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Criminal Alternative Assessment

Student ID: 846574
1) “Despite it being such an important concept, the meaning of intention has

caused problems for the courts.”

(J. Herring, Criminal Law: Text, Cases and Materials, 6th ed. (OUP 2014), p.

134)

Discuss with reference to decided cases.

The actus reus for murder is relatively simple to outline; it is the unlawful

killing of a person caused by an act or omission of the defendant. The mens rea for

murder is malice aforethought which means an intention to kill or harm,

distinguishing murder from unlawful killing instances. Intention in a criminal offence

capacity is known to be a difficult concept to define. The term and concept of

intention is split into two key areas; “direct intent” and “indirect or oblique intent”.

Most cases involving murder with a direct intent and are therefore relatively

straightforward in their understanding, as the defendant makes clear his intention,

but in cases such as R v Woollin [1999] AC 82, there is this notion of oblique or

indirect intent, and this is where difficulties in analysing mens rea can be seen. The

decision in Woollin still causes confusion and some say it lacks clarity, suggesting

that there should be a statutory definition for intention.

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Student ID: 846574
Where oblique or indirect intent is in question, the result of the act was not the

person’s purpose, it was something that happened as a side effect of that individual’s

actions. It could be said that they could foresee the result of their action but did not

intentionally desire that outcome; it is with the judge to follow guidelines with regards

to instructing a jury on the definition and meaning of key terms such as this. As an

example, D may plant a bomb on a train with the aim to destroy cargo on board

which they had insured; he doesn’t want the train operator or passengers to die, and

his purpose is not to kill them, but he is aware that if the bomb is activated mid-

journey, people will inevitably die. Before Woollin, there were a number of murder

cases that has problematic themes surrounding the directions by judges to the jury

on oblique intent. The courts suggested that there lies two questions to be taken into

account: “Does the defendant need to have foreseen the result?” and “how likely is

the ‘adverse effect’ to occur, does it have to be virtually certain to occur or does it

have to be merely probable?”

Haym v DPP [1975] AC 55 was a case that discussed oblique intent, and

Lord Diplock suggested that D intended a result if she knew that it was a probable

result of her actions, despite it not being or aim or purpose to cause that result, and

in this instance that was the death of two children in a fire she had intended to

cause, with the aim of scaring her ex-boyfriend. This has been criticised as it is
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Student ID: 846574
difficult to distinguish murder from manslaughter, the former of which requires intent

and the latter often only recklessness.

Following from that, there is the case of R v Maloney [1985] AC 905 which

involved the defendant and their stepfather, with whom he had a good relationship,

playing a drunken game to load a shotgun the fastest, then the defendant was

challenged by the stepfather to fire the gun. This was a rare instance where it was

deemed necessary to direct the jury, but in no further way than to consider two

questions; was the death or injury a natural consequence of the defendant’s

voluntary act? And did the defendant foresee that consequence as being a natural

consequence of his act? These are objective and subjective questions/formulas

respectively, and it was suggested that only if the answer to both of the questions

was yes, then it is inference for them to decide that he intended that consequence. In

the instance of this case, it was determined that the defendant’s appeal be allowed,

and that he did not intend to kill his stepfather.

Not long after there is the case of R v Hancock and Shankland [1986] 1 AC

455 where the “natural consequence” direction in Maloney was supposedly not clear,

as it doesn’t take into account the probability of the result happening. It was held that

“the greater the probability of a consequence, the more likely it is that the

consequence was foreseen”, and that if the consequence was foreseen “the greater

the probability is that the consequence was also intended.

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Student ID: 846574
The last key case leading up to Woolin is R v Nedrick [1986] 1 WLR 1025 which

involved the pouring of petrol and starting of a fire in a house, again, resulting in the

death of a child. The defendant claimed he had not intended to kill or cause grievous

bodily harm. In this instance, it was held that where murder is the charge and where

the simple judge’s direction on indirect intent is not enough, the jury should be

directed that they are not entitled to infer the necessary intention apart from when

they are certain that death or serious bodily harm was a “virtual certainty” as a result

of the defendant’s actions, and that the defendant appreciated that this was the

case. Again, there is a structure of objective and subjective questioning here.

