Absolute Criminal Law - PDF

Two distinctions: Result Offences v Conduct Offences [Result Offences:] the prosecution has to do more than prove conduct on the part of the defendant, they have to prove it brought about a particular result e.g murder. [Conduct Offences:] the prosecution has only to prove a specified act or condu...

Two distinctions: Result Offences v Conduct Offences [Result Offences:] the prosecution has to do more than prove conduct on the part of the defendant, they have to prove it brought about a particular result e.g murder. [Conduct Offences:] the prosecution has only to prove a specified act or conduct e.g perjury. R v White Defendant charged with murdering his mother. The prosecution was able to establish that he slipped potassium cyanide in her drink which she then consumed and died. The medical evidence suggested she died from heart failure [Factual Causation] It must be capable of being proven that there is a factual link between the act and the consequence. - \"But for\" test - Limited by concept of remoteness [Legal Causation] Causation does not have to occur from one source, the defendants act does not have to be the sole cause of the result. R v Smith -- doctor gave wrong medical help to a stabbed man and impeded his chance of recovery -- defendant not off the hook as law recognizes may be more than one cause of a result People (DPP) v Davis -- endorsed *de minimis* test People (DPP) v Joel -- argued de minimis test set the threshold too low Dunne v DPP -- SC seemed to accept either de minimis or substantial/operating cause tests People (DPP) v O'Loughlin -- CA accepted the Davis test (de minimis); Joel was confined to its own unusual facts [Legal Causation cont.] Must be more than a simple connection between overall act and result, connection between defendants' fault and the result R v Dalloway def driving a cart but not holding horses reins in hand Child killed by cart Guilty of manslaughter only if failure to hold reins contributed to child\'s death R v Hughes causing death while driving uninsured and without a license ***Novus Actus Interveniens (Intervening new Act)*** Breaking the chain of causation -- when somebody else did something that contributed to the result to such a degree that the defendant himself should not be held responsible for that result. [Independent v dependent acts:] R v Pagett -- Police tried to arrest violent man who then opened fire on them and used his pregnant girlfriend as a shield. Police returned fire and the girlfriend died by their shots. D was charged with her murder; he argued it was not his bullet. The police action broke the chain of causation. The court stated the police action was entirely dependent on his action. - Acts of God -- must be entirely unpredictable, an earthquake, hurricane, nobody has any control (rare) - Chain of causation -- intervention / Good Samaritan -- natural and probable consequences of the defendants' actions Natural and probable consequence = links in the chain - Courts tried to retreat from Jordan... - - [Victims Own Actions] - Attempts to **Escape:** Both these cases involve the victim being given a lift in a car and being subjected to a violent assault and in trying to escape the victims jumped from the moving cars and were killed. [Victims Independent Actions] - "Criminal law generally assumes the existence of free will" - "Deceased had choice whether or not to inject himself or not" [Victims Suicide -- Depends on the deceased state of mind] **Egg-Shell Skull Rule** R v Blaue -- Jehovah's witness stabbed; refused blood transfusion despite being told necessary to save her life; died - "Must take victim as they find them" [Causation in Non-Homicide Cases] -- no definitive guidance - "Causation is not a single, unvarying concept to be mechanically applied without regard to the context in which the question arises." - "What or who has caused a certain event to occur is essentially a practical question of fact which can best be answered by ordinary common sense rather than abstract metaphysical theory" **Actus Reus II -- Voluntary Conduct** Bratty v AG for Northern Ireland NB part of the Actus Reus, not mens Rea an involuntary act is not an act and therefore there is no Actus Reus **Automatism** Lord Denning definition in Bratty People (DPP) v FN Automatism = \"where the body acts while the mind does not direct its actions\" Result = complete acquittal unless foreseeable - R v T True source of automatism must be identified - R v T - Internal v External Factors - Distinction determines disposition **Internal Factors** Internal factors - disease of the mind = insanity R v Sullivan -- defendant had epilepsy; injured another person during seizure, no excuse for automatism \* R v Burgess -- defendant sleepwalking and attacked girlfriend; sleepwalking is an involuntary act caused by mental disorder did not absolve from liability R v Hennesy -- defendant hyperglycaemia from not taking insulin; committed theft in state of automatism; deemed mental disorder leading to criminal liability R v Quick -- defendant diabetic but not found guilty of assault; state of automatism due to