Case Study On Criminal Liabilities And Defences

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Case Study: Raquel is lazy. Boris, her line manager, assigns her an important, but menial, task. She
fails to complete this task, and tells him that she did not do it because she is 'not his servant'. Boris
loses his temper, and kills Raquel.
Boris claims that he found Raquel's behaviour particularly infuriating because 'women should know
their place'. He has trouble controlling his temper because of the pain from an old war wound. Advise
Boris about his criminal liability.
During the attack, he accidentally hits Zhanna, another co-worker, causing her severe bruising.
Boris may be liable for offences against both Raquel and Zhanna. In relation to Raquel, Boris may be
criminally liable for her murder. In relation to Zhanna, Boris may be liable for one or more of several
offences including Battery, Assault Occasioning Actual Bodily Harm and/or Assault Occasioning
Grievous Bodily Harm. Liability, possible defences and mitigating circumstances will be considered in
turn.

Boris Liability for the murder of Raquel

In order to be criminally liable for the murder of Raquel, the Prosecution will have to prove the elements
of murder. Cokes Institutes defined murder in 1797 as being committed where a person of sound
mind and discretion unlawfully kills any reasonable creature in beingwith intent to kill or cause
grievous bodily harm . This principle has been built on by modern case law but not fundamentally
altered and still applies today. Applying this definition to Boris case, there does not appear to be any
contention as to whether Boris killed Raquel; Boris clearly states that he committed the act. Whether
Boris was of sound mind will be considered but again, there is clear evidence that Boris intended to kill
or cause grievous bodily harm to Raquel.
There are a number of total and partial defences for murder. The defence of self defence is an absolute
one and would result in Boris being absolved of all liability but this does not apply in this case.
However, there are partial defences in law which may reduce Boris liability from committing murder to
committing manslaughter. These three circumstances are Provocation, Diminished Responsibility and
acting in pursuance of a suicide pact. Obviously the third circumstance does not apply but the first two
should be considered.
The Defence of Provocation
The partial defence of Provocation only applies to the offence of murder and has the effect of reducing
liability from that of murder to manslaughter. Should Boris plead provocation, he would have to accept
all elements of murder put by the Prosecution including the intention to kill Raquel . It would be unlikely
that Boris would object to this however as evidence would suggest that he has already admitted to
killing Raquel. S3 Homicide Act 1957 governs the law as to provocation stating that in a murder case
there is evidence on which the jury can find that the person charged was provoked (whether by things
done or by things said or by both together) to lose his self-control, the question whether the
provocation was enough to make a reasonable man so as he did shall be left to be determined by the
jury; and in determining that question the jury shall take into account everything both done and
said Should Boris seek to rely on this partial defence the onus of proof would still rest with the
Prosecution and thus arguably, Boris would not have to prove that he lost self control. Rather, the

Prosecution would have to prove that he was in control and had not been provoked to the point in
which the reasonable man would have acted in the same manner. Whilst the onus would not be on
Boris, the evidence that he did in fact lose self-control, to such a degree, must satisfy the jury . Case
law has provided some clarification as to the defence of provocation. The case of R v Duffy was
referred to as still being good and current law by Lord Goddard C J in R v Whitfield: Provocation is
some act, or series of acts, donewhich would cause any reasonable person, and actually causes in
the accused, a sudden and temporary loss of self control, rendering the accused so subject to passion
as to make him or her for the moment, not master of his mind. Clearly the jury would not only have to
believe that a reasonable person would have lost self-control in his situation, but that at the time Boris
killed Raquel, he was literally out of his mind.
A further consideration needed to be taken by the jury when considering whether Boris was provoked
into killing Raquel, is the character and nature of Boris personally. There has been some legal
argument in recent years as to whether the reasonable man test should be so objective as to not take
any consideration as to the personality characteristics of the defendant. This was resolved in the case
of AG for Jersey v Holley in which it was held that whilst characteristics of a violent temperament or
sensitivity should be considered by the jury, there should be an objective standard of self control based
on the defendants age and sex which must be applied to all . Boris states that his motive for killing
Raquel is that her behaviour was particularly infuriating to him because women should know their
place. Boris being a misogynist does not equal the characteristic of seminal cases in which such
characteristics as being a glue-sniffer were a consideration . S3 of the Homicide Act 1957 does allow
the jury to consider the characteristics of the defendant as they must consider everything said and done
and thus, if a glue sniffer is taunted for his addiction, this should be considered as more of a
provocation that had those words been said to a non-addict. However, it is less clear in Boris case
whether Raquels words should have more of an effect on Boris than other people in his position. This
is partly because Raquels behaviour toward Boris had nothing to do with his being a misogynist.
Furthermore, though there is no case law on misogyny as a characteristic to be considered by a jury, it
is unlikely that this would fall under the same category of abnormal characteristics. Subsequently, it is
highly unlikely that Boris could have this characteristic considered within the issue of provocation.
The question of whether a reasonable person would have acted as Boris did is unlikely to result in a
favourable outcome for Boris. Raquels behaviour was not extreme enough to result in an ordinary
person losing all self control. Again, it would be fairly easy for a prosecutor to persuade the jury that
Boris, as a reasonable person, did not lose all self control. Perhaps more significantly there is little
evidence to suggest that Boris did personally lose all control at all. His reason for killing Raquel, whilst
being extreme, was rationally decided upon. By his own admission, Boris killed her because he found
her behaviour particularly annoying due to her being a woman. He makes no reference in his evidence
of losing control at all. Consequently provocation would not be proven and Boris would still be liable for
murder.
The Defence of Diminished Responsibility
Boris has claimed that he has difficulty controlling his temper due to an old war wound. Arguably, this
could be raised in relation to provocation in that it is an abnormal characteristic. However, this is a
weaker argument than referring to Boris misogyny as characteristics appear to only be applied in
cases in which the provoking act itself relates to the reason for losing self control. This is not the case
in relation to Boris.
The partial defences of Diminished Responsibility would have the same effect upon Boris liability as
Provocation and subsequently would reduce the offence from murder to manslaughter. S6 (b) of The
Criminal Procedure (Insanity) Act 1964 states Where on trial for murder the accused contendsthat at
that time he was suffering from such abnormality of mind as is specified in subsection (1) of section 2
of the Homicide Acts 1957 (Diminished Responsibility) Again, the onus of proof is upon the
prosecution to disprove that Boris was not suffering from such mental impairment but Boris evidence
must satisfy the jury that he was suffering from a high state of abnormality of mind. Should the

