Question 1

Wilma suffered from a depressive condition causing occasional aggressive outbursts.  Her relationship with her partner, Jake, was stormy. Jake frequently subjected Wilma to insults and threats.  One day, Wilma returned home to find Jake in bed with Zohra.  When Wilma asked what was going on, Joe replied that she was pathetic and that she should go back to the kitchen sink where she belonged.  In fury, Wilma picked up the nearest object, a heavy pot, and threw it at Joe.  It missed him, but hit Zohra who was knocked unconscious.  Zohra was 24 weeks pregnant and went into premature labour.  In the early hours of that night, Wilma killed Joe with an axe whilst he was asleep. Zohra’s baby was born alive, but died within a week. 

Discuss Wilma’s liability for murder and whether she has any defences to this charge.

Answer guidance

This is a fairly typical question on murder and the defences, with an additional element of transferred malice. Wilma has caused Jake’s death by killing him with an axe; she also seems to have caused Zohra’s by throwing the pot at Joe. The factual and legal causation tests are satisfied. Two further matters require discussion: the mens rea of Wilma, and, separately, whether she can use one of the partial defences to murder. In killing Joe with the axe, she has a direct intent to kill or to do serious harm. She does not intend harm to Zohra, but the doctrine of transferred malice will apply. This operates as long as the harm caused was of a similar nature to the harm intended (R v Latimer [1886], R v Pembliton [1874]). Wilma may wish to avail herself of the partial defences to murder under the Homicide Act 1957 as amended (diminished responsibility) and the Coroners and Justice Act 2009 (loss of control). In the former, she will need to show that she has an abnormality of mental functioning caused by a recognized medical condition which substantially impaired her responsibility for her acts or omissions and provides an explanation for the killing. Her depressive condition will certainly suffice here as a medical condition, and the other conditions are satisfied. In relation to loss of control, there must be a qualifying trigger caused by a fear of serious violence or circumstances of such a grave character that she lost control. The prosecution may still argue that the ‘anger’ trigger is not available because s55 (6) expressly precludes its operation in circumstances where the thing said or done that is claimed to have triggered D’s action constitutes sexual infidelity – however the case of R v Clinton [2012] casts doubt on this.  In addition, the objective test requires the jury to assess whether a person of a normal degree of tolerance and selfcontrol would have acted in the same way in the circumstances of the defendant. The depressive condition Wilma suffers from may not be relevant in this regard.

Question 2

The Coroners and Justice Act 2009 has clarified and improved the law the law relating to the partial defences to murder. Discuss.

Answer guidance

A typical exam question asking you for an assessment of the changes in legislation brought about by the Act. Start by setting out, in brief, the two partial defences to murder. Diminished responsibility is amended in the Act and loss of control replaces the previous defence of provocation contained in the common law and in the Homicide Act 1957. In relation to diminished responsibility, the law has been clarified specifically with regard to the definition of the kind of condition which can count as an abnormality (now, of mental functioning). The types of mental illness covered are much wider. In addition, the condition must provide an explanation for the killing, making the law much simpler on this point. In relation to the defence of loss of control the requirement for the loss of control to be sudden is abolished; and sexual infidelity is abolished as a reason for the reaction. ‘Revenge’ killings will not fall within the defence. The abolition of the sudden requirement will certainly make the defence more accessible for victims of domestic violence who kill their partners. The case of Holley [2005] had said that provocation was confusing to juries. The renewed objective test will have helped this confusion, by making it clear that most characteristics are not to be included. However, case law has thrown some doubt both on the sexual infidelity exclusion (R v Clinton [2012] and on the definition of ‘circumstances’ in the objective test. Therefore, while some improvements have certainly been made, not all aspects of the new legislation are entirely clear.

Question 3

Terry was an extremely timid long-distance lorry driver who regularly travelle dabroad. He frequently encountered international criminal gangs with reputations for violence. Mohammed, a gang member, asked Terry to assist in transporting sixtyasylum-seekers from the Middle East to Britain. When he refused, Terry thought heheard Mohammed threaten violence against his family the next time Mohammed wasin Britain. Terry therefore reluctantly agreed and one morning hid sixty people in hislorry in Germany, intending to arrive in England the next day. In fact, Mohammed had only said how nice it would be to meet Terry's family when he was next in Britain. On being searched at Dover (an English port) Charles, a customs' officer with a reputation amongst his colleagues for paranoia and aggression discovered fifty-eight dead bodies in Terry's van, their deaths the result of asphyxiation from a lack of oxygen. Noni, a survivor of the journey, punched Charles during the search. Charlesresponded by roughly pushing Noni out of the lorry. She fell onto the ground and diedfrom a fractured skull. Discuss the liability of Terry and Charles for the deaths. (You may ignore any immigration offences).

Answer guidance

This problem repeats the facts of R v Wacker [2003], which considered whether a lorry driver in this situation would owe a duty of care to the asylum seekers being carried. The court considered the tortious concept of ex turpi causa and determined that it would not apply in this situation. Gross negligence manslaughter should be the main focus of discussion. The Adomako (1994] principles should be explained and applied. Can Terry benefit from the defence of duress? It is, in principle, available for a manslaughter charge. Reference would need to be made here to the principle of the subjective and objective tests in Graham [1982] and Hasan [2005]. As Terry has voluntarily associated with criminal activity, he may not be able to benefit from the defence. However, he is not a gang member himself. The objective test would then need to be discussed, including the Bowen principles. Will Terry’s timidity be taken into account? Charles may be guilty of manslaughter by an unlawful and dangerous act. The act is a dangerous one. Causation must be discussed and is easy enough to establish in this scenario.

Question 4

Naveed offered Betty a lift home after a dance.  He was feeling angry because Betty had been spreading rumours about him.  During the journey he shouted that he was going to break her neck if she continued spreading rumours.  In a highly distressed state, Betty jumped from the car, fell to the ground and fractured her left wrist.  At that moment, Betty was grabbed by Peter who was fleeing from some police officers.  Peter took Betty hostage and dragged her to the end of a long, dark corridor in the flats from where he fired one bullet at the approaching police.  Police Constable Patel fired three bullets in response and seriously wounded Betty.  The only duty doctor in the hospital to which Betty was taken got ready to see her urgently but unfortunately he was so tired that he fell asleep.  She died in the waiting room that night.

Discuss.

Answer guidance

Naveed might be guilty of s47 Offences Against the Person Act 1861 – an assault or battery occasioning actual bodily harm. There are three elements to discuss – the initial assault or battery which causes actual bodily harm. Causation must be discussed. Did Betty break the chain of causation by jumping? He may also be guilty of manslaughter by an unlawful and dangerous act – but was the chain of causation broken by Peter, PC Patel or the doctor? Peter may be guilty of the manslaughter of Betty but was the chain of causation broken by PC Patel?  If not, was it broken by the doctor? PC Patel may be guilty of gross negligence manslaughter. Did he have a duty of care? The mens rea required for both these offences is that of the original act.