hypoglycaemia due to taking insulin without eating; external factor failure to eat could be valid defence as not considered mental disorder **External Factors** External factors - factors outside the body = complete acquittal Rabey v R -- killed girlfriend during psychotic episode triggered by emotional shock Hill v Baxter -- dangerous driving causing accident; blamed fainting spell **Test for Non-Insane Automatism** Stone v R - \"automatism easily feigned and all knowledge of its occurrence rests with the accused\" **Test:** [AG\'s Reference No 2 1994:] \"the defense of automatism requires that there was total destruction of voluntary control on the defendants part. Impaired, reduced or partial control is not enough\" R v Coley -- defendant took cannabis; got up in night, dressed in dark clothes, broke into neighbor's house and stabbed victim several times with his hunting knife. Defendant was capable of engaging in "complex, organized behavior" -- no automatism O'Brien v Parker -- "Defense of automatism requires there must be a total destruction of voluntary control on the Defendant's part. Impaired, reduced or partial control is not sufficient to maintain the defense" **Exceptions to Voluntary Act Requirement** **Doctrine of prior fault** Kay v Butterworth -- defendant convicted of dangerous driving after crash while under influence of alcohol causing loss of control of vehicle. Drinking earlier (prior fault) R v McGhee -- death caused by dangerous driving, voluntary consumption of alcohol (prior fault). Warned against drinking while taking prescribed tranquillizer to help severe tinnitus **2. Intoxication/Duress** **3. State of Affairs Offences** R v Larsonneur -- defendant convicted of being "illegal alien" after deported from Ireland to UK despite having no control of her movements. **4. Status offences** Robinson v California -- SC struck down law in California criminalizing being addicted to narcotics; law punished persons status rather than conduct **Review:** Understand need for acts to be voluntary in order to punish Meaning of automatism and it\'s two kinds Difference between internal and external factors and consequences of this distinction Test for non-insane automatism Doctrine of prior fault **Actus Reus -- Prohibited Conduct** [Forms of conduct] - Acts - Words (eg perjury) - Possession (controlled drugs, weapons, pornography) - Omissions **Possession** People (DPP) v Conroy \"Possession offences base criminal definition on the nature of the article as contraband and establishing the accused\'s control over that article as the offence.\" ***Key is control*** Minister for Posts and Telegraphs v Campbell - "In my opinion a person cannot be said to keep or have possession of an article unless he has control of it either personally or by someone else. He cannot be said to have actual possession of it unless he personally can exercise physical control over it; and he cannot be said to have constructive possession of it unless it is in the actual possession of some other person over whom he has control so that it would be available to him if and when he wanted it" People (DPP) v Tanner Must have some degree of control... either personally through leaving it within a particular place or ordering it to be delivered somewhere or by someone or having the power to direct another person as to how the object should be managed or controlled on the accused's behalf" **Actual Possession** Typically, person deemed to have control of objects on his person, in his car and in his house - "While the presence of an article beside an accused person may not necessarily always give risk to an inference of possession, nevertheless this principle should not be used to distort reality." Temporal limitation -- may be imposed by statute (ie possession required at a particular time) [Refugee Act 1996] -- 9(8) Where an immigration officer or a member of An Garda with reasonable cause suspects than an asylum-seeker... is in possession of a forged identity papers...\[that person may be detained\] Even momentary possession is sufficient -- People (DPP) v Finnegan **Constructive Possession** People (DPP) v Rattigan -- defendant in possession of drugs in Walkinstown while a prisoner in Portlaoise Prison People (DPP) v Wharrie Common design as to import of 1554kg of cocaine - "It is, therefore, possible for two or more persons to engage in a common scheme or enterprise to possess an object, even where one does not have actual control of the item...It is necessary to show that the accused entered into a scheme with others, whereby he will possess through another the unlawful object." People (DPP) v Choung Vu -- must be able to prove the necessary tacit agreement; control and knowledge must be sufficient for a primary participant. Proof by inference - Foley **Mental element of Actus Reus** Campbell - defendant must be aware of existence of object R v Hehir (Irish) unaware of contents of money - "When Joseph replaced in his brethren's sacks, without their knowledge, the price of the corn they had bought, though they had apparent dominion and control over the sacks with their contents, they were no more, before discovering it, in possession of the money which Joseph had put in by act of trespass, then they would have been of dynamite secretly placed there" People (DPP) v Ebbs - "While knowledge is essential to establish possession the law draws a distinction between knowledge of the existence of the item in question and knowledge of its characteristics and qualities... It is clearly settled that knowledge of the former type is all that is required to establish possession. **This knowledge is an element of the actus reus of the offence, not the mens rea."