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Examining the Clarity of Theft

  • 15 Pages
  • Published On: 30-11-2023
Q1 - Theft
1. Introduction

In order for a person to be guilty of theft, there must be actus reus and mens rea. For proving mens rea, there must be dishonesty and permanently depriving another person’s property. For proving actus reus, there must be appropriation, of property, and property belonging to other.

The Theft Act 1968 (TA 1968), s1(1) provides that a person will be guilty of the offence of theft if he dishonestly appropriates another’s property with the intent to permanently deprive the other person of their property.

In Lawrence v Metropolitan Police Commissioner, the court held that the five elements of ‘dishonesty’, ‘permanently depriving the other of property’, ‘appropriation’, ‘of property’, and ‘property belonging to other’ must be established to find a person guilty of theft.

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This essay will critically explore whether TA 1968 provides clarity on the concept and application of theft. This essay proposes that TA 1968 does not to a certain extent when its sections 1 – 6 are reviewed.

2. Proving actual belief

The element of dishonesty is the key requirement to establish theft. However, this itself is not defined by the TA 1968.

TA 1968, s2(1)(a) provides that a person will be guilty of theft if it is establish that she was dishonest and she intended to permanently deprive the other person of his property. It further provides that such appropriation will not be dishonest if she had the belief that she had legal right to do so.

Section 2(1)(b) provides that she was not dishonest if she appropriated the property in the belief that she would have the other person’s consent if that person knew of the appropriation and the circumstances surrounding it.

In Robinson, such appropriation involves a mistake of law. The liability of the person will depend on whether or not actual belief was present. In Feely, the court held that current standards of ordinary decent people will be applied to determine whether or not an act is dishonest.

This is where the flaw in TA 1968 comes in. The problem is that the jury or the fact-finders are given the responsibilities. Common standards of honesty are assumed to be in existence and that the fact-finders are expected to know and apply them. This may not lead to an uniform or consistent standard decision as the factor finders or jury or even the magistrates, who have a wide discretion in his area, may be from different background of age, class, culture, etc. Subject to this circumstances, the jury or the court may find an act reprehensible or dishonest, or there may be different views.

  1. Michael Allen, Textbook on Criminal Law (Oxford University Press 2013) 443.
  2. Lawrence v Metropolitan Police Commissioner [1972] AC 626.
  3. Ibid.
  4. Robinson [1977] Crim LR 173.
  5. Ibid.
  6. Feely [1973] QB 530.

The potential problem in interpretation of dishonesty stems from the lack of legislative clarity. The potential outcome is inconsistent application. For example, Feely laid down a the simple test to consider the variety of circumstance while determining dishonesty, including the period for which it is taken; or defendant’s likelihood of payment, or the amount of money involved.

The Court of Appeal in R v Ghosh laid down the two part test of dishonesty. The first test is whether or not the defendant was dishonest by the ordinary standards of reasonable honest people. Secondly, if it was so, whether or not the defendant realised that his conduct was dishonest by those standards. The Ghosh test requires a combination of objective and subjective standard. The subjective standard is an addition to the test laid down by Filey.

The TA 1968 gives a partial definition of dishonesty. Courts generally gives a generally definition of the concept of dishonesty and leaves the discretion to the jury to determine the facts of a case in context of the definition or provisions provided under Section 2(1). The issues of leaving the determination to the fact finders of jury are highlighted earlier. Those issues are not the concern here. The concern here is the courts exercise the discretion to determination of dishonesty. Inconsistency in determining dishonesty could be seen when the courts exercise the discretion in the case of Ivey v Genting Casinos. The Supreme Court here took an approach contrary to the practice of leaving the discretion to the jury. Further, the Supreme Court removed the subjective question. It ruled that the jury or the magistrates must first determine the actual state of mind of the defendant and determine whether or not there was dishonesty based on the objective test of ordinary decent people.

