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Criminal law


Marlene and Paul lived in an unoccupied house as friends. Marlene had just given birth by her alienated husband who did not live with them. Neither Marlene nor Paul was registered to a doctor because Marlene was scared to lose her baby. They had no income except when Paul stole. Marlene became ill as a result of child birth and suffered from post-natal depression, due to that she had no interest in taking care of he baby. Paul tried his best to take care of all of them but Marlene was too depressed to eat and became ill, then caught pneumonia since they lived in a cold house but begged Paul not to call a doctor. Marlene died of pneumonia one night and Paul reported to the police. The doctor said if medical help was given to Marlene in time, she would have been saved.

The aim of this essay is to critically examine any criminal liability resulting from Paul’s action for the death of Marlene.

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Under the English law and Jurisdiction, criminal offences leading up to Murder must come under serious scrutiny to ensure that Mens Rea is proven beyond all reasonable doubt before a verdict is passed in the court of law. It’s been taken that an individual is liable on the off chance that they are ended up being at fault or reprehensible in both thought and action. That is the general contrast among murder and manslaughter.

It is no doubt a common knowledge that over the years, there has been a series of contradictions with regards to INTENTION and how the English Court of Justice has applied this concept to their rulings towards achieving a proportionate judgement especially with Murder cases and other criminal offences. The different tests applied by the English Court has been met with quite a lot of inconsistency in a bid to demonstrate culpability and prove intentions in Murder. A closer look at the definition of murder as seen in the case of R v Vickers perhaps might give us a clearer understanding in the words of Lord Goddard CJ:

“Murder is, of course, killing with malice aforethought, but ‘ malice aforethought’ is a term of art. It has always been defined in English law as either an express intention to kill, as could be inferred when a person, having uttered threats against another, produced a lethal weapon and used it on a victim, or implied where, by a voluntary act, the accused intended to cause grievous bodily harm to the victim, and the victim died as the result.”

Following up from the above definition of murder, it is also imperative to remember that in Murder cases, it entails a sound mind, memory, age of discretion and involving illegal destruction to any reasonable creature Although a Lay man’s definition and meaning of intentions involves aims, plans, purpose, desires, wants and many other different forms which an individual can express voluntary actions, however there is still an imprecision by statue and jurisdictive measures thus far deficient of satisfactory and acceptable procedures of clarity to the very legal definition of Intent and criminality with regards to murder giving credit to Lord Edmund Davies statement ruling in the case of MPC v Caldwell :

“The law in action complies its own dictionary. In time, what was originally the common coinage of speech requires a different value in the pocket of the lawyer than when in the layman’s purse”

In recent times, there has been an evolution in the interpretation of Intent owing to the verdicts of the higher court of justice . There are two different perspective points from which intention can be viewed from, firstly viewing it as a pattern of a significantly self-association of a strong-minded action intended to cause serious consequences with no plea of negligence or recklessness. This approach is more theoretical. The Second viewpoint often dealing with homicide cases and a more practical approach distinguishes between intention and recklessness whilst shedding light on the contrast between murder and manslaughter as well.

Demonstrating Intention is a very important role in criminal law cases particularly in Murder; Jeremy Horder cited four suggestive ways to establishing intention which are destruction, nature of destruction, defensive autonomy and establishing the liability of the defendant . Given all this, it still doesn’t connote the fact that most times motives have been misplaced for intention especially whilst trying to prove defendant’s liability. This is a wrong conception as its been shown often times that Motive is an absolute sine qua non for intent . One can relatively differentiate intention from motive or desire as it is the reason behind a person’s actions.


There are clear cases of exception to the prerequisite of motive in Airedale NHS Trust v Bland the rule of double effect demonstrates a condition to construct intent, it was held that withdrawal of treatment was proper even though characterised as omission but in such circumstances particularly where the patient is incapable of such decision making and the doctor’s expertise being relied on in this instance has a right to make the call. Also, there was no duty to treat if treatment does not appear to be in the best interests of the patient. There existed no proven prospect of the treatment improving his condition therefore making it futile. The best interest of the patient did not involve being kept alive.