** **Mens Rea of Possession** - Knowledge of the article? - Proof that defendant had possession of the container, was aware of that fact, and was aware that the container contained something (thought it was pornography) - People (DPP) v O'Shea -- suggesting some knowledge of contents required - People (DPP) v Healy (upholding McNamara) - People (DPP) v Tanner (willful closing of eyes) **Omissions** - Distinction can be blurred - Airedale NHS Trust v Bland (House of Lords ruled lawful to discontinue life-sustaining treatment for a patient in a persistent vegetative state) - Traditional common law approach **Duty to Act** - Statute - Contract - Common law **Common law duty to act** [Creation of danger] [Parents] [Spouses] [Assumption of risk] - Need for family relationship? - In legal sense there was no pre-existing duty of care between Mr Bowditch and the deceased -- appears duty was adopted as a result of his actions **Wider general duty to act** Kitty Genovese Case the \"37 witnesses\" Vermont \"Good Samaritan Statute\" - "A person who knows that another is exposed to grave physical harm shall, to the extent that the same can be rendered without danger or peril to himself or without interference with important duties owed to others, give reasonable assistance to the exposed person unless that assistance or care is being provided by others." **Mens Rea II - Intention** **Definition** People (DPP) v O'Loughlin - individual wants the consequences of his or her actions People (DPP) v FN - the purpose of the accused was to bring about the criminal wrong **Two forms of intention** Clifford v DPP - "A person may intend to blow up a plane in flight and so kill the passengers. That is **direct intention.** A person may claim to intend only to blow up a suitcase in a plane in flight but hope, that through some miracle, all the passengers in the plane will survive \[this is **oblique intention**\]... In no instance, whether of direct intention or oblique intention, is the inference that the accused intended either an act or its consequences automatically to be inferred from particular behaviour." [Direct intention] = little difficulty People (DPP) v FN -- Charleton J: [oblique intent] cases are "vanishingly rare" and oblique intent will rarely have to be mentioned - "In most cases intent is a simple concept. It should be kept as such. A criminal trial is not an intellectual event, such as a university seminar, but is, instead, the finding or rejection of fact by a jury." **Oblique Intention** - Oblique intention arises where the defendant's primary aim differs from the criminal outcome, but the outcome is a foreseeable and virtually certain result of their actions. At what point does oblique intention constitute intention for purposes of murder? Hyam v DPP -- **defendant poured petrol through letterbox followed by a lit newspaper in house of fiancée who had become involved with someone else**. Fiancée was able to get out however two daughters died. Defendant argued set fire to house merely to scare the new woman. Trial judge directed jury to convict D if prosecution were able to prove beyond a reasonable doubt the defendants intention to seriously harm or kill. If they were satisfied she knew it was a highly probably consequence that the fire would cause serious harm or death she shall be convicted, her motive of frightening would not matter. **Tests for Oblique Intention:** 1. **Virtual Certainty Test** R v Nedrick and R v Woollin - The jury must determine if death or serious injury was a virtual certainty of the defendant's actions, and if the defendant appreciated this fact. - **Woollin Refinement**: Jury must "find" the intention, not merely infer it. 2. **Evidence of Recklessness** People (DPP) v Douglas and Hayes - Evidence that a reasonable person would foresee death as a natural and probable consequence, coupled with the accused's reckless disregard for the outcome, may support an inference of intent. People (DPP) v Douglas and Hayes -- defendants convicted after direction to the jury that informed that they could return a verdict of shooting with an intent to commit murder where they found that the shots were fired with reckless disregards of the risk of killing, in the sense that it would be likely, though not necessarily desired, outcome of the shooting. - "Evidence that a reasonable man would have foreseen that the natural and probable consequence of the acts of the accused was to cause death and evidence of the fact that the accused was reckless as to whether his acts would cause death or not is evidence from which an inference of intent to cause death may or should be drawn, but the court must consider whether either or both of these facts do establish beyond a reasonable doubt an actual intention to cause death." R v Nedrick -- **Nedrick poured paraffin into a woman's letter box and started a fire, as a result of which one of her children died** -- "Virtual Certainty Test" -- applies wherever form of indirect intention is apparent and **charge is one of murder, or other very specific intent.