't bear it anymore," is not strictly saying she wanted to kill him. In Hyam V DPP [1975], the court said that a Jury can infer evidence of the defendant's intention from their foresight of the consequences. In R v Nedrick [1986], the Court of Appeal held that in the absence of a direct intent to commit murder, a jury should be directed that they were not entitled to infer that intention unless death or GBH was a virtual certainty and that the defendant realized that such was the case. Applying the current test as in R v Woollin [1999], if causing Edmund's death or inflicting GBH to him was a virtual certainty and Diana realized this, the jury must find that she had the intent to commit murder. However, section 8 of the Criminal Law Act 1967 says that a jury should not just infer the defendant's foresight of this from the probability of something happening, but that they should look at all the evidence. Hitting someone with a table lamp may be expected to cause some level of injury, but not necessarily death or serious bodily harm. The fact of his death, suggests a lot of force was used, and may be enough to suggest she satisfied the Woollin test. Even if the defendant has the actus reus and mens rea for murder, they may be able to argue a special defence of either provocation or diminished responsibility. Section 3 of the Homicide Act 1957 states that the defendant must be provoked by something said or done to lose their self-control, and a reasonable person would have done the same thing. In R v Accott [1997], it was held that the provocation must be something said or done by a person. Here Edmund's words and actions provoke Diana, so this is fulfilled. Loss of self-control does not have to be complete [5] , but it must be sudden and temporary [6] . Mere revenge will not satisfy this. However here there is a gap between Edmund's abuse of Diana, his last words, and her killing him. In R v Ahluwahlia [1993], the defendant pleaded provocation, but there was no sudden and temporary loss. The longer the delay between the provocation and the killing, the harder it will be to establish a defence. Diana's ability to satisfy this requirement may well depends on how long afterward she killed him. The second question is "would a reasonable person do the same thing?" In DPP v Camplin [1978], the House of Lords said that a "Reasonable Person" should have same age and sex as the defendant and any other characteristics that could affect the gravity of the provocation. Diana could use her previous history of abuse to show this was the "last straw," caused her to lose self-control. In R v Smith [2000], the House of Lords also said that a woman's self-control may be affected by abuse. In R v Thornton [1992], the judge rejected that a jury should consider past events, saying the relevant issues was whether they had lost control at that moment. The retrial in R v Thornton (No.2) [1996] did not address this issue and focused instead on new medical evidence, which led to the Defendant being convicted of manslaughter on a finding of diminished responsibility. These contradictory authorities appear to have been resolved in AG for Jersey v Holley [2005], where the Privy Council rejected the subjective approach of the House of Lords cases and said the level of self-control expected was one of a reasonable man. They also said that if the defendant had a mental condition impairing self-control he could plead Diminished Responsibility instead. In R v James [2006], the Court of Appeal applied the Privy Council's decision rather than follow the strict rules of precedent. This suggests that the Privy Council's decision is now current law and in future, the Court of Appeal is likely to follow the Privy Council. This is bad for Diana, because it does not allow her to show how her previous abuse has affected her level of self-control. However, she may be able to plead Diminished Responsibility. Under section 2(1) of the Homicide Act 1957, a person will not be convicted of murder, but will be convicted of manslaughter instead, if he suffers from an "abnormality of mind" arising from arrested or retarded development, an inherent cause, disease or injury, which "substantially impaired his mental responsibility for the killing". In R v Byrne [1960], it was held that this is not a medical question. The abnormality of mind must also arise from arrested or retarded development, inherent cause, disease or injury. In R v Hobson [1997], it was held that this does include battered wives syndrome, if Diana can show she suffered from this she would satisfy this part of the test. Finally, the defendant need only show that the abnormality of mind partially affected responsibility. In R v Lloyd [1966], it was held that the burden of proof on the defence is only on the balance of probabilities. If Diana can show she was suffering from battered wives syndrome, she may well be able to rely on this defence. If her intention to commit murder or GBH cannot be satisfied, or if she successfully pleads a partial defence to murder, Diana may well be guilty of manslaughter. To commit manslaughter, there must first be an unlawful act. This must be a criminal act [7] Diana commits an assault and battery by intentionally or recklessly causing the victim to apprehend immediate unlawful violence, even though she uses an object [8] . The unlawful act must be "dangerous." This is not a high standard and means it is just likely to injure another person [9] . An objective test asks would a reasonable person appreciate what he was doing was dangerous [10] . Here it is dangerous because hitting him with a lamp is likely to cause injury. Finally, the act must cause the death of the victim. We have already considered this. Therefore the mens rea and actus reus for Manslaughter are satisfied and Diana has committed manslaughter.