Woollin is where precedent has landed for now; the House of Lords approved

the test which was used in Nedrick, replacing the word “infer” with the word “find”; so

it would read that the jury are entitled to find that D had the necessary intent if death

or serious injury was a virtual certainty as a result of D’s actions and if D appreciated

this was the case. Even with common law precedent, the definition for oblique intent

is so difficult to cultivate and understand; is it a rule of substantive law or evidence?

The Woollin test still has criticisms; to go back to the example initially given of

the train, if the Woollin test is applied, it is not virtually certain that the train operator

would die or suffer GBH, then the defendant cannot be found guilty of murder and it

is under-inclusive, but many also suggest it is over-inclusive when looked at through

the perspective of other cases such as R v Steane [1947] 1 KB 997. The Law
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Commission has proposed reforms to the test, which would involve the removal of

the first objective part of the Woollin test, but as a test in common law, it is still

shrouded with uncertainty and moral dilemmas.

Word Count: 1047

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Student ID: 846574

4) Majida and Laura have been next-door neighbours for a number of years,

and they frequently visit each other’s homes. One evening, when Majida

returns home from work, she browses through social media and finds

photographs of Laura kissing and embracing her husband, David.

The following morning, Majida drinks two small shots of vodka and then

confronts David. She shows him the photographs and asks for an explanation.

David laughs in her face and says “You don’t have the courage to do anything

about it. You’re pathetic, and Laura is a much better lover than you.” Majida

becomes irate and upset. She rushes out of the house and, seeing David’s car

on the driveway, instantly decides to cut his brakes and loosen one of his

wheels. Majida knows that David likes to drive quickly and she knows that his

route to work covers fast roads and tight corners. She aims to terrify him so

that he will realise the error of his ways.

As David is driving along a country lane at the speed limit of 60 miles

per hour, one of his wheels falls off. He hits the brake pedal as hard as he can,

but it does not respond. He crashes into a brick wall and suffers severe head

injuries.
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An ambulance arrives on the scene within ten minutes and rushes David

to hospital. He is treated by Dr Jones, who is approaching the end of a

particularly difficult shift and feels exhausted. While operating on David, he

accidentally severs one of his arteries. Despite the best efforts of Dr Jones and

his team to fix the problem, David eventually dies.

Discuss Majida’s potential criminal liability for homicide offences.

Firstly, there is a distinction to be made between murder and manslaughter;

the actus reus of murder consists of the unlawful killing of a human being under the

“Queen’s peace” – it is somewhat clear that this has occurred, Majida’s actions go

toward causing the death of David. The mens rea of murder is malice aforethought,

often interpreted as an intention to kill or cause grievous bodily harm. Something

which is important to note and that will be discussed further is that mens rea of

murder covers not only direct intent, but also oblique intent, a test for which is

established in R v Woollin [1999] AC 82. Voluntary manslaughter possesses the

same actus reus as murder, but the defendant demonstrates one of three partial

defences to murder; diminished responsibility; loss of control; or the participation in a

suicide pact. Defendants who are found guilty of involuntary manslaughter, for which

the actus reus is still the same, lack the concept of “malice aforethought” or mens
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rea of murder and is then broken down into unlawful and dangerous manslaughter or

gross negligence manslaughter.