** R v Woollin -- **defendant throwing 3 month old baby to the ground in frustration when it would not stop crying**, leading to the baby dying from a fractured skull. The court accepted that the defendant did not intend to cause death or harm to the child but that the defendant foresaw there was a risk of causing serious harm to the baby as a result of his actions. Murder conviction however overturned for manslaughter. The House of Lords confirmed that the 'virtual certainty' test introduced in Nedrick should instead be used when considering oblique intention. Leading precedent used when courts considering oblique intent - "The jury should be directed that they are not entitled to find the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case." [Primary difference between Nedrick and Woollin] -- 'to find' (in aforementioned paragraph) [Law Reform Commission], Report on Homicide: Murder and Involuntary Manslaughter - Ireland should adopt Woollin **Reforming Intention** Law Reform Commission, Report on Homicide: Murder and Involuntary Manslaughter (2008) "The Commission... believes that those who intentionally inflict serious injury on others cannot deny the latent knowledge they possess about the fragility of the human body. These defendants display a moral culpability very close to the culpability of intentional killers. There, they deserve to be guilty of murder if death results from the serious injuries they inflicted with intent." "The Commission wishes to ensure that the most heinous killings fall within the category of murder, whether they are committed intentionally or with reckless indifference to the value of human life. The Commission therefore remains of the view that the fault element for murder should be broadened to embrace reckless killing manifesting an extreme indifference to human life." Review: 1. The definition of intention 2. The meaning of direct intention 3. The meaning of oblique intention 4. Reform proposals **Double Effect** - Double effect allows an action intended to achieve a good outcome to be lawful, even if it results in a foreseeable but unintended harmful consequence, provided the harm is not the primary purpose - X has terminal cancer and is in great pain - Requires 200mg of morphine to dull the pain - 200mg = lethal dose for an average person Airedale NHS Trust v Bland - The patient's death is regarded as caused by the underlying condition, not the treatment. Re JJ -- young boy suffered catastrophic injuries in an accident including devastating brain injury and as a result developed ***dystonia***. Dystonic episodes last for hours and treatment administering pain relief by injection may have effect of repressing respiratory functions needing medical intervention therefore causing another dystonic episode. - Distinction upheld between assisted suicide and palliative care that incidentally hastens death. - Such care remains lawful under the prohibition of euthanasia. **Transferred Intent** - Transferred intent allows the mens rea (mental state) for one crime to transfer to another victim, provided the harm caused is within the same category as intended harm. - X tries to kill Y but accidentally kills Z People (DPP) v Ryan R v Latimer - Mens rea transferred because harm caused was of the same type (person-to-person). - Transferred malice applies beyond murder cases. Limitation: 1. **Category of Harm Must Match** R v Pembliton - Intent cannot transfer between different categories of harm. - Example: Intention to harm a person cannot transfer to property damage. 2. **Direct Transfers Only** AG's Ref No. 3 of 1994 - Intent does not transfer through a chain of events. - Example: Intent to harm a pregnant woman does not transfer to her unborn child or to harm caused indirectly to the child. Review: 1. Understand principle of double effect 2. The principle of transferred intent and its limitation **Mens Rea -- Subjectivity v Objectivity; Recklessness** **Two standards of culpability** [Subjective culpability] -- focuses on defendants' **state of mind** at the time of act Key Elements: - **Intention**: Acting with a purpose to bring about a specific result. - **Knowledge**: Awareness of circumstances or consequences. - **Belief**: Acting based on what the defendant believes to be true. - Example: defendant who intentionally sets fire to a building knowing people are inside demonstrates subjective culpability. [Objective culpability] -- focuses on what a reasonable person would have foreseen or done in same situation Key Elements: - **Negligence**: Failing to meet the standard of care expected of a reasonable person. - Assessment generally left to the jury, but can be decided by court alone Bita v DPP **Recklessness?