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A closer look at intention from the perspective of Moral philosophy, we can deduce two types of intentions, a ‘direct’ intention and ‘oblique’ intention. In a nutshell, it simply summarises as a person direct intent to bring about destruction with foresight of risk and consequences with full knowledge, sound mind and willingness to carry it out, the latter is a person’s self-realisation of a risk, foreseeability of likely result accompanied by the after effect and consequences of accomplishing his aim. Direct intent seems to have the exact same explanation for normal Intention as both focuses on the aims and purpose. A definition of Intent was given In Mohan (1976) , as: ‘A decision to bring about, in so far as it lies within the accused’s power, (the prohibited consequence), no matter whether the accused desired that consequence of his act or not’


On the other hand, Oblique or indirect intent (also known as fore sight intent) in a layman’s term describes as viewing a thing from the corner of your eye. It’s a little tricky because the consequences associated with the voluntary action is not found in a defendants clear line of purpose, it is rather an amalgamations of side effects acceptable to the defendants which gave rise as a result of foreseeability or predictable accompaniment of the anticipated intent. indirect intent has always poised to be a complex one and overtime is constantly connected with crimes and cases of defendants objectively accused of dangerous conduct who allegedly claimed their sole intentions, aims, and main purpose was never to bring about destruction but to accomplish something different. A resolve and better understanding of intention in principle sense is very fundamental for clarity sake

The English court of Justice has come under a lot of scrutinization with regards to proving intent how probability is determined when checking a defendant’s liability and intended verdict, this now raises a question around equality between probability and intention and when a judge may need to infer intention. Taking a closer look at the subjective and objective approach conducted, the defendant’s perspective can be seen from the subjective test. Subjective deals with foreseeability of risk and destructive degree resulting from the defendant’s voluntary actions this can be called the Cunningham recklessness or what is commonly known as subjective recklessness

The objective test on the hand was widely popular between 1982 and 2003 and in contrast to subjective, it aimed at observing the foreseeability of a reasonable mind and the extent of likelihood of the intended consequences from the defendant’s voluntary actions. Liability for the actions will be brought upon the defendants if it is established that he did not apprehend the risk. The objective test is also otherwise known as the Caldwell recklessness. While some people are of the opinion that these tests pose a reasonably united front for the English court rulings, in reality and the public view it doesn’t really encompass the subjective or unequivocally objective as it was proposed to be from the start especially with the application of what should be regarded as criminal liability for an unforeseen consequence in homicide or murder cases


Following off from the subjective and objective test, a closer look at Recklessness brings us to the case of Elliott v C (1983) 1 WLR 939, where the Cunningham definition of recklessness is been explained in more broad details. The case centres on the recklessness of the defendant who was a 14 years old kid with low intelligence, seen entering a wooden shed where she discovered a bottle of white spirit. She poured the spirit on to the floor and set the shed ablaze. The fire was out of control that it resulted to a lot of destruction to the content in the shed. The Little girl was charged with arson contrary to section 1 (1) of the criminal Damage Act of 1971.

It was held that under section 1 of the Criminal Damage Act goes to the reckless damage of property and consist of an obvious risk to a reasonable person that the property will be destroyed, and that the defendant has no given any thought of the risk about to take place. The defendant has no thought but has acted recklessly.


Involuntary manslaughter is defined as an offence leading to death of which when being undertaken by the defendant was not intended to result to death with lack of mens rea for murder. If the defendant does not possess the intention for murder and the murder was unlawful then it can be easily argued he may be guilty for manslaughter. Involuntary manslaughter is looked at from three perspective which are:

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I) Constructive manslaughter.

II) Gross negligence manslaughter.

III) Reckless manslaughter.


Constructive manslaughter is also known as unlawful act manslaughter its showcased in a defendant’s conviction of killing in the process of committing a felony although said to lack the mens Rea. Murder usually results from the unlawful act before its termed constructive manslaughter.

Three Fundamentals of constructive manslaughter includes:

i) There must be an unlawful act

ii) The unlawful act must be dangerous

iii) The unlawful dangerous act must cause death.

The case of R v Goodfellow (1986), shows the defendant being hassled by his landlord over inability to come up with house rent. Unable to pay, he set the house on fire and disguised to appear like a petrol wreck accident. His wife and kid who was caught up in the fire dies in the hospital. The court held that the defendant was acted in a manner that posed serious risk and caused physical damage to people, he had foresight of damage but still carried with the act. He was found liable for manslaughter. This case encompasses all the fundamentals needed to show constructive manslaughter. Its worthy to note that manslaughter cannot be founded alone on an unlawful act because it is said to be negligently performed, it has to be unlawful and the defendant must possess the prerequisite of mens rea for the offence.


Gross negligence manslaughter focuses on murder cases brought about by the conduct and carelessness of the defendant which leads to a criminal act. The actions of the defendant are seen to be lawful but, in a way, renders him liable for a criminal offence. Gross negligence consists of four categories namely:

I) Duty of care.

II) Breach of the duty.

III) Causation”,

IV) Gross negligence.

Gross negligence manslaughter came into play from the case of R v Bateman of (1927).