The tests adopted in Feely, Ghosh and Ivey demonstrate that that the jury possesses a wide discretion along with the alongside judges to interpret. The concept of dishonesty should have been instead defined in clearer terms by the Parliament. As seen earlier, the different background of the jury or the magistrates will impact the definition of common standard application to the concept. Further, determination by a jury now may not be applicable to a future determination by a new jury. This will maintain the lack of clarity and inconsistent of the definition and interpretation of the concept and the applicable legal provisions under TA 1968.

  1. Michael Allen and Ian Edwards, Criminal Law (Oxford University Press 2019) 534.
  2. Sinclair v Neighbour [1966] 2 QB 279.
  3. Michael Allen and Ian Edwards, Criminal Law (Oxford University Press 2019) 534.
  4. Ibid.
  5. R v Ghosh [1982] 2All ER 689.
  6. Roger Williams, Citizens' Experiences of Mistreatment and Injustice in the Early Stages of Law Enforcement (Waterside Press 2015) 28.
  7. Marshall Cavendish Corporation, Trusts Law (Taylor & Francis Group 2006) 1927.
  8. Michael Allen and Ian Edwards, Criminal Law (Oxford University Press2019) 533.
  9. Ivey v Genting Casinos [2017] UKSC 67.
  10. Michael Allen and Ian Edwards, Criminal Law (Oxford University Press2019) 533.
  11. Ivey v Genting Casinos [2017] UKSC 67, at 74.

The most recent case of in R v Barton and another, the Court of Appeal overruled Ghosh. The Court of Appeal upheld Ivey and ruled that principles regarding dishonesty in all criminal cases are that established in Ivey. This means that the subjective element will no longer apply, which was otherwise applied for more than 35 years.

The issue still remain though of whose standards would be followed, whether that of the jury, the parties, or the State. As also observed earlier, this has the potential of developing or applying different individual standards in relevant cases.

3. Appropriation and establishing intention

TA 1968, s3(1) provides that any assumption by D of the rights of P amounts to an appropriation. Appropriation also includes where D comes by the property, whether innocently or not, without stealing it and later assumption by D of a right to the property by keeping or dealing with the property as P.

The definition of appropriation is loosely done. The issue of inconsistency related to the definition of dishonesty could be found here too.

In R v Hinks, Lord Steyn ruled in favour of giving a broader meaning to appropriation. Lord Steyn stated that if there was a narrower definition, it would place dishonest persons from the reach of the criminal law to be found guilty of theft. A narrower definition would restrict the scope of application of the law of theft. It would complicate its fair and effective prosecution. The position is based on his view that mens rea is an adequate protection against injustice.

The view of Lord Steyn This position does not cover the situation where the defendant was not generally aware of the obligation, which is towards the way in which a property of another is to be dealt with situation, but not the legal basis of such obligation. The view of Lord Steyn is focussed in mens rea and not much weigh was given to actus reus. However, it is a question of law, not a question of fact. The general principle is that mistake of law cannot be excuse. However, the question of determining whether or not there was a mistake of law is left to the jury. Here the issues regarding discretion of the jury in this regard are discussed earlier and are applicable here too.

The definition of permanent deprivation could be seen in Section 6 of TA 1968. According to section 6(1), a person will be permanently depriving somebody of his property, if she intended to treat the property as her own and to dispose of regardless of the other person’s right. The section further states that she would be held treating the property as her own if she borrows or lends the property for a period and considering the circumstances making her conduct an outright taking or disposal.

  1. R v Barton and another [2020] EWCA CRIM 575.
  2. Russell Heaton and Claire de Than, Criminal Law (Oxford University Press 2011) 358.
  3. R v Hinks [2000] UKHL 53; [2001] 2 AC 241.
  4. Ibid, at 252–3.
  5. Alex Steel, ‘Taking Possession: The Defining Element of Theft?’ (2008) 32(3) Melbourne University Law Review 1030.

The language in section 6 is criticised to be unclear. The applicable interpretation indicates that there is intent to permanently deprive if the defendant intended to treat property as her own to dispose of, irrespective of the other person’s rights in the property. The concern is how to determine the degree that defines the defendant’s intent. However, the applicable interpretation may just require a degree of interference instead of a wholesale rejection of the other’s.