** Recklessness involves consciously taking an unjustified risk or failing to foresee a risk a reasonable person would. **Key Cases in Development:** 1. **Cunningham** (*Subjective Recklessness*) 2. **Caldwell** (*Objective Recklessness*) 3. **Elliot v C** (*Criticism of Objective Recklessness*) 4. **R v G** (*Return to Subjective Recklessness*) **Key Principles** 1. Subjective Test: The accused must actually foresee the risk and proceed regardless. 2. Objective Test: Rarely applied; involves assessing whether the accused ought to have foreseen the risk (reasonable person standard). **3. Movement Toward Subjectivity in Ireland** **Irish Case Law on Recklessness**: 1. **People (DPP) v Murray** - **Principle**: Recklessness may be assessed either subjectively or objectively. However, courts in Ireland tend to favour **subjective recklessness**. 2. **People (DPP) v Cagney and McGrath** - **Principle**: Reckless endangerment requires **subjective awareness** of the risk. 3. **Clifford v DPP** - **Principle**: Offensive conduct intending to cause a breach of the peace must involve **subjective foresight** of the risk. 4. **People (DPP) v CO'R** (*Recklessness in Rape Cases*) - **Principle**: Recklessness involves considering the **possibility of non-consent** and proceeding regardless. 5. **People (DPP) v JK** - **Principle**: A failure to consider the risk of non-consent is **insufficient** for recklessness in rape cases. 6. **People (DPP) v CQ** - **Principle**: If recklessness does not arise on the evidence, no detailed explanation is needed in court. Review: 1. That there are two standards of culpability 2. Distinction between subjectivity and objectivity 3. The movement towards subjectivity in the definition of recklessness in England and Ireland **Proving mens Rea** [Objective mens rea] -- jury decides what a reasonable person would have intended or foreseen [Subjective mens rea] -- focuses on defendants actual state of mind, assessed through own testimony and surrounding evidence **Key Principle**: The jury must distinguish between what the defendant **actually thought** (subjective) and what they **ought to have foreseen** (objective). [A. Defendant's Testimony] - The defendant's own account can be considered but is not determinative R v G - A jury can choose not to accept their testimony if inconsistent with the evidence. [B. Inferential Proof from Objective Facts] - Mens rea can be inferred from **external evidence**, including: - The defendant's **actions, behaviour, or context**. - **Surrounding circumstances**, such as the nature of the victim's injuries or prior declarations of intent. **Key Cases**: 1. **DPP v. Jackson** - Intent is a **question of fact** for the jury. - Can be inferred from conduct, behaviour, and context. 2. **People (DPP) v. Eadon** - Intent may be inferred by examining: - Condition of the victim (injuries, defence wounds). - Defendant's words or admissions. - Logical analysis of surrounding circumstances. **The Dinner Party concept** The concept is an analogy to help explain process of inferring intent or recklessness: If someone **deliberately brings poison** to a dinner party and the host dies, the intent to harm can be inferred from: - The act of brining the poison - Statements made before or during the event - The absence of an alternative explanation for the act **Presumption of intention** - The presumption of intention arises when the **natural and probably consequences** of the accused's act suggest intent. - Presumption is based on **ordinary good sense** Hosegood v. Hosegood - Can be **rebutted** with credible evidence. DPP v. Jackson - Conduct can strongly support the presumption - Example: stabbing someone in the chest with a large knife almost certainly implies intent to cause serious harm. People (DPP) v. Benko - If a person shoots another in the chest with a shotgun, the natural presumption is intent to kill. - However, if credible evidence shows the accused believed the gun was not loaded, the presumption may be rebutted. - COA: confirmed presumption exists at common law and applies to a range of offences DPP v. Smith - If death was a natural/probable consequence, it must have been intended\ *Made no allowance for the defendant's state of mind* **[Ireland-Specific Framework]** CJA 1964, s.4(2) -- jury must consider whether death or serious harm was a **natural and probable consequence** of the accused's act - Prosecution must then prove that presumption of intent has not been rebutted. People (DPP) v. Hull -- two-step process 1. Was death or serious harm a natural and probable consequence? 