Podcast: the Fair
Martin and Ben both collected antique books. Martin was jealous of Ben because Ben’s collection was larger and contained some very rare books. So one night, intending to destroy Ben’s books he pushed some lighted petrol-soaked rags through what he thought was the study window of Ben’s house. In fact, it was the living room window. The contents of the living room were destroyed. Martin believed that Ben was in the house but in fact the house was unoccupied.
Discuss Martin’s criminal liability.
How would your answer differ if Ben had been in the house in bed and, woken by the smell of smoke, had jumped from the bedroom window and died from the injuries sustained when he hit the ground.
Podcast: the Fair
Criminal damage – arson – s 1(1) and s 1(3) Criminal Damage Act (CDA) 1971 (1) Always make it clear which offence you are considering. Headings are useful in this respect. Be precise.
The offence of criminal damage contrary to s 1(1) of the 1971 Act is committed where a person, without lawful excuse, intentionally or recklessly, damages or destroys property belonging to another. (2) Explain the ingredients of liability for the offence under consideration. Be precise.
It is clear from the facts that Martin, without lawful excuse, intentionally destroyed property belonging to another. It is not necessary that the intention to destroy property is directed at the particular property damaged. Martin intended to damage property belonging to another and did so. The ingredients of criminal damage are satisfied and, as the damage was caused by fire, Martin has committed an offence of arson (s 1(3)). (3) Apply the law to the facts of the question. Only address 'live' issues. It is not necessary at this point to explain the meaning of intention as the facts tell us that Martin intended to destroy Ben's property. Nor is it necessary to analyse the meaning of 'property belonging to another' – the contents of the living room are clearly property belonging to another. The issue requires no discussion.
‘Property’ means property of a tangible nature, whether real or personal, including money (s 10(1)) and it belongs to another (Ben). Section 10(2) says that property shall be treated, for the purposes of this Act, as belonging to any person (a) having the custody or control of it; (b) having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest); or (c) having a charge on it. I assume that Ben owns the property and has custody or control. (5) Do not copy out large chunks of statutes. You will get no credit for doing so.
Criminal damage – arson – s 1(2) and s 1(3) Criminal Damage Act 1971 (1) Always make it clear which offence you are considering. Headings are useful in this respect. Be precise.
Martin may be guilty of the aggravated form of the offence under s 1(2). He intended to cause damage and was reckless as to endangering Ben’s life because he must have known that there was a risk of life being endangered and he must have known that it was unreasonable for him to take that risk (R v G (2003)). It does not matter that life was not in fact endangered (Sangha (1988)). It is his mens rea that counts. (4) Do not draw inferences from the facts where it is not possible to do so. You should explain what has to be proved. Speculation about what the defendant intended or foresaw is not required.
He knew that life might be endangered by either the damage caused by the fire or by the fire itself and, therefore, is guilty of arson (Steer; Dudley (1989)). (4) Do not draw inferences from the facts where it is not possible to do so. You should explain what has to be proved. Speculation about what the defendant intended or foresaw is not required.
His possession of the petrol-soaked rags is also an offence. Section 3 of the CDA 1971 provides that a person who has anything in his custody or under his control intending without lawful excuse to use it or cause or permit another to use it (a) to destroy or damage any property belonging to some other person; or (b) to destroy or damage his own or the user’s property in a way that he knows is likely to endanger the life of some other person, is guilty of an offence. (5) Do not copy out large chunks of statutes. You will get no credit for doing so.
Alternative facts
Murder
A person who, intending to kill or intending to cause grievous bodily harm, unlawfully kills another human being is, in the absence of a defence, guilty of murder (Moloney (1985)).
The first issue to consider concerns the actus reus of the offence and the question whether Ben’s death is attributable to Martin’s actions – that is, whether Martin’s actions are a cause of Ben’s death. Clearly his actions are a factual cause of Ben’s death; had Martin not started the fire, Ben would not have jumped from the window and would not have died. But proof that Martin’s actions were a factual cause of death it is not sufficient. The actus reus is only established on proof that D’s actions were a legal cause of the death. This is a more complex question and when, as in the present case, it is a live issue, it is for the judge to direct the jury by reference to the relevant principles of legal causation, and then to leave it to the jury to decide, in the light of those principles, whether or not the necessary causal link has been established (Pagett (1983)).
In cases such as the present one - where V has taken some action to avoid a threat or danger created by D and suffers injury or dies as a result - the principle is that, provided the action taken was within the ‘range of responses’ that might reasonably be expected from a person in that situation, the injury or death may be attributed to the actions of D (Williams and Davis (1992)). (6) Where causation is a 'live' issue then it is important to explain the role of judge and jury and then to explain the principle by reference to which the issue should be resolved. Note again that it is not for you to resolve the issue. It is sufficient that you explain the principle by reference to which the jury should resolve it.
Did Martin act with the relevant mens rea for murder? Did he intend to kill or cause grievous bodily harm? (8) Avoid punctuating your answer with questions. If he knew that it was virtually certain that Ben would die then he had the mens rea. This is a question for the jury who may conclude that he intended to kill if he knew it was virtually certain that Ben would die (Moloney (1985); Nedrick (1986); Woollin (1998)). (9) The final two sentences of this paragraph are contradictory.
Manslaughter
If he is not guilty of murder, he is guilty of manslaughter. Martin foresaw a risk of death or grievous bodily harm. (Lidar (1999)).
Also he committed an unlawful and dangerous act (Goodfellow (1986); Newbury (1977)).
Arson is an unlawful act (Goodfellow). And it is dangerous because all sober and reasonable people would have known that Martin’s acts contained a risk of some harm (Nedrick). (7) Nedrick is not the correct authority for the rule. Errors of this type, unless they are frequent, are often treated leniently by examiners.