The definition of property in Section 4 may seem to be limited in approach too in regard to intangible property. For example, in Oxford v Moss that concerns theft of intangible property and information, the court held that information is not intangible property and is incapable of being stolen within TA 1968.

4. Conclusion

To conclude, the challenge remains with the discretion left to the jury to determine dishonest, which determination falls within determining the law and not the fact.

There may remain always a potential issue of developing individual standards to conform to the standards of ordinary decent people, as laid out in Ivey. However, the circumstances of the each case will be determined to apply the appropriate standard of ordinary decent people.

  1. Alex Steel, ‘Permanent Borrowing and Lending: A New View of Section 6 Theft Act 1968’ (2008) 17 Nottingham Law Journal 3.
  2. R v Fernandes [1996] 1 Cr App R 175, 188.
  3. Alex Steel, ‘Permanent Borrowing and Lending: A New View of Section 6 Theft Act 1968’ (2008) 17 Nottingham Law Journal 3.
  4. Oxford v Moss (1979) 68 Cr App Rep 183.
Question 5
1. Introduction

Manslaughter means killing with the intention of murder, but partial defences apply. This is voluntary manslaughter.

Manslaughter also constitutes grossly negligent conduct that gives rise to risk of death and killing occurs. This constitutes gross negligence manslaughter.

Manslaughter also constitutes unlawful acts that involve dangers of some harm resulting to death. This constitutes unlawful and dangerous act manslaughter.

Gross negligence manslaughter and unlawful and dangerous act manslaughter are involuntary manslaughters.

The current issue is to determine whether or not the conduct of Gabe constitutes grossly negligent conduct and unlawful and dangerous act manslaughter and the liabilities of Gabe towards deaths of Harper and Inez.

2. Grossly negligent manslaughter

Grossly negligent manslaughter is a common law offence that is indictable only.

The leading case of R v Adomako has laid down the components requisite for grossly negligent manslaughter. It was held that if the death is caused by the defendant’s grossly negligent act or omission, she will be liable for grossly negligent manslaughter.

Lord Mackay of Clashfern LC stipulated the ingredients of the offence. He cited that the law upheld in cases of Bateman and Andrews v DPP provides a satisfactory and proper basis for describing involuntary manslaughter. The ordinary negligence principles will apply to determine whether or not the defendant breached the duty of care towards the victims. If affirmative, it needs to be determined of whether or not the breach caused the deaths. If affirmative, the jury must determine whether or not the breach is gross negligence and a crime. Thus, for grossly negligent manslaughter, there must be a duty of care, a gross negligent act, breach of the duty due to such act, and death due to such act.

  1. The Crown Prosecution Service, ‘Gross Negligence Manslaughter’ (2019) accessed on 22 January 2021 .
  2. Ibid.
  3. Ibid.
  4. Ibid.
  5. Ibid.
  6. R v Adomako [1994] UKHL 6.
  7. Ibid.
  8. Ibid, at 187.
  9. Bateman (1925) 19 Cr. App. R. 8.
  10. Andrews v DPP [1937] AC 576.
  11. R v Adomako [1994] UKHL 6, at 187.

The crucial ingredients of gross negligence manslaughter are the breach of an already existing duty of care. It was reasonably foreseeable that such breach will cause serious and obvious risk of death and so does. The defendant’s conduct was ‘so bad’ in all the circumstances that it would constitute a criminal act or omission.

In R v Rose, it was ruled that a mere possibility of a recognisable serious risk cannot be treated that same as a recognisable risk of death. Something that is life-threatening cannot be the same as an obvious risk of death, which is a present risk, clear and unambiguous. Obvious risk cannot be that risk that may become apparent on further investigation. The question is whether the defendant had knowledge of the serious and obvious risk of death at the time of the breach of duty.