2. Has the prosecution shown the presumption has not been rebutted? - Rebuttal may include credible evidence of mistake, lack of foresight or lack of awareness of crucial facts (eg believing gun not loaded) - Has prosecution satisfied the jury that the presumption has not been\ rebutted? **Necessity** Statutory Basis for the Defense [Criminal Damage Act 1991, s. 6] A person charged with an offence may claim **lawful excuse** if: 1. The act was committed **to protect oneself, another person, or property**, and 2. The act was **reasonable in the circumstances as the defendant believed them to be**. Key Commentary: **Necessity as a General Defense** [Arguments Against ] 1. **Risk of Anarchy**: 2. **Conflict with Positive Law**: [Arguments for ] 1. **Preventing Greater Harm**: - Example: Disarming someone to prevent a shooting. **Limitations on the Defense**: - The act must be **reasonable and no further than necessary** Pommel - Threat must be **urgent and immediate** Lord Advocate's Ref No. 1 of 2000 - No **reasonable alternative** to committing the act. **Necessity and Homicide** - Generally justified on the basis of lesser of two evils -- what about homicide? - Built around three cases: R v. Dudley and Stephens -- basic rule Re A (Conjoined Twins) -- tweaking of basic rule AG v. X -- application to Ireland **1. R v. Dudley and Stephens** - Facts: Sailors killed and ate a young boy to survive while stranded at sea. - Verdict: Convicted of murder. - **Key Principle**: Necessity cannot justify the intentional killing of an innocent person. - **Reasoning**: 1. **Duty to Die**: Some situations impose a moral duty to sacrifice oneself (e.g., soldiers or captains in shipwrecks). 2. **Christian Example**: Killing to save oneself contradicts moral principles. 3. **Practicalities**: Allowing such a defense would create chaos in deciding who lives or dies. **2. Re A (Conjoined Twins)** - Facts: Doctors sought permission to separate conjoined twins, Jodie and Mary. Surgery would save Jodie but kill Mary, who was entirely dependent on Jodie. - Verdict: Court allowed separation under the **doctrine of necessity**. - **Reasoning**: - Surgery aimed to save Jodie rather than to **kill Mary intentionally**. - Mary's death was inevitable without intervention. **Key Principle**: Necessity may justify actions resulting in death where the harm is unintended and prevents a greater evil. **3. Attorney General v. X** - Facts: A 14-year-old rape victim became pregnant and expressed suicidal ideation. The Irish Supreme Court upheld her right to an abortion, despite Article 40.3.3 of the Constitution protecting the unborn. - Verdict: A woman has the right to an abortion if there is a **real and substantial risk to her life**, including the risk of suicide. - **Reasoning**: - Suicide risk posed a threat to both the mother's and the unborn child's lives. - Taking the life of the unborn was deemed necessary to save the mother. **Significance**: Recognized necessity in the context of **preserving life**, including acknowledgment of mental health risks. **Procedural Issues** [Special Verdicts and Jury Nullification] - Special Verdict (*Blackstone*): - The jury states the facts and **defers legal questions** to the court. - Jury Nullification (*Black's Law Dictionary*): - A jury may **reject evidence or refuse to apply the law** when the result conflicts with its sense of justice or fairness. **Key Risks:** - Overuse of necessity may lead to inconsistent or unpredictable outcomes. - Courts aim to **limit jury discretion** in necessity cases to uphold legal certainty. \[Longer explanation of cases\] **[Dudley and Stephens ]** - **English court rejected the defense of necessity for homicide**, holding that necessity cannot justify the killing of an innocent person. - **Case set precedent in English common law, which influenced Irish law as well, reinforcing the principle that the defense of necessity does not excuse murder.** - Irish courts, similar to English courts, generally do not recognize necessity as a defense in cases of homicide, based on the view that the value of human life should not be balanced against the survival interests of others. The case is significant in illustrating the limitations of the necessity defense in cases involving the intentional killing of another person, highlighting the moral and legal principle that necessity cannot be used to justify murder in common law jurisdictions, including Ireland. **Verdict: Guilty of Murder** Reason 1 = Duty to Die "To preserve one\'s life is generally speaking a duty, but it may be **the plainest and the highest duty to sacrifice** it. War is full of instances in which it is a man's **duty** not to live, but **to die**. The duty, in case of shipwreck, of a captain to his crew, of the crew to the passengers, of soldiers to women and children, as in the noble case of the Birkenhead; these duties impose on men the **moral necessity**, not of the preservation, but of **the sacrifice of their lives for others**, from which in no country, least of all, it is to be hoped, in England, will men ever shrink, as indeed they have not shrunk." -- Lord Chief Justice Coleridge Reason 2 = Christian Example "It is enough in a **Christian country** to remind ourselves of the **Great Example whom we profess to follow**... We are often compelled to set up standards we cannot reach ourselves, and to **lay down rules which we could not ourselves satisfy."