Podcast: the Good
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 Good
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 (s1(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.
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.
Indeed, Martin may be guilty of the aggravated form of the offence under s 1(2). The actus reus of ‘aggravated damage’ consists of the destruction or damage of property. The mens rea requires proof, firstly, that D intended to cause damage or was reckless as to doing so and, secondly, that D intended, by the destruction or damage, to endanger the life of another, or was reckless as to whether the life of another would be endangered. (2) Explain the ingredients of liability for the offence under consideration. Be precise.
Clearly Martin intended to damage property. The issue is whether he intended to endanger life or was reckless as to life being endangered. Either will suffice.
Although his direct intention was to destroy the book collection, if the jury is sure that he believed that it was virtually certain that life would be endangered by his acts, it is entitled to conclude that he intended to endanger life. This approach to intention has been adopted in murder and it is submitted that it ought to apply equally to the offence under current consideration (see Woollin (below)). (4) As the facts do not disclose whether Martin believed that his actions were endangering the life of another it is necessary to give considereation to the meaning of the terms 'intention' and 'reckless'. Note that it is not necessary to come to a conclusive answer in respect of his liability. In cases of factual ambiguity to explain what must be proved.
Recklessness as to life being endangered requires proof that Martin knew or believed that there was a risk of life being endangered and that, in the circumstances known to him, it was unreasonable for him to take that risk (R v G (2003)). It is inconceivable that Martin thought it was reasonable in the circumstances to endanger life and, thus, provided he was aware of the risk of life being endangered, he committed an offence of ‘aggravated arson’. The fact that the house was, at the time, unoccupied and life was not in fact endangered is immaterial; liability is based on D’s beliefs and foresight (Sangha (1988)). (4) As the facts do not disclose whether Martin believed that his actions were endangering the life of another it is necessary to give considereation to the meaning of the terms 'intention' and 'reckless'. Note that it is not necessary to come to a conclusive answer in respect of his liability. In cases of factual ambiguity to explain what must be proved.
Although it is necessary to show that D was reckless as to life being endangered by the damage to the property, it would appear that where damage is caused by fire it is sufficient that D was reckless as to life being endangered by either the damage caused by the fire or by the fire itself (Steer; Dudley (1989)). (5) It is important to point out that the aggravating element in aggravated damage is a mens rea element and not an actus reus element.
Possession with intent to destroy or damage property – s 3 Criminal Damage Act 1971 (1) Always make it clear which offence you are considering. Headings are useful in this respect. Be precise. Finally, as far as this part of the question is concerned, Martin has committed an offence contrary to s 3 of the 1971 Act as he was in ‘custody’ or ‘control’ of items (petrol-soaked rags) that he intended, without lawful excuse, to use to commit an offence contrary to s 1.
Alternative facts
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)). (2) Explain the ingredients of liability for the offence under consideration. Be precise.
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)). It was said that, in applying this test, the jury should consider appropriate characteristics of the victim. Presumably, these characteristics include the fact that Ben had just woken from sleep. In Corbett (1996), the victim was a mentally handicapped man who was extremely drunk at the time he was attacked by D. He ran away and was fatally struck by a passing car. The Court of Appeal approved the trial judge’s direction that the jury had to consider whether what the victim had done was something that might reasonably be expected as a reaction of somebody in that state. In addition, the jury should bear in mind that V might, in the agony of the moment, act without careful reflection.
In Marjoram (2000), the Court of Appeal rejected the appellant’s submission that the question of whether the evasive action of V was reasonably foreseeable should be determined by reference to the foresight of a reasonable person of the same age and sex as the defendant. The test is objective and, thus, the personal characteristics of the assailant are irrelevant.
Thus, if the jury, in the light of all the evidence, is sure that the evasive action taken by Ben was reasonably foreseeable and proportionate to the threat, the fatal injuries are attributable to Martin’s actions and the actus reus requirement of murder is satisfied. (6) Where causation is a 'live' issue 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.
The next issue to consider is whether Martin acted with the relevant mens rea for murder. Murder requires proof of an intention to kill or cause grievous bodily harm (Vickers (1957)) and grievous bodily harm means ‘serious bodily harm’ (Saunders (1985)).
Although Martin did not act with a direct intent to kill Ben or cause him grievous bodily harm the jury is nevertheless entitled to find that he intended to kill or cause grievous bodily harm if he knew or believed that death or serious bodily harm was virtually certain to result from his acts (Moloney (1985); Nedrick (1986); Woollin (1998)).
If the jury is not sure that Martin foresaw that death or grievous bodily harm was virtually certain to result then they must return a verdict of not guilty to murder. (7) After considering the actus reus the mens rea should be considered and explained.
He may, however, be guilty of manslaughter.
Manslaughter (1) Always make it clear which offence you are considering. Headings are useful in this respect. Be precise.
There are a number of bases of liability for manslaughter.
If the jury is sure that Martin foresaw a risk of death or grievous bodily harm then a conviction for manslaughter (by recklessness) follows (Lidar (1999)). (2) Explain the ingredients of liability for the offence under consideration. Be precise.
Alternatively, manslaughter is committed where D, by an unlawful and dangerous act, causes the death of another (Goodfellow (1986); Newbury (1977)). (2) Explain the ingredients of liability for the offence under consideration. Be precise.
Clearly, the offence of arson is an unlawful act (Goodfellow) and the issue of causation has been discussed above. Whether it was a dangerous act is a question for the jury who should be directed to consider whether all sober and reasonable people would inevitably have recognised that Martin’s acts subjected another human being to the risk of some harm, albeit not serious harm (Church (1966)). In the circumstances it would not be surprising were the jury to find that Martin’s act was ‘dangerous’ and, thus, provided the necessary causal link between Martin’s actions and Ben’s death is established, he may be convicted of manslaughter. (8) After considering possible liability for murder, the ingredients of liability for manslaughter are discussed. The two most appropriate bases of liability are discussed and explained.