2.1 Duty of care

The case of Caparo Industries PLC v Dickman provides the three tests for determining existence of the duty of care. If the damage was foreseeable and the claimant or the victim was in an appropriate proximity to the defendant, then it would be fair and just to impose upon the defendant a liability.

A person with duty of care must act in the same manner as expected from a reasonable person.

The law recognises that a duty of care will exist in certain situation such as involving employer-employee relationship and health care professionals-patients relationships. As such, the test of Caparo may not arise at all.

If the act of the defendant did is contrary to actions that are considered appropriate by a responsible medical or electrical opinion, as relevant, then her conduct will be considered negligent.

In the case of Bolam v Friern Hospital Management Committee, it was held that a doctor will not be guilty of negligence if she acted in accordance with an accepted practice considered proper by a responsible medical body skilled in that particular field.

2.2 Breach causing death

Lord Woolf MR in R v HM Coroner for Inner London, ex parte Douglas-Williams, stated that the negligent act must cause the death. There must be a link of causation link between the negligent act and the death. It is sufficient if the breach of the duty significantly contributed to the death. The breach itself may not be the sole or the main cause of death.

  1. R v Rudling [2016] EWCA Crim 74, at 18
  2. R v Rose [2017] EWCA Crim 1168.
  3. The Crown Prosecution Service, ‘Gross Negligence Manslaughter’ (2019) accessed on 22 January 2021 .
  4. Caparo Industries PLC v Dickman [1990] 2 AC 605.
  5. The Crown Prosecution Service, ‘Gross Negligence Manslaughter’ (2019) accessed on 22 January 2021 .
  6. Ibid.
  7. Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.
  8. R v HM Coroner for Inner London, ex parte Douglas-Williams[1998] 1 All ER 344.

The de minimis rule provides that there is no causation if it is established that that “had the defendant not been negligent, the deceased would only have survived hours or days longer, in circumstances where the intervening life would have been of no real quality”.

If after a certain time, the victim irrespective of the intervention was more likely than not to die, then there is no causation even if there is failure to act beyond the point where the victim’s condition became irreversible.

2.3 Degree of gross

The degree of gross is defined in Rudling. It will be gross negligent act if the defendant’s conduct was ‘so bad’ in all the circumstances that it would constitute a criminal act or omission.

Thus, in all circumstances a reasonably prudent person situated in the defendant's position would have foreseen from the defendant's act a serious and obvious risk of death. Further, the breach of duty was reprehensible and below the standards as expected from a person in defendant's position with her qualifications, responsibilities and experience that it would amounted to a crime.

3. Constructive manslaughter

Constructive manslaughter is also termed unlawful and dangerous act manslaughter. Being an involuntary manslaughter, there is no mens rea of murder.

3.1 Unlawful and dangerous act

Elements of unlawful act must be present. In R v Fenton, where the defendant threw stones down a mine shaft, which caused the collapse of the scaffolding resulted to death of some miners, it was held that such tort of trespass constitute an unlawful act.

Such unlawful act may not direct at the victims where the defendant unlawful dangerous act of waving a razor to frighten his mistress's lover ended up getting his mistress killed, or against a person where the defendant on order to get re-housed sets his house on fire to make it look as if it was petrol bombed ended up getting his wife, son and son's girlfriend killed.

  1. R v HM Coroner for Inner London, ex parte Douglas-Williams[1998] 1 All ER 344
  2. R v Cheshire [1991] 1 WLR 844 at 848B-C 851H-852B.
  3. Ibid.
  4. R v Sinclair and others [1998] EWCA Crim 2590.
  5. R v Misra [2004] EWCA Crim 237.
  6. R v Rudling [2016] EWCA Crim 74, at 18
  7. The Crown Prosecution Service, ‘Gross Negligence Manslaughter’ (2019) accessed on 22 January 2021 .
  8. Ibid.
  9. R v Fenton (1830) 1 Lew CC 179.
  10. R v Lamb [1967] 2 QB 981.
  11. R v Goodfellow (1986) 83 Cr App R 23.