** Reason 3 = Practicalities "It is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be the judge of this sort of necessity. By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect, or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another's life to save his own. Was it more necessary to kill him than one of the grown men? The answer must be 'No'." **[Re A (Conjoined Twins)]** (Mary and Jodie) In this sense, Re A adapted the strict rule in Dudley and Stephens, permitting necessity as a defense where the action, though resulting in death, aimed to prevent a greater inevitable harm, and was not solely motivated by self-preservation. **[Verdict: Separate]** "\[T\]he Court cannot fully honor its separate duty to each child to do what is best for that child. The Court is placed in **an impossible position**.... The sad fact is that \[Mary\] lives on borrowed time, all of it borrowed from her sister.... She is **designated for death**.... Though Mary has a right to life, **she has little right to be alive**. She is alive because, to put it bluntly but nonetheless accurately, she sucks the lifeblood of Jodie, and **her parasitic living** will soon be the cause of Jodie ceasing to live. **Jodie is entitled to protest that Mary is killing her**. I see no difference in essence between \[a\] resort to self-defence and the doctors removing the threat of fatal harm to her presented by Mary's draining her life blood." -- Lord Justice Ward **[Attorney General v. X ]** Case - X is a passenger on a transatlantic aircraft, which crashes at Shannon and bursts into flames - X moves to the nearest exit where he finds Y who is standing in the open doorway, frozen in fear - The flames in the cabin are getting closer, so X forcefully pulls Y away from the exit; Y stumbles and bangs his head, stunning him - X jumps clear of the burning aircraft and is saved - It takes nearly 5 minutes for the cabin to be consumed by the fire - Y is killed in the fire; medical evidence shows that he died where he had fallen - On these facts... CHAPTER 22 Charleton & Dermott's **Duress** **General Principles**\ Liberal criminal law assumes free will, linking punishment to a deliberate choice to break the law. But what if the defendant had no choice, acting under compulsion from: - Threats by another person (*per minas*) - Circumstances beyond their control Courts tend to view duress of circumstances and necessity as **overlapping** defenses R v. Shayler Duress typically functions as an *excuse defense* rather than a justification. **Tests for Duress** **Ireland: Gleeson -- Current Test** 1. **Reasonable Belief** - The accused must *reasonably believe* the threat will be carried out unless the offence is committed. 2. **No Reasonable Alternatives** - No lawful way to render the threat ineffective. 3. **Proportional Response** - The accused's actions must reasonably match the seriousness of the threat. 4. **Overborne Will** - Duress applies where coercion overcomes the resistance of a person of ordinary firmness, factoring in age, sex, and other permanent characteristics. **England: R v. Howe** 1. Defendant reasonably feared death or serious harm. 2. A person of reasonable firmness sharing the defendant's characteristics would have acted similarly. **Comparisons** - Both Irish and English tests are now mixed, combining subjective elements (individual characteristics) with an objective standard (reasonable person test). - Characteristics considered: Age, gender, pregnancy, disability, and mental illness R v. Bowen; Gleeson **Nature of the Threat** 1. **Must Be Credible** - Irish law: Threat must be believed reasonably Gleeson - England: Honest and reasonable belief in threat is enough R v. Hasan; R v. Safi 2. **Imminence** - Threat must be imminent but not necessarily immediate: - R v. Hudson and Taylor: Threat must operate on the defendant's mind at the time of the offence. - Gleeson: Only threats capable of execution shortly after the offence qualify. 3. **Target of Threat** - Ireland: Threat can target the accused, their family, someone close to them, or someone they feel responsible for Gleeson - England: Broadens to include those whom the defendant has responsibility for or is made responsible for by circumstances R v. Shayler 4. **Prohibited Threats** - Duress does not apply to self-induced threats (e.g., joining criminal gangs). - R v. Fitzpatrick: IRA membership. - R v. Hasan: Joining a gang reasonably foresees risk of compulsion. **Limitations of the Defense** 1. **No Escape Options** 2. **No Application to Murder or Attempted Murder** **Proposals for Reform** The [Law Reform Commission (2009)] proposed codification: 1. Defense should excuse criminal acts committed under imminent threats of death or serious harm, as long as: - The accused acted reasonably under the circumstances. - There were no reasonable alternatives. 2. Threats must involve death or serious harm to *any person*, not just those related to the defendant. 3. Voluntary association with known risks of duress should disqualify the defense. 