This case would seem to fall under the requisites for unlawful and dangerous

manslaughter; the defendant must carry out an act (cutting the brakes on David’s

car) with reference to R v Lowe [1973] QB 702 – an omission is not sufficient in this

case. The act must be a criminal offence with reference to R v Franklin [1883] 15

Cox CC 163, it cannot arise from a civil offence (tampering with someone’s vehicle to

potentially cause harm and destruction of property are both criminal offences). The

act must be dangerous (which it quite clearly is) but referencing R v Church [1966] 1

QB 59 where the judgement held that an act will be classed as dangerous if there

was some objective risk that harm could result from it. The reasonable person test

can be applied here so that the jury are satisfied that a reasonable person would

have realised that this act did indeed create a potential risk for harm. This test does

not possess a subjective element, so it is not necessary for the defendant to

appreciate this risk. A reasonable person would assume that cutting someone’s

brakes could result in the driver’s death.

There is scepticism regarding the test for this, and whether there should be an

objective risk of some harm or whether the risk actually needs to be of

that “specific” harm occurring. R v JM and SM [2012] EWCA Crim 2293 has

somewhat established that this need not be the case, suggesting that only a risk
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of “general” harm should be foreseeable. The specific harm that was caused after

the fact does not need to have been foreseen. There is a connection between this

paradigm and the “thin skull” principal, the defendant must take his victim as he finds

them. If they are causing a foreseeable risk of any harm, it doesn’t seem possible for

them to fairly argue that the specific harm they actually caused was not foreseeable,

and this is discussed throughout the case of JM and SM. Finally with regards to the

test for a dangerous act, the judgement in R v Watson [1989] 2 All ER

865 establishes that even though a reasonable person need not appreciate the

specific harm caused, they do need to appreciate and understand the risk at the

time the act was committed. While it doesn’t apply as much here because cutting

someone’s brakes seems on the face of it, very clearly dangerous, but where an act

is not inherently dangerous, such as a theft or burglary, it becomes dangerous only

when the circumstances make it clear to any reasonable person that it may result in

some harm.

Finally, the act must result in the death of a human being, with a clear chain of

causation – “but for the defendant’s act would the victim died as and when they did?”

for factual causation outlined in R v White [1910] 2 KB 124, and “was the act an

operating and substantial cause of death?” for legal causation outlined in R v Smith

[1959] 2 QB 35. It is a possible point for discussion whether or not David would have

died as and when he did if his brakes were not cut, because a wheel falls off posing
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Criminal Alternative Assessment
Student ID: 846574
a danger in itself, but had he had brakes, he could have corrected the situation as

many do. In the description, the fact that he cannot brake causes him to be unable to

react to the situation, regardless of what speed he was going (as we do not know the

speed limit etc.) and the cutting of the brakes was arguably an operating and

substantial cause of death.

On the face of it, Majida seems potentially liable, but the chain of causation

has to be analysed lastly. The theory of novus actus interveniens must apply to

cases such as these, meaning a new intervening act – these can come in different

forms such as acts of god, third party acts or medical treatment. The clear one to

discuss here would be the medical treatment David had received after the accident.

It is generally the case that if medical treatment does not in itself cause the victims

death, it is rare that it will be decided that the chain of causation has been broken. If

one looks at the cases of R v Smith against R v Jordan [1956] 40 Cr App E 152,

both portray that the level of poor medical treatment which is needed to consider a

break the chain of causation is rather high. The case of Smith actually established

that even negligent medical treatment won’t result in a break in the chain of

causation. The case of Jordan went into more detail and specified that only medical

treatment that could be considered “palpably wrong” could ever break the chain.

Further to this, R v Malcherek and Steel [1981] 1 WLR 690 makes the point that
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medical professionals turning off life support will not result in a break in the chain of

causation.

The potentially negligent care that took place on David after the accident

could be considered as palpably wrong, due to the lack of sleep and therefore

mistake made, but it is difficult to take a stance on this, but by following the

precedent set in Smith, it seems that a break in the chain would not occur here, and

Majida would still potentially be criminally liable for the unlawful and dangerous act

manslaughter of David.

Word Count: 1089

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Criminal Alternative Assessment
Student ID: 846574