Question 1

Sally was a member of a group committed to the violent overthrow of society.  She telephoned a police station and threatened to release a highly toxic gas into the underground rail system of Banchester within 30 minutes.  The police closed the system and found the source of the gas, but could not disable the timing device.  Gas was released, killing Tim, a police officer, instantly.  Colin, a member of the rail staff, experienced extreme breathing difficulties.  In order to avoid suffering longer than necessary, he took a pen-knife from his pocket, cut his throat and died a minute later.  Dave, a paramedic, saw Elly, laying on a platform, was still alive.  He left her there and ran away so as not to put his own life at risk.  Elly died an hour later.  Jane was badly wounded in the escape from the station.  At hospital, she refused a potentially life-saving blood transfusion owing to her religious principles and died some hours later.

Discuss whether Sally and Dave have committed any homicide offences.

Answer guidance

This question requires a detailed analysis of the general principles of criminal liability, including causation and oblique intention. First, you should deal with Sally’s liability for murder. Murder is defined as the unlawful killing of a human being with malice aforethought. The prosecution must prove beyond reasonable doubt that Sally caused the death of Tim, Colin, Elly and Jane. The tests for factual and legal causation should be used here, including some discussion of whether any of the protagonists have broken the chain of causation between Sally’s original action and the deaths of the other victims. In relation to Colin, consideration will need to be given to the cases of R v Blaue [1975] and R v Dear [1996]. The same applies to Jane. The rule is that the defendant must take the victim as he finds him – does Jane’s decision make any difference? Does Dave’s failure to help break the chain of causation? On intent, Sally’s intention was to overthrow society, so the judge will need to give the jury a ‘Nedrick’ direction (R v Nedrick [1986]). Intention cannot be inferred by the jury unless death or serious injury is  a virtually certain consequence of the defendant’s actions, and that the defendant foresee sit as such. Did the warning mean that death could be appreciated as a virtually certain consequence? If the test is satisfied, Sally will be guilty of murder. Dave may be guilty of gross negligence manslaughter if he has a duty of care to Elly. As he is a paramedic, a duty arises by contract (R v Pittwood [1902]). The remaining principles in R v Adomako [1995] will need to be discussed, in particular whether this is ‘gross’ rather than ordinary negligence.

Question 2

 “In view of the fact that the House of Lords has now reviewed the meaning of intention in murder on at least four separate occasions (Hyam, Moloney, Hancock and Shankland, and Woollin), it would appear that intention is not a word which can be easily explained and perhaps the time is ripe for a statutory definition.”.

Discuss.

Answer guidance

This question requires a detailed analysis of the concept of intention. Care should be taken to address the suggestion in the question that a new definition is needed. Start with a definition of direct and oblique intent. A direct intent occurs when it is the defendant’s aim or purpose to achieve a result, whereas intention can be described as oblique when it is not the defendant’s aim to achieve that result, but death or injury occurs as a consequence of the defendant’s actions. Give a brief summary of the approach taken by the courts on oblique intent. Emphasise the move from an objective approach in Hyam [1974] to the more subjective approach in Nedrick [1986] and Woollin [1998]. You should then address the question. Outline the current test in Nedrick. A discussion should then follow on any perceived lack of clarity in the test. For example, the use of the word ‘infer’ may be confusing for juries. Lord Steyn in Woollin preferred the term ‘find’. Reference could then be made to the Law Commission’s suggested definition. Conclude and link back to the question.

Question 3

‘The House of Lords in R v G and Another [2003] was correct in its decision to overrule itself in MPC v Caldwell [1982].’ 

Discuss.

Answer guidance

 A full discussion of the concept of recklessness is needed in this essay and an appraisal of the House of Lords’ decision in R v G [2003]. Start with a brief definition of recklessness and how it can be distinguished from intention. This should be followed with a brief discussion of subjective and objective recklessness. This should include a description of the development of the law with reference to Cunningham [1957], the change of the law in Caldwell [1982] and finally the decision in R v G. At this point it is worth highlighting some of the problems in this decision (for example, the case of Elliott v C [1983], widely seen as being unfair) and the reasons for the return to the objective test. A brief description of R v G should then follow. Lord Bingham’s speech in R v G could be contrasted with that of Lord Diplock in MPC v Caldwell. Finally, link back to the question, assessing  the decision and its fairness, and form your conclusion.

Question 4

Diane is a railway enthusiast and volunteer at the London Steam Railway Society.  She operates the gates at one of the level crossings on the railway during public open days, opening the gates when safe and closing them as trains approach.  She is very annoyed that no-one has brought her any lunch one day and marches off to get a sandwich, leaving the gates open.  A young child, Vicky, runs across the track as a train approaches and falls under the wheels.  Olly, who lives next door to Vicky, sees the danger but fails to shout a warning.  Vicky is taken to hospital and put on a life support machine which Ralph the doctor disconnects two weeks later because Vicky is in a coma and has no hope of recovery.  She dies within days. Discuss.

Answer guidance

 This question concerns involuntary manslaughter and a good structure is essential given the different protagonists. You should start by stating that a murder charge would not be appropriate due to the lack of intention, and then move to gross negligence manslaughter. This is the best choice as there is an omission on Diane’s part. The first thing to establish is whether she owes a duty of care to Vicky. She has a responsibility to open and close the gates; however she is not an employee, but a volunteer. The cases of R v Pittwood [1902] and R v Stone and Dobinson [1977] should be discussed here. Consideration should then be given to whether Olly or Ralph have broken the chain of causation. It is unlikely that Olly, as a neighbour would have a legal duty, therefore the chain of causation remains intact. It is well established that medical treatment, even where it is negligent, does not affect the defendant’s liability (Malcherek; Steel [1981]). Ralph’s liability should then be considered separately. Any offence will depend on whether he is in breach of a duty of care and, possibly, whether he commits an act or omission (Re A [2000], it should be noted, doubts this distinction). Consider Airedale NHS Trust v Bland [1993]. Is it in Vicky’s best interests to end her life support? A charge of gross negligence may be considered, but is unlikely.