The unlawful act must be dangerous such as a sober and reasonable person would inevitably recognise as would subject the victim to the risk of some harm though not serious.

3.2 Causation

As noted in section 2.2., Lord Woolf MR in R v HM Coroner for Inner London, ex parte Douglas-Williams ruled that the unlawful act must have caused the death. Such act was a substantial and not de minimis cause of the death. The normal causation rules apply. The unlawful dangerous act must be the factual and legal cause of death. The defendant must have intended to commit the unlawful dangerous act.

4. Issues

Gabe is the employer. As such, he owes a duty of care towards the employees, including Harper and Inez. As such, he should have acted in like a reasonable person and must have avoided the act of setting the bar on fire. His act was negligent as it was contrary to actions considered appropriate by a responsible opinion.

4.1 In case of Harper

Gabe’s negligent act is linked to the death of Harper. His negligent act has caused the death. It was a substantial cause. As per Rudling, his act was grossly negligent act in all the circumstances. It is a criminal act. However, was there an obvious risk of death when Gabe set the bar on fire?

The facts show that he did not know that Harper and Inez were sleeping in the storeroom. As such, it may not be considered that a serious and obvious risk of death due to his breach of duty of care would be reasonably foreseeable. Based on this consideration, he may not be liable for grossly negligent conduct.

The unlawful act was dangerous. Setting the bar on fire was not aimed directly at Haper or Inez or to anybody. However, it was dangerous according to the standard of a sober and reasonable person. Any person exposed to such act would be at risk of some harm. The act was a substantial act. It cannot be considered de minimis. As such, Gabe will be liable for constructive manslaughter.

4.2 In case of Inez

Inez’s death was not caused by the unlawful act of Gabe. He suffered minor injuries. His death was caused by the failure of Dr Justo to notice the disconnected oxygen tube from the ventilator.

Dr. Justo’s act will be treated contrary to actions considered appropriate by a responsible medical opinion. As checking oxygen supply is a normal standard practice before a surgery. His conduct will be considered negligent.

  1. R v Church [1965] 2 WLR 1220.
  2. R v HM Coroner for Inner London, ex parte Douglas-Williams[1998] 1 All ER 344
  3. R v Goodfellow (1986) 83 Cr App R 23.
5. Conclusion

To conclude, causation is a crucial element to prove manslaughter. Without the link between the death and the negligent or unlawful act of the defendant, manslaughter cannot be proved. Factors such as the degree of gross, danger or risk (obvious or not) will help the courts and the jury determine the liability of the defendants.

Question 6

The current issue is to determine the criminal liability of Kora for killing Leon and Mia or shooting Nancy.

1. What is murder?

A murder is committed where a defendant who is of sound mind and discretion unlawfully kills the victim with the intent to kill the victim or cause her grievous bodily harm.

There is intention to murder if the defendant felt sure that death of or serious bodily harm to the victim is a virtual certainty due to her actions and that she appreciated this was the case. Killing will be justified if it is in self defence; for prevention of crime; or in necessity.

There must be actus reus and mens rea for murder. There is actus reus when the defendant caused the death of the victim. Such act may not be the sole cause. It must have substantially caused the death. There is mens rea where she intended to kill or cause the victim grievous bodily harm.

Intention can be direct intention or oblique intension. The case of R v Moloney, concern the issue of direct intention and it was to determine whether or not mens rea requires direct intent or whether or not foresight of a serious likelihood of harm is sufficient. If the purpose of the defendant’s conduct was other than serious bodily harm or death, then intent may be inferred if the consequence of the conduct constitutes natural consequence and he foresaw the natural consequence.

The case of R v Woollin, concerned oblique intention where it was held that there was a material misdirection that made the defendant liable for manslaughter. Necessary intention may be inferred in case death or serious bodily harm was a virtual certainty due to the defendant’s conduct and he appreciated such was the case.

The prosecution must proof a causal link between the act and the death. However, an intervening act can break this ‘chain of causation’. The act must be sole cause of the death reliving the defendant of liability.

