Criminology/ Criminal Law term paper 41576

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This problem question raises some issues from homicide, inchoate offences. In order to answer this question it is necessary to discuss transferred malice, conspiracy, and mens rea of Ben, Carl and Drew. The criminal liability of Ben, Carl and Drew is discussed bellow.

Gabrielle and her personal trainer, Carl may be liable for conspiracy. At common law the offence of conspiracy was committed where two of more persons agreed �to do an unlawful act, or to do a lawful act by unlawful means� [Mulcahy 1]. The offence of statutory conspiracy is defined in s 1 of the Criminal Law Act 1981. It provides that a person is guilty of conspiracy if he agrees with any other person or persons to pursue a course of conduct which if carried out as intended, will necessarily amount to the commission of an offence by one or more of the parties to the agreement or would do so but for the existence of facts which renders the commission of the offences impossible.

Gabrielle persuaded Carl to find a 'hit-man' to do the job as Carl had plenty of s among his clients. Carl arranged for Drew, his . They will be liable under common law and statutory conspiracy, because it was possible to commit the unlawful killing [R v O�Brien 2 ]. According to Section 1(1), Para (b) of the Criminal Law Act 1977 makes it clear that, as far as statutory conspiracy is concerned, the fact that the agreement is impossible to carry out is no bar to liability. In R v Scott 3 held that the agreement must be communicated between the parties. So they can exclude liability of conspiracy and may be charged these acts.

Gabrielle was having a relationship with her personal trainer, Carl; as a result they are still liable because they are not married. A person shall not be guilty of conspiracy if the only other person with whom he agrees is his spouse (s 2(2)(a).

There appear to be two elements to the means rea for conspiracy. First, each defendant should have knowledge of any facts or circumstances specified in the substantive offence. Secondly each defendant should intend the conspiracy to be carried out and the relevant offences committed. Gabrielle had had second thoughts and had been trying all day to Carl to cancel the plan but Carl's mobile telephone was faulty and he did not receive the call. From the fact of the question it is clear that Gabrielle had intention to killing her husband, Ben.

Though she changed her mind, she had second thought. So, the means rea is continuing with the Actus Reus. On the other hand the difficulties have arisen with the second element. In R v Anderson 4 a co-conspirator (the defendant) provided wire cutters to another prisoner to facilitate an escape; the defendant claimed that his only interest was money and did not believe the escape would success and therefore could not have intended it. In upholding a conviction for conspiracy, Lord Bridge decided, firstly, that a defendant could be convicted of conspiracy without having the intention that the agreement be carried out, and secondly, it is sufficient mens rea if, and only if, the defendant intended to play some part in the agreed course of conduct in furtherance of the criminal purpose. However, both propositions are now widely considered to be wrong but they have not been expressly overruled.

The first proposition is difficult to reconcile with s 1(1) and Criminal Law Act 1977 which requires there to be an agreement which if carried out in accordance with their intentions would necessarily amount to the commission of an offence. The Privy Council subsequently held that in Yip Chiu Cheung v R 5 that it must established that each conspirator intended the agreement to be carried out, but Anderson remains the highest authority. Lord Bridge�s second proposition has also been criticised, as it would appear to exclude from criminal sanction those who plan but do not take part in offences like Gabrielle and Carl.

However, this proposition was radically re-interpreted by the Court of Appeal in R v Siracusa 6, such that agreeing �to play some part� would include doing nothing to stop the unlawful activity. In R v Siracusa that the mens rea sufficient to support the substantive offence will necessarily suffice for v to commit that offence. For example, while the lesser intention to do grievous bodily harm is sufficient mens rea, the full intention to kill is required to support a charge of conspiracy to murder.

However, Drew will be liable for modes of participation and may be charged under S 8 of the Accessories and Abettors Act 1861; aiding, abetting, counselling, procuring; joint unlawful enterprises; the mens rea requirement of accessorial liability. Drew may be charged under S 1(1) of the Criminal Attempts Act 1981, for failure to murder Ben. He will be liable for attempt to murder because his act was more than merely preparatory to the commission of the offence. Gabrielle and Carl also be charged under this S 1(1) of the Criminal Attempts Act 1981 for sane reason.

A person will be liable for murder if he unlawfully killing a reasonable person who is in being under the Queen�s Peace with intention to kill [Moloney7, Cunningham 8, Vickers 9] or intention to cause grievous bodily harm [DPP v Smith 10], [Saunders 11]. Murder is unlawful homicide committed with �malice aforethought� with the penalty of mandatory life imprisonment. �Malice aforethought� describes the mens rea for a conviction of murder. Here it is necessary to consider that Drew had no �malice aforethought� to killing Sam, who delivers the parcel, which consists of a letter bomb. Sam and a pedestrian was the victim of the bomb explosion. In Draft Criminal Code (Law Com. No. 177), the Law Commission recommended a change in the law. Clause 54 provides that a person is guilty of murder if he causes death of another intending to cause death or intending to cause serious personal harm and being aware that he may cause death.