A doctor was convicted of manslaughter arising out of his treatment of a woman in childbirth. Lord Hewitt CJ gave the following guidance in the ruling in relation to gross negligence manslaughter:

“If A has caused the death of B by alleged negligence, then, in order to establish civil liability, the plaintiff must prove (in addition to pecuniary loss caused by the death) that A owed a duty to B to take care, that that duty was not discharged, and that the default caused the death of B. To convict A of manslaughter, the prosecution must prove the three things above mentioned and must satisfy the jury, in addition, that A’s negligence amounted to a crime. In the civil action, if it is proved that A fell short of the standard of reasonable care required by law, it matters not how far he fell short of that standard. The extent of his liability depends not on the degree of negligence but on the amount of damage done. In a criminal court, on the contrary, the amount and degree of negligence are the determining question. There must be mens rea.”

It was held in the court that to prove criminal liability for manslaughter in negligence, the defendant must be in a position to owe a duty of care which was found in the doctors duty of care to the patient, the duty not fully satisfied, his failure to discharge his duty led to the death of the patient and amounted to negligence satisfactory for mens Rea in the case. By the professional standard he stands guilty in the court of justice. Recklessness manslaughter is been held that manslaughter can be committed by recklessness based on objective standard.

The law identifying with negligence must be assessed before giving the criminal liability of this case can be stated. As indicated by the case, Paul was only a friend of Marlene’s who shared a room with her. For Paul to be liable in negligence to exist, it must be demonstrated that Paul did, or omitted to do something that led to Marlene’s death. For this, three elements exist which need to be corroborated before a claim for negligence can be successful. For Paul to be liable, he must be seen to owe Marlene a duty of care and that the duty of care was breached, and that Marlene suffered physically from that in a direct manner.

Paul owed Marlene a duty of care because she was literally his neighbour and a friend and according to the case Donoghue v Stevenson, a duty of care is owed by one person to his neighbour. Lord Atkin: “The standard that you are to love your neighbour moves towards becoming in law you should not harm your neighbour; and the legal counsellor’s enquiry ” Who is my neighbour?” gets a confined answer. You should take sensible consideration to keep away from acts or omissions which you can sensibly predict would be likely to injure your neighbour. Who then in law is my neighbour? The appropriate answer is by all accounts people who are so intently and directly influenced by my act that I ought reasonably to have them in consideration as being so influenced when I am guiding my mind to the acts or omissions which are called in question.” Like in the case of R v Stone and Dobinson where S and D took S’s sister, the victim, in as a lodger. D took care of her by feeding her and bathing her but it was all to no avail as the victim passed away. Dobinson was seen to owe a duty of care to the victim because she undertook it herself by helping out , Paul undertook a duty of care when he started going out to steal and playing his guitar to fend for Marlene and her child. Also, his duty of care can be seen from when he started feeding Marlene when she was ill. Paul breached that duty of care from when he failed to take Marlene to the hospital. It is reasonable that he needed to tune in to his friend but not when he realised the friend was seriously ill and needed medical attention. It is true that Paul was in the same situation as Marlene with not enough financial support to fend for himself or even to buy drugs for Marlene hence why it was important for him to take his friend somewhere certified for medical attention. Paul had his friend, Marlene’s best interest at heart but it didn’t really mean to go to the degree of overlooking his friend notwithstanding when she was in danger. The last component is to prove that Paul caused direct damage to Marlene. If Paul had taken Marlene to the hospital as soon as her illness started or even when it got serious, Marlene may have still been alive. It is true that Marlene had already made her decision about not going to the hospital due to the fact that she was scared of losing her child to the authorities but if Paul had overlooked what she said and thought of the severity of Marlene’s illness and taken her to the hospital she could have still been alive. The doctor who Marlene was taken to after her death, admitted that if Marlene was taken to the hospital at an earlier time or day, she would have been saved.

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So following off from the case of R v Bateman it was held that “So as to establish criminal liability the facts must be with the end goal that in the opinion of the jury the negligence of the accused went past a simple issue for compensation between subjects and demonstrated such disregard for the life and wellbeing of others as to add up to a crime against the State and conduct deserving punishment.”

So as to ground a conviction for manslaughter the Paul must probably been ‘grossly negligent’ in regard to his breach of duty.

In view of this, Paul can be convicted of gross negligence manslaughter.



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Donoghue v Stevenson [1932] AC 562

Elliott v C (1983) 1 WLR 939

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R v Stone and Dobinson [1977] 1 QB 354

R v Vickers [1957] 2 QB 664

R v Goodfellow [1986] 83 Cr. App. R. 23

R v Church(1965) 2 W.L.R. 1220


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