2. Defences

The defendant has three defences against murder. They are loss of control, diminished responsibility and suicide pact. In one of the defences is proof, it will be manslaughter. If the defendant has the intent to kill or cause grievous bodily harm, she will be liable for voluntary manslaughter.

  1. The Crown Prosecution Service, ‘Homicide: Murder and Manslaughter’ (2019) accessed 22 January 2021 .
  2. R v Matthews (Darren John) [2003] EWCA Crim 192.
  3. Claire de Than and Russell Heaton, Criminal Law (Oxford University Press 2013) 154.
  4. Nicola Monaghan, Criminal Law (Oxford University Press 2016) 106.
  5. R v HM Coroner for Inner London ex p Douglas-Williams [1999] 1 All ER 344..
  6. Nicola Monaghan, Criminal Law (Oxford University Press 2016) 106.
  7. R v Moloney [1985] 1 AC 905.
  8. R v Woollin [1998] 4 All ER 103.
  9. The Crown Prosecution Service, ‘Homicide: Murder and Manslaughter’ (2019) accessed 22 January 2021 .
  10. R v Wallace (Berlinah) [2018] EWCA Crim 690.

If mens rea cannot be established, there will be a charge of manslaughter out of an unlawful act. The Criminal Law Act 1967, s6 provides that if the defendant is found not guilty on an indictment for murder, she may be found guilty of manslaughter. In R v HM Coroner for Inner London ex p Douglas-Williams, it was ruled that there must be sufficient evidence for a partial defence.

2.1 Loss of control

The mental abnormality signifies the ability of the defendant to exercise control or will power over her physical acts in accordance with the rational judgement. Section 2(1B) provides that mental abnormality supports an explanation of act of the defendant that caused or significantly contributed to her conduct.

Section 54(1)(a)(b) and (c) of the Coroners and Justice Act 2009 provide the three components of this defence. In Dawes; Hatter; Bowyer, courts should consider whether or not there are sufficient evidence in respect of all the three components, which must be separately as well as sequentially considered. The jury can determine the issue if any one of the components is missing.

The first component is sufficient evidence proving the killing is a result from loss of control. If this cannot be proof, the two remaining components do not need to be considered.

The Coroners and Justice Act 2009 (CJA 2009), s 54(2) provides that the loss of control does not need to be sudden. However, the longer the delay is the stronger is the evidence to proof deliberation. In such scenario, longer delay may negate the defence of provocation.

The second component is the presence of a qualifying trigger. One of the qualifying trigger is provided by Section 55(3), which provides that there is loss of self-control arising from defendant’s fear of serious violence from the victim against her.

The third component is to determine whether or not an individual of the defendant’s sex and age with a normal degree of tolerance and self-restraint and in the particular circumstances to which the she was exposed would have reacted in the same or similar way as the defendant. This is reflected in the language of Section 54(1)(c).

  1. Nicola Monaghan, Criminal Law (Oxford University Press 2016) 97.
  2. R v HM Coroner for Inner London ex p Douglas-Williams [1999] 1 All ER 344.
  3. The Crown Prosecution Service, ‘Homicide: Murder and Manslaughter’ (2019) accessed 22 January 2020 .
  4. Dawes; Hatter; Bowyer [2013] EWCA Crim 322.
  5. Nicola Monaghan, Criminal Law (Oxford University Press 2016) 107.
  6. Gurpinar v R [2015] EWCA Crim 178.
  7. Nicola Monaghan, Criminal Law (Oxford University Press 2016) 112.
  8. David C. Ormerod et al, Smith and Hogan's Criminal Law (Oxford University Press 2015) 579.
2.2 Diminished responsibility

The Homicide Act 1957, s2, as amended by the CJA 2009, s52 provides that if the defendant suffers from mental abnormality due to a recognised medical condition (s2(1)(a)) that substantially impairs her ability (s2(1)(b)) to understand her conduct or form a rational judgment or exercise self-control (s2(1A)) and to explain her act or omission in doing the killing, she must not be convicted of murder (s2(1)(c)).