If they do not convicted under murder then they will be charged under constructive manslaughter. The substance of this offence is that if Drew kills Sam and a pedestrian in the course of doing an unlawful act or constructive manslaughter provided such act is not justified. Thus the �unlawful act� must satisfy the criteria. Unlawful act must be more than merely negligent act (Andrew v DPP 12). In Andrew, D had been driving dangerously s when he killed the deceased.

In Adomako 13 an anaesthetist failed to notice that a tube had become disconnected from the ventilator and the patient died. Lord Mackay disapproved Seymour and held that the Bateman test of gross negligence was the appropriate test in manslaughter cases involving a breach of duty, allowing the jury to consider the accused's conduct in all the surrounding circumstances, and to convict only if the negligence was very serious.

According to R v Creamer 14, a person is guilty of involuntary manslaughter when he or she intends an unlawful act that is likely to do harm to the person, and death results which was neither foreseen nor intended.

In Hancock and Shankland 15, the phrase �natural consequence� had created judicial confusion. The conflict between Moloney and Hancock led the court of Appeal to seek to restore some order to the confusion in Nedrick 16. Murder is the specific intent crime and manslaughter is the basic intent crime. Gabrielle was no longer in love with Ben and wanted to leave him as she was having a relationship with her personal trainer, Carl. However, she still needed her husband's money so she decided to have him killed in order to claim his life insurance. From these lines it is clear that intention to kill was the oblique intent and the secondary purpose was the insurance money.

However, Woollin17, test will not be applicable here. In this case the court approved a direction which left it open to the jury to infer intention where they were satisfied that D foresaw a substantial risk of serious harm to the victim, his three month old son, whom he threw four or five feet across a room in the direction of his pram causing him fractured skull from which he died.

To identify there liability it is necessary to consider few relevant case. R v Yaqoob 18 considered a partner in a taxi firm who was responsible for making all necessary arrangements for the inspection and maintenance of a minibus which had overturned after its tyre burst, killing one of its passengers. He was convicted of manslaughter because the failure properly to maintain the minibus was the direct cause.

In R v Pittwood 19 a gatekeeper was convicted of manslaughter. Wright J, held, however, that the man was paid to keep the gate shut and protect the public so had a duty to act.

R v DPP, ex p Jones 20 that said that the test of negligent manslaughter is objective, confirmed Attorney General�s Reference (No 2 of 1999) as a correct general statement of law.

In R v Dawson 22 in judging whether this act was sufficiently dangerous, the Court of Appeal applied a test based on the "sober and reasonable". However the court disagreed in R v Watson 23 in which the victim's approximate age (he was 87 years old) and frail state would have been obvious to a reasonable person. It is foreseeable that the victim is at risk of suffering some physical harm 24 from such a punch and that is sufficient. Physical harm includes shock. The court held that the deceased's death was not caused by injuries that were a foreseeable result of the affray. The assault by the second defendant was an unlawful act causing death.

It has been held, however, that if the immediate cause of death is part of what might be regarded as one �series of acts� or one �transaction� then liability for murder may be imposed if the defendant acted with malice aforethought at some point during that �series� or �transaction� (Thabo Meli 25; Church 26).

In Le Brun27, the court of appeal held that if a person unlawfully assaults another and, believing he has delivered a fatal blow, attempts to conceal or otherwise dispose of the body, then he will be guilty of murder if the blow was struck with malice aforethought, even if the immediate cause of death stems from the concealment. Thus, in this case, jack may be charged with murder.

By virtue of transferred malice, Drew may be convicted of murder or manslaughter. Latimer28, D�s conviction of unlawfully and maliciously wounding P was upheld, although D had aimed the offending blow with his belt at Q and it had glanced off striking P and causing a severe wound. The court applied the doctrine of �transferred malice� Lord Coleridge CJ stating (at p. 361):

It is common knowledge that a man who has an unlawful and malicious intent against another, and, in attempting to carry it out, injures a third person, is guilty of what the law deems malice against the person injured, because the offender is doing an unlawful act, and has that which the judges call general malice, and that is enough.

In Attorney General�s Reference (No. 3 of 1994)29, the doctrine of transferred malice was affirmed and applied in a novel way by the Court of appeal. However, in Pembliton30 this principle was unsuccessful.

Drew�s conduct was

The accused conduct must be a sine qua non of the prohibited consequence. In White31 put cyanide in his mother�s drink with intent to kill her later his mother was found dead with the glass containing the poisoned drink beside her three parts full. Medical evidence established that she had died of heart failure and not from poisoning. D was acquitted of murder as he had not caused her death and thus there was no actus Reus. He was however, convicted of attempted murder.

In con conclusion it can be said that they will be liable for murder or manslaughter, its judge discretion because it is common law crime and jury will decides the facts of the case.


1) Smith & Hogan, Criminal Law, Cases & Materials, 8th edition, Butterworths Lexis Nexistm UK,

2) Smith & Hogan, Criminal Law, 11th edition (2005), Oxford University Press,

3) ,

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5) Michael J. Allen, Criminal Law, 7th edition, (2003), Oxford University Press,


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