CRIMINAL LAW ASSIGNMENT
a) What is the Criminal Liability of all 3 of the officers
The officer who wwas iin contact with the victim could be convicted for
murder. According to the common law definition, it is the unlawful killing of
another human being, within any county of the realm, under the King or
Queen’s Peace, with malice aforethought. The actus reus elements of murder
are as follows: causing death of a human being; under the presidents’ Peace;
death occuring within a year and a day.
A person who is already dead cannot be the victim of homicide. But the legal
definition of death has proved elusive. There is conventional death, when the
heartbeat and breathing stop. But there is also brain death, when through
artificial means the heart continues to beat and air circulates in the lungs.
Though this is not an issue to be discussed it would be prudent to state the
case of R v. Malcharek, Steel [1981] 2 All ER 422. According the facts as
are presented to us, the victim was alive and there is no question as to
whether he is a human being or not. Moving to the other element of under
the presidents’ peace. Under the King or Queen’s Peace (as it is referred to)
This serves to exclude from the scope of murder, enemy soldiers killed in the
course of war as was seen in the case of Blackman [2014] EWCA Crim
1029 Outside the battlefield, soldiers and other military personnel are
subject to the same rules of criminal law as everyone else, and soldiers do
occasionally face prosecution for murder as was seen in the case of Smith
(Thomas) [1959] 2 QB 35. According to the facts of this case, it can not be
disputed as to whether the victim was under the queen’s peace or not and as
such It is not an issue to be labored on. Proceeding to the element, until
1996 there was a further element: that V had to die within a year and a day.
This rule was originally justified because of the difficulty in establishing
causation where there was a long interval between the original wound, injury
etc., and V’s death. The net result was that if D stabbed, shot, strangled or
otherwise fatally injured V, but V was kept alive for at least 367 days on a
life- support machine before death, D could not be guilty of homicide as in
the case of Dyson [1908] 2 KB 454. However, over time, medical science
developed to such an extent that the original justification was no longer valid
and it was abolished in other jurisdictions such as England. In applying this
law to the facts of this case it is no dispute that the victim died minutes later
after the police office had already applied pressure on the neck of the victim
for minutes even though the victim was expressing his lack of breadth in a
struggling manner. These elements suffice for the actus reus.
The actus reus elements of murder have been dealt with above. The only
remaining element is that of mens rea, ‘with malice aforethought’. This is a
legal term that may be potentially very mis leading, which requires neither ill
will nor premeditation. A person who kills out of com passion to alleviate
suffering (a so- called ‘mercy killing’) acts with malice aforethought as in the
case of Inglis (2010). Proof of malice aforethought means that a jury are
satisfied that, at the time of killing the Victim, the accused person either as
in the case of R. v. Moloney [1985] AC 905: intended to kill (express
malice); or intended to cause grievous bodily harm (implied malice). All of
the leading cases on the meaning and scope of intention have involved
murder, especially R v. Woollin [1998] 3 WLR 382. Grievous bodily harm
The meaning of the phrase ‘grievous bodily harm’ is the same as when the
phrase is used in the context of ss 18 and 20 OAPA 1861. In DPP v Smith
[1961] AC 290, a murder case, Viscount Kilmuir, with whom the rest of the
Lords agreed, held that there was no reason to give the words any special
meaning. Thus, he said, bodily harm ‘needs no explanation’ while ‘grievous’
means no more and no less than ‘really serious’. Subse quently, in the
context of s 20 OAPA 1861, the Court of Appeal held that the omission of the
word ‘really’ when a judge was directing a jury were not significant
(Saunders [1985] Crim LR 230. This was confirmed in the context of
murder in Janjua and Choudury [1998] EWCA Crim 1419; [1998] Crim
LR 675. The Court of Appeal dismissed the defendants’ argument on appeal
that the word ‘really’ had to be used in every single murder case.
Applying this law to the present facts, it would be difficult to pinpoint at a
point in time when we should determine whether the officer in contact with
the victim acted the malice aforethought. The but-for test. That ‘but for’ the
conduct of the accused, the victim would not have died as and when he did;
Dwight, (1910) and was applied in the case of Blackwell, (1978) and
Watson, (1989). D.F. Stevens in his history of the criminal law of England
says that mens rea means “no more than that the definition of all or nearly
all crimes contains not only an outward and physical element but a mental
element. And that mental element varies from crime to crime. It would be
prudent to draw your anttention to the fact that the officer would be
convicted for involuntary manslaughter. Involuntary manslaughter describes
any form of unlawful killing where there is no proof of malice aforethought.
There are three forms of involuntary manslaughter: constructive
manslaughter, gross negligence manslaughter, reckless manslaughter.
Germain to this case would be Gross negligence manslaughter The leading
case is the House of Lords’ decision in Adomako [1995] 1 AC 171. The
elements of this form of involuntary manslaughter are: the existence of a
duty of care; breach of that duty causing death; gross negligence which the
jury consider justifies criminal conviction. In essence The concept of a duty of
care is well known in civil law, but less so in criminal law. The criminal law
recognises certain duty situations, as seen, for example, a doctor owes his
patient a duty of care by virtue of his contractual obligations. A police officer
owing a duty of care because of the fact that he is a police officer etc.
Adomako itself involved a breach of duty owed by a hospital anaesthetist
towards a patient. Similarly, in Adomako, the House of Lords approved Stone
and Dobinson [1977] QB 354 (who were found to have undertaken a duty
of care. The next issue is at what point did the accused breached that duty.
In civil law, the defendant is judged against the standard of the reasonably
competent person performing the activity involved. In applying this to the
facts as are presented, police officers owe a duty of care to citizens of the
country to protect them and not to attack them. They also have a duty to
arrest but in the performance of that function, due care and skill must be
used. This contrarily we cannot say was used in this case. The officer
negligently applied his arrest to the victim by putting his knee on the neck of
the victim. Thus, we cannot reach any other conclusion that he breached
that duty and it caused the death of the victim. Conclusively, the officer can
be convicted for involuntary manslaughter. It may be possible to convicted
for manslaughter as other principals for omitting to take steps to make sure
that the arresting office do his job with due care and skill. Also, one key
aspect in this case is common design. It is said that on a charge of murder
against more than one accused whose common design extended to the
express or implied understanding that violence would be used if anyone
sought to prevent them from carrying out their purpose, all are guilty even if
one accused only is shown to have been the perpetrator of the crime as seen
in the case of JOHN & FOUR OTHERS V THE STATE 1973 (WELLINGTON
STREET MURDER).