This defence requires medical evidence of the mental abnormality. Such abnormality reflects a state of mind that is different from an ordinary human being and that will be treated abnormal by a reasonable person. Depression is a recognised medical condition.

In R v Bunch (Martin John), it was held that the defendant must establish that the killing was caused by a medical condition behind her mental abnormality impairing her ability to understand her conduct, form a rational judgment, or exercise self-control (s2(1A)) that caused her to or significantly contributed in causing her to commit the killing.

Order Now

Accordingly, there are four stages, as held in R v HM Coroner for Inner London ex p Douglas-Williams, which are needed to establish diminish responsibility. Firstly, there must be an abnormality of mental functioning as held in Bunch. Such abnormality is caused by a medical condition. Such medical condition substantially impaired the ability to understand the nature of conduct, form a rational judgment, exercise self-control. Such impairment provides the explanation for the conduct.

3. Issues – Kora and Mia
3.1 In case of Kora

The facts of the case show that there was actus reus when Kora killed the vicim. However, the facts do not show mens rea for the murder. As such, Kora cannot be liable for murder as murder require both actus reus and mens rea.

The facts of the case show that Kora felt convinced that the victim was going to kill her and her conduct was an instant act to defend herself. The killing will be held justified in self defence.

The defence of loss of control is applicable to the case of Kora. The three components of this defence under Section 54(1)(a)(b) and (c) of the Coroners and Justice Act 2009 need determination.

The facts show that Kora was woken up by the victim strangling her and on being convinced that he was going to kill her, she grabbed the lamp and struck the victim killing him instantly. This is sufficient evidence that the killing was a result from loss of control.

  1. R v Byrne [1960] 2 QB 396.
  2. The Mental Health Act 2007, s Section 1(2); The Crown Prosecution Service, ‘Mental Health Conditions and Disorders: Draft Prosecution Guidance’ (2019) accessed 22 January 2020. .
  3. R v Bunch (Martin John) [2013] EWCA Crim 2498; R v Byrne (Patrick Joseph) [1960] 2 Q.B. 396.
  4. R v HM Coroner for Inner London ex p Douglas-Williams [1999] 1 All ER 344.
  5. Ibid.

In regard to the second component of a qualifying trigger under Section 55(3), the facts show that Kora has been suffering physical and emotional violence committed in the hands of the victim since their marriage. The occasion when the killing happen raises a fear trigger of serious violence from the victim against her as she was convinced the victim was going to killer her that time. This constitutes a qualifying trigger.

In regard to the third component, anybody of her age and sex and particularly in her position and circumstance would have reacted in the same manner. This is considering the fact that she was tolerating the violence and exercising self-restraint since the marriage.

3.2 In case of Mia

The facts of the case show that Mia used to take medication for depression. As depression is a recognised medical condition, according to the Homicide Act 1957, s2, Mia suffers from mental abnormality. As such, Mia can claim the defence of diminished responsibility.

The facts show that after she stopped taking her medication, she became convinced that Kora was going to kill her. This is a case of mental abnormality. She must establish the medical evidence to that effect and established that her mental condition impaired her ability to form a rational judgment and to explain her act in the killing. If she is able to establish the four stages laid down in R v HM Coroner for Inner London ex p Douglas-Williams, she will not be convicted of murder of Nancy.

The facts also show that when Dr Owen was examining Nancy, he failed to notice that Nancy’s lung had been punctured and so did not give her any treatment for this injury. This resulted in Nancy’s death.

As per law, for a murder, there must be causal link between the act and the death. However, in the current case, the failure of Dr. Owen to notice the puncture in Nancy’s lung and failure to give her the requisite treatment constitutes the intervening act that broke the chain of causation. The failure on the part of Dr. Owen breaks the link between Mia’s actus reus and the death of Nancy. This failure is the sole cause of Nancy’s death and not because of Mia’s shooting. Mia will be relieved from the liability of murder.