4. Defense should remain inapplicable to murder, attempted murder, and treason. **Intoxication and Criminal Liability** **Definition and Scope** - Intoxication involves more than just being drunk; it implies being unaware of one's actions. - Includes any intoxicant, as seen in **R v. Lipman**: Defendant killed while under the influence of LSD, believing he was fighting snakes. Voluntary intoxication negated this as a defense. - Irish legislative definitions: - **Criminal Law (Insanity) Act 2006**, s.1 - **Criminal Justice (Public Order) Act 1994**, s.4(4) - **Road Traffic Act 2010**, s.3 **Legal Conflict** - **Actus reus** and **mens rea** must coexist for criminal liability. - Social policy opposes allowing individuals to benefit from voluntary intoxication. **Voluntary Intoxication: The Traditional View** - Historically, common law is unsympathetic to voluntary intoxication defenses. - Specific intent crimes: Drunkenness might negate intent. - Rejected for general applicability. **Majewski: Key Distinctions** - Crimes of **specific intent**: Defense available if intoxication negates intent. - Crimes of **basic intent**: Intoxication irrelevant. **Definitions**: - **Basic intent** = Recklessness. - **Specific intent** = Mens rea extends beyond actus reus. Examples: - Basic intent: Manslaughter, assault. - Specific intent: Murder, burglary. Specific Intent Basic Intent ----------------- -------------------- Murder Manslaughter Burglary Rape Theft Sexual Assault (?) Criminal Damage Assault Handling **Issues with Majewski** 1. **Logical flaws**: - Recklessness relates to drinking, not the subsequent criminal act **Daviault v. R**, Canada 2. **Conflict with mens rea principle**: - Drinking itself substitutes for mental state required for criminal acts. 3. **Policy considerations**: - Some argue that intoxication should focus on the criminal effects, not drinking itself. **Case-by-Case Application: Ireland** **Dutch Courage Rule** **Involuntary Intoxication** **Reform and Criticism** - **Law Reform Commission Report (LRC 51-1995)**: - Illogical distinction between basic and specific intent crimes. - Suggested intoxication should never be a defense but factored into sentencing. In summary, voluntary intoxication is generally not a defense, except in specific intent crimes where it negates the required mens rea. Involuntary intoxication might provide a defense but depends on the circumstances and impact on mens rea. **General Approach to Answering Duty of Care Questions** 1. **Identify the Duty**: - Does the accused owe a duty of care? - Pre-existing relationship (parent/child, employer/employee, carer/vulnerable adult). - Voluntary assumption of duty. - Statutory obligation. 2. **Breach of Duty**: - Did the accused fail to meet the standard of care expected? 3. **Causation**: - **Factual Causation**: Did the accused's failure directly cause the harm? - **Legal Causation**: Was the harm a foreseeable result of the breach? 4. **Mens Rea**: - Did the accused act with gross negligence or recklessness? 5. **Outcome**: - If all elements are satisfied, the accused may face liability for gross negligence manslaughter or other criminal charges. **General Approach to Answering Causation Questions** 1. **Factual Causation**: - Apply the **but-for test**: - Did the defendant's act or omission set in motion the chain of events leading to the harm? 2. **Legal Causation**: - Analyze any potential **novus actus interveniens**: - Acts of a third party (e.g., medical negligence, reckless driving). - Acts of the victim (e.g., running into traffic, self-inflicted harm). - Natural events (e.g., unexpected storm). - Consider whether the harm was **reasonably foreseeable** and **not too remote**. 3. **Special Rules**: - **Thin Skull Rule**: Take the victim as you find them, regardless of vulnerabilities. - **Omissions**: Liability arises only if there is a duty to act. 4. **Conclusion**: - Assess whether the chain of causation remains intact or if an intervening act has absolved the defendant of liability. **Determine the Elements of Murder** Under **Irish law**, the basic elements of **murder** are as follows: 1. **Unlawful killing**: The defendant caused the death of the victim. 2. **Malice aforethought (mens rea)**: The defendant acted with either **intent** to kill or **intent to cause serious harm**. It is essential to assess whether both elements are present based on the facts provided. **Unlawful Killing (Actus Reus):** - **Causation**: Establish whether the defendant's actions caused the victim\'s death. - **Factual causation**: Apply the **but-for** test (e.g., \"but for the defendant\'s actions, would the victim have died?\"). - **Legal causation**: Consider whether any intervening factors (e.g., medical negligence, victim's actions) broke the chain of causation. - **Unlawfulness**: Killing is unlawful unless justified (e.g., self-defence or necessity). If no justification exists, the killing is unlawful. **Malice Aforethought (Mens Rea):** - The mental state of the defendant must be considered. Malice aforethought can be shown in two ways: 1. **Intent to kill**. 2. **Intent to cause serious harm** (as in cases of reckless disregard for life, such as a **serious bodily injury killing**). To convict the defendant of **murder**, you need to assess whether the **mens rea** was proven (i.e., did the defendant have the intention to kill or cause serious harm?).