We will first examine the potential liability of Jenny for the death of Bob, in which Jenny would be liable for the homicide offence of murder, through the act of Jenny picking up a hammer and repeatedly hit Bob with it.
Under The Homicide Act 1957, the Coroners and Justice Act 2009 and the Corporate Manslaughter and Corporate Homicide Act 2007 , the definition of Murder has been established from Lord Coke ; “Murder is when man of sound memory, and the age of discretion, unlawfully killeth within any country of the realm any reasonable creature in rerum natura under the king’s peace, with malice aforethought, either expressed by the party or implied by law, so as the party wounded, or hurt, etc die of that wound or hurt, etc within a year and a day after the same.”
The actus reus is the physical element or the guilty act of an offence. To establish the actus reus of murder, three main elements must be satisfied. The first being that the act itself must be an unlawful killing, in the case of Jenny, the act which was hitting Bob was by no means completed with a lawful defence, therefore meeting the unlawful killing requirement. The second element is that V must be a person, Bob is not an unborn child and has fully expelled from the womb and also is not in any medical means that is keeping him alive such as being brain dead.
The third element of the actus reus of murder is that the act that has been completed must have been performed under the Queen’s peace. Jenny did not act was not under section 9 of the Offences Against the Person Act 1861 ; which allows any murder or manslaughter committed by a British citizen unable to be tried for murder in England, as a result Jenny’s act meets all three elements of the actus reus.
Jenny’s act is a direct cause of Bob’s death as Jenny hits Bob repeatedly and through chain of causation, Bob dies. To establish factual causation, one must apply the ‘but for’ test, as established with the case of R v White[1910] . This allows us to consider various factual causes of death. Applying the facts to the case, but for Bob provoking Jenny would he have died? The conclusion being no, but Bob’s abuse angered Jenny and this was the main factor of initiating the chain of events. When Jenny hit Bob several times, would Bob have died? The conclusion drawn is no, Bob would not have died, but would have been left unconscious still needing medical attention, thus Jenny being a factual and a direct cause of Bob’s death.
Legal causation is also considered at when satisfying the basis of liability and is used to seek fairness in facts of the scenario. There must be a substantial; de minimis principle meaning more than trivial and operative cause of the outcome, which does not have to be the sole cause, providing that it is still a cause as demonstrated in R v Paggett(1983) .In Jenny’s case, she can be shown to be the substantial and operative cause as although her act was not the main reason as to why Bob died, it still played a significant role, similar to the case of R v Cheshire [1991], although the hospital were not a fault due to negligence because the puncture was not an act they had completed themselves. Although the case of R v Smith shows complete similarity as there was a delay in medical care to the victim in R v Smith and in the case of Bob. Overall, at the time of Bob’s death, Jenny’s act was still an operating and substantial cause therefore Jenny was the legal causation.
For there to be complete criminal liability the actus reus and mens rea requirements must be satisfied. Mens rea is stated in R v Savage (1991) as “an intention to cause the victim to apprehend unlawful and immediate violence or recklessness whether such an apprehension be caused”. In the case of Jenny, the intention that is under view is oblique intention; the situation where the consequence is foreseen by the defendant as virtually certain although it is not desired for its own sake, and the defendant goes ahead with his actions anyway. This can be expressed in Smith and Hogan. We would apply an objective test which looks at the perspective from a reasonable person point of view, to assess whether or not a reasonable person would have foreseen the result of the defendant’s whom is Jenny in this case. Although it can be argued that Jenny had direct intention as well as an implied intention to kill Bob as the act itself was not one blow, the action was carried out multiple times.
Intervening acts occur after the defendant’s act which breaks the chain of causation, but only if the circumstances are an overwhelming cause of death; and an unforeseeable occurrence. The intervening act in case of Jenny is acts of third parties. Acts of third parties applies here as the ambulance crew whose duty was to give Bob medical attention was met with a delay as a result of a tyre puncture. This intervening act was a significant contribution to Bob’s death as Bob could have received medical attention that would have saved him from death. Although the act did have a huge significance which would mean that Jenny’s initial act would be insignificant, the intervening act was unforeseeable. Above all there is the argument of whether Bob would need medical attention if Jenny had not performed her attack, the answer being no.
In common law, a partial defence is a defence that does not shift the whole defence from the defendant, but looks at whether or not the defence could not be absolute. In section 54 and 55 of the Coroners and Justice Act 2009, loss of control is where a person (“D”) kills or is a party to the killing of another (“V”), D is not to be convicted of murder if; D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control.
For loss of control to be applied, three elements have to fulfilled. The first being that Jenny’s conduct must have resulted from lack of self-control, whilst it could be claimed that Jenny was in some distress after the circumstances in relation to her Daughter which made her sensitive and changing Jenny’s mind set at that particular moment that Bob made those comments, causing her to act in a violent manner. There is no clear indication that Jenny was in distress. Element two is that there must be a qualifying trigger which makes Jenny lose control and kills Bob. The trigger was that Jenny had a sense of being seriously wronged by things said by Bob, this would be justifiable as Bob’s words could have changed her emotions, making act out in the way she did. Element three is whether a reasonable person would have reacted like Jenny. Tolerance and self-restraint is examined for certain characteristics such as age and gender. It is said that for Jenny’s age, she should have a higher tolerance than anyone of a younger age, this is indicated in R v Van Dongen (2005) the defence failed because like Jenny, the defendant should have had a normal degree of tolerance and self-restraint and therefore would not have acted by repeatedly kicking V in the head and body, comparing this to Jenny she would have been seen to have acted in the same manner. The circumstances of Jenny could be taken into account when considering whether a person of D’s sex and age with a normal degree of tolerance and self-restraint would have acted in a similar way, under section 54 (3) of the Coroners and Justice Act (2009) Jenny’s daughter being imprisonment would be taken into account, such as in the case of Gregson (2006) as it could be claimed that she was depressed as a result of previous circumstances. Jenny could not claim loss of control as her a person of her age and gender would have acted differently.
To conclude Jenny would be liable for murder as she could does not satisfy the requirements for partial defence making a claim of voluntary manslaughter unreasonable. Jenny meets the actus reus and the mens rea requirements needed for the criminal liability of murder as she completed the act with the intent of killing Bob. This can be shown from the amount of times she hit Bob making her the sole cause and the intervening act inadmissible. Although a defence of loss of control could have claimed, this defence would be denied as she is of character of someone who would have a high tolerance and self-restraint and she may be distraught from her daughter being in prison, but there is no evidence of mental in capacity, therefore loss of control is not complete.