4. Conclusion

To conclude, defences of loss of control and diminished responsibility will relive Kora and Mia respectively from the liability of murder.

In case of Kora, there was no mens rea. Her matter meets the three components provided under the Coroners and Justice Act 2009 to establish the defence of loss of control.

  1. R v HM Coroner for Inner London ex p Douglas-Williams [1999] 1 All ER 344.

In case of Mia, the fact that she suffers mental abnormality will absolve her liability of murdering Nancy. Further, the intervening act on the part of Dr. Owen will also relieve her from the liability of murder.

Cases

Andrews v DPP [1937] AC 576.

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.

Bateman (1925) 19 Cr. App. R. 8.

Caparo Industries PLC v Dickman [1990] 2 AC 605.

Dawes; Hatter; Bowyer [2013] EWCA Crim 322.

Feely [1973] QB 530.

Gurpinar v R [2015] EWCA Crim 178.

Ivey v Genting Casinos [2017] UKSC 67.

Lawrence v Metropolitan Police Commissioner [1972] AC 626.

Oxford v Moss (1979) 68 Cr App Rep 183.

Robinson [1977] Crim LR 173.

R v Adomako [1994] UKHL 6.

R v Cheshire [1991] 1 WLR 844 at 848B-C 851H-852B.

R v Church [1965] 2 WLR 1220.

R v Barton and another [2020] EWCA CRIM 575.

R v Ghosh [1982] 2All ER 689.

R v Goodfellow (1986) 83 Cr App R 23.

R v Fernandes [1996] 1 Cr App R 175, 188.

R v Fenton (1830) 1 Lew CC 179.

R v Hinks [2000] UKHL 53; [2001] 2 AC 241.

R v HM Coroner for Inner London, ex parte Douglas-Williams[1998] 1 All ER 344.

R v Lamb [1967] 2 QB 981.

R v Misra [2004] EWCA Crim 237.

R v Matthews (Darren John) [2003] EWCA Crim 192.

R v Moloney [1985] 1 AC 905.

R v Rudling [2016] EWCA Crim 74, at 18

R v Rose [2017] EWCA Crim 1168.

R v Sinclair and others [1998] EWCA Crim 2590.

R v Wallace (Berlinah) [2018] EWCA Crim 690.

R v Byrne [1960] 2 QB 396.

R v Woollin [1998] 4 All ER 103.

Sinclair v Neighbour [1966] 2 QB 279.

Bibliography
Books

Allen M, Textbook on Criminal Law (Oxford University Press 2013)

Ormerod DC et al, Smith and Hogan's Criminal Law (Oxford University Press 2015)

Heaton R and Claire de Than, Criminal Law (Oxford University Press 2011)

Marshall Cavendish Corporation, Trusts Law (Taylor & Francis Group 2006)

Monaghan N, Criminal Law (Oxford University Press 2016)

Than CD and Russell Heaton, Criminal Law (Oxford University Press 2013)

Williams R, Citizens' Experiences of Mistreatment and Injustice in the Early Stages of Law Enforcement (Waterside Press 2015)

Journals

Steel A, ‘Taking Possession: The Defining Element of Theft?’ (2008) 32(3) Melbourne University Law Review 1030.

Steel A, ‘Permanent Borrowing and Lending: A New View of Section 6 Theft Act 1968’ (2008) 17 Nottingham Law Journal 3.

Others

The Crown Prosecution Service, ‘Gross Negligence Manslaughter’ (2019) accessed on 22 January 2021 .

The Crown Prosecution Service, ‘Homicide: Murder and Manslaughter’ (2019) accessed 22 January 2021 .

The Mental Health Act 2007, s Section 1(2); The Crown Prosecution Service, ‘Mental Health Conditions and Disorders: Draft Prosecution Guidance’ (2019) accessed 22 January 2020. .

R v Bunch (Martin John) [2013] EWCA Crim 2498; R v Byrne (Patrick Joseph) [1960] 2 Q.B. 396.


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