(b) How will this be altered when the Coroners and Justice Act 2009 comes into force?

The Coroners and Justice Act 2009 will abolish the common law defence of provocation to murder and will repeal section 3 of the Homicide Act 1957. Instead, it will create a new statutory defence. Section 54(1) of the new Act states that the defendant will be convicted of manslaughter if their act resulted from a "loss of self-control" which has a "qualifying trigger" and a person of the defendant's sex and age, with a normal degree of tolerance and self restraint and in the same circumstances, might have reacted in the same way. This fits Diana's circumstances, as she is unable to tolerate Edmund's behaviour toward her. Under s.54 (1)(b) it no longer matters if the loss of control is sudden, which means that the "slow burn" effect of battered wives syndrome discussed in R v Ahluwahlia can now count as provocation. It would seem that Diana qualifies for this defence. Section 55 explains that a "qualifying trigger" may be a "fear of serious violence" against the defendant or someone else, or things done or said which are "of an extremely grave character" which cause the defendant "to have a justifiable sense of feeling wronged." The fear of serious violence is a subjective one and all the defendant need show is that they genuinely perceived serious violence. Edmund has been violent to Diana in the past, so she may fear a recurrence of this. Here, Edmund, whose conduct includes verbal abuse and urinating on her, has regularly humiliated Diana. Diana's act does appear to have at least one qualifying trigger. However, s.54 (3) states that circumstances cannot be taken into account if they are only relevant to the defendant's "general capacity for tolerance or self-restraint," which is in line with the ruling in AG for Jersey v Holley. This may cast some doubt over whether Diana does qualify for this defence, as it suggests the defendant's previous history cannot be taken into account when deciding whether a reasonable person would have reacted the same way. Under s.54 (5), once the defence shows that the defence of provocation may apply, it is up to the prosecution to prove there was none beyond a reasonable doubt. Therefore, this does appear to strengthen Diana's overall defence. Ultimately, it will depend upon how the new legislation is interpreted by the courts when it comes into force. Noticeably, s. 53(1) of the Act amends s.2 of the Homicide Act 1957and the defence of Diminished Responsibility. Section 2 of the 1957 Act now says that in order to succeed with this defence the defendant must show there was an "abnormality of mental functioning" caused by a recognised medical condition which must "substantially impair their mental responsibility. If Diana can show she has battered wives syndrome, which is a recognized medical condition, she should still qualify for this defence.

(c) What difference would there be to your answer if Edmund survived the attack?

Diana may have committed either an attempted murder or at the least an assault. Attempted murder is governed by the Criminal Attempts Act 1981 s.1, which states that the defendant must do something, which is "more than merely preparatory" to carrying out the offence. This is a question of fact for the jury [11] . In DPP v Stonehouse [1978], it was held that the defendant's acts must be proximate enough to the substantive offence to be capable of amounting to an attempt. The defendant must have "Crossed the Rubicon and burnt his boats." Nevertheless, exactly how far the defendant must go toward committing the substantive offence has led to an inconsistency of approach in different cases. In R v Jones [1990], it was held that there may still be some acts left to perform before the substantive offence is committed. In R v Campbell [1991], the defendant took several actions toward carrying out an armed robbery and yet was still found not to have "embarked upon the crime proper." Diana actually battered Edmund with the lamp, so she appears to have embarked upon the process of killing him. In R v Nedrick, it was held that an intention to cause GBH is not sufficient for a charge of attempted murder. Therefore, it must be shown that Diana intended to kill Edmund before she can be charged with attempted murder. If it cannot be shown that Diana attempted to murder Edmund, she will still be guilty of a lesser charge. She has assaulted Edmund with an object. If he has suffered only "actual bodily harm," she will have committed an assault under the Offences against the Person Act 1861, section 47. If Edmund has suffered grievous bodily harm, which was defined in DPP v Smith as "really serious bodily harm," or a "wound," which is a break in the continuity of both layers of the skin [12] , then Diana may have committed an assault under section 20 of the 1861 Act. This requires her to be "malicious," which was defined in R v Savage and Parmenter [1992] as intending some harm or being reckless as to whether some harm might be inflicted. By using a weapon, she could have foreseen some harm would be caused, so she would be liable for this offence. If she intended to cause GBH, and Edmund suffered GBH, Diana would be guilty of an assault under s.18 of the Act. However, she must have the intention to specifically commit GBH for this offence, so it may be easier to show she committed a s.20 assault. Therefore, Diana may be guilty of an attempted murder, or depending upon the injuries, of a s.18 or s.20 or s.47 assault. She has definitely committed an assault and battery.
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