Prosecution accept Boris plea of guilty to Manslaughter on the grounds of Diminished Responsibility it
is likely that a hospital order would be made . There is no evidence as to any psychiatric report on
Boris state of mind but the evidence available does not indicate a wound which results in his mind
being impaired. Rather, it would appear that Boris has a short temper not an abnormality of mind and
subsequently, it is unlikely that Boris could successfully plead Diminished Responsibility.

Boris liability for the injuries sustained by Zhanna

With regard to Zhanna, the offence which Boris may be liable for is contingent upon the injuries
sustained. The most likely offence that Boris will be liable for in Zhannas case is Assault Occasioning
Actual Bodily Harm contrary to S47 of the Offences Against the Persons Act 1861. The Prosecution will
have to prove that an assault was carried out and that this caused the harm to Zhanna.
For Boris to be held liable for assault and the injuries sustained, he must have acted intentionally or
recklessly causing Zhanna to apprehend immediate unlawful violence . Though Boris had no hostile
intent in regard to Zhanna, he is still liable for the assault should it be determined he acted recklessly .
The evidence would suggest that indeed Boris may have been reckless in his behaviour. The test for
recklessness is laid down in R v Cunningham and holds that the defendant must have some foresight
of the victim apprehending violence. The evidence does not state where Zhanna was when Boris killed
Raquel or how the murder was committed and so definitive advice as to liability is not possible.
However, there is a clear implication that Boris killed Raquel in a work environment in which other
people were employed and thus, it is not unlikely that people would have been in the vicinity and may
have been endangered by his actions. The reasonable person would have some foresight into whether
other people may be affected by the violent act. Thus, it seems likely that Boris is liable for assaulting
Zhanna.
Boris Liability for Assault Occasioning Actual Bodily Harm
Having ascertained that Boris is liable for an assault against Zhanna, the extent of the injuries must
now be considered to determine the possible offences Boris may be charged with. It is highly unlikely
that Boris will be charged with mere Assault and Battery. This offence may be on the indictment in the
alternative but Battery often only applies in cases where unlawful touching has taken place but no
injuries sustained . As aforementioned, it is far more likely that Boris will be liable for Assault
Occasioning Actual Bodily Harm. The elements of this offence are the same as Assault but unlike
Battery, more serious harm has been inflicted on the victim. The Mens Rea of an offence contrary to
s47 is the same for an assault and subsequently, Boris can be found guilty for acting recklessly.
Zhanna has clearly suffered bodily harm and her injuries are not transient of trifling . It is likely that
severe bruising is serious enough to warrant an offence of Actual Bodily Harm.
The possible offence of Wounding Causing Grievous Bodily Harm contrary to s20 of the Offences
Against the Persons Act 1861 should also be considered. This would be the most serious offence Boris
could be liable for in relation to his assault of Zhanna. Arguably Zhannas severe bruising is serious
enough to constitute it as grievous under the Act as s20 does not require the injury to be permanent or
dangerous . The extent of the injury is contingent upon the effect of them on the particular victim and
so more information regarding Zhannas injuries would be needed before conclusively advising as to
Boris liability in this matter. Should the injury have caused serious complications such as muscle or
mobility damage, it may well be considered grievous. The evidence known so far would indicate that in
relation to Zhanna, Boris is likely to be liable for Assault Occasioning Actual Bodily Harm rather than a
more serious offence although the Prosecution may feel it appropriate to add Grievous Wounding to
the indictment with Actual Bodily Harm as the alternative.
Bibliography:
Cases

R v Martindale 50 Cr.App R 273.

R v Cox (A.M) [1995] 2 Cr.App.R 513
R v Whitfield 63 Cr.App.R 39 at 42
R v Duffy [1949] 1 All E.R. 932.
Attorney General for Jersey v Holley [2005] 2 A.C. 580, PC.
R v Mohammed (Faqir) [2005] 9 Archbold News 3 CA.
R v Morhall [1996] AC 90
Fagan v Metropolitan Police Commissioner [1969] 1 QB 439, 52 Cr.App.R 700.
R v Lamb [1967] 2 Q.B. Cr.App.R. 417
R v Williams (G) 78 Cr. App.R. 276 at 279 CA.
R v Donovan [1934] 2 K.B. 498 25 Cr. App.R. 1. CCA
R v Ashman (1858) 1 F & F. 88
R v Bollom, The Times Dec 15 2003 CA.
R v Cunningham [1957] 2 Q.B. 396. 41 Cr.App.R. 155 CCA

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