Liability of Andrew in The Death of Bettina

If Andrew is to be held liable for murder in the death of Bettina, the prosecution would have to establish that Andrew either possessed an intent to kill or an intent to cause grievous bodily harm[1].

According to Cokes’ definition "The actus reus for murder is that there must be an unlawful killing of a human being[2]" and the defendants actions, in this case Andrews’ actions, must be identified as the cause of Bettina’s death. To establish this, it must be proven that Andrews actions were the factual and legal causes of the death of Bettina.

For factual causation we must perform the "but for" test: but for Andrew actions would Bettina have died? [3]. The facts state that Andrew kicked Bettina in the stomach repeatedly which caused her to suffer a miscarriage and internal bleeding. Due to the internal bleeding which stemmed from her injuries inflicted on her by Andrew, she died the next day. Therefore, applying the but for test it could be argued by the prosecution that "but for" Andrew’s actions, Bettina would not have suffered injuries which caused her internal bleeding and miscarriage and she wouldn’t have died. He factually caused her death.

We would next have to establish legal causation. For this, the prosecution would have to demonstrate that Andrew’s actions were the "substantial and operative cause" of Bettina’s death[4]. The facts state that her internal injuries which led to her internal bleeding were the cause of her death as well as complications from her miscarriage. However, it was Andrews’ conduct which caused the injuries which caused her death. According to R v Hennigan, Andrews’s actions must not be the sole or the main cause of Bettina’s death to satisfy legal causation[5]. The facts do not mention any novus actus interveniens which may have broken the chain of causation, all we are told is that Bettina called the police as she began bleeding.

The prosecution then has to establish if Andrew has the required mens rea for murder which is intention[6]. Andrew’s intentions are unclear from the scenario so we must look at oblique intention. For this, it would have to be established that whilst Andrew was kicking Bettina in the stomach he could foresee that certain consequences, mainly grievous bodily harm or death, were "virtually certain" and intended the result to come about even though it was not his primary aim[7]. The fact that Andrew kicked Bettina in the stomach several times demonstrates oblique intention on Andrews part as it was virtually certain that she would suffer at least grievous bodily harm. However, it is important to note that a jury would not always be obliged to consider the foresight of a virtual certainty as proof of intention[8]. After considering this, it can be concluded that the elements for murder have been satisfied and a charge may be brought against Andrew.

Defences

Andrew may benefit from the partial defense of loss of self-control, according to s 54 of the coroners of justice act[9]. To benefit from this defense Andrew must establish that him killing Bettina resulted from his loss of self- control and that he had a qualifying trigger[10]. He may claim ,pursuant to s 55 subsection 4, that as Bettina told him that she was having a baby for Crispin and that Crispin was a better lover than Andrew and after hearing such life changing news, he came home to find Crispin , his wife’s lover, in his home. This could arguably qualify as circumstances of an extremely grave character which caused Andrew to possess a justifiable sense of being wrong. However, according to section 55 subsection 6 ( c) actions or words uttered in relation to sexual infidelity are to be disregarded. So, it is likely that Andrew might not be able to benefit from this defense. However he may use the precedent set out in the case of R v Clinton[11] where it was established that sexual infidelity may be taken in to account if it is found that there are other qualifying triggers asides from it alone. Furthermore, to benefit from the defense, Andrew must also establish that a person of his sex and age with a normal degree of patience and self-control would have to reacted in a similar way to Bettina’s news. But, kicking her in the stomach repeatedly is unlikely to be the reaction of such a person, therefore it is unlikely he would be able to benefit from this defense.

Another defense Andrew could rely on is the partial defense of Diminished responsibility, pursuant to s 2 of the homicide act[12] which was later amended by s 52 of the corners and justice act[13] which pertains to defendants who at the time of the murder were enduring a recognized mental condition which considerably affected their ability to make decisions. To benefit from this defense Andrew would have to establish that his mental functioning was impaired by a recognized medical condition. He could claim that his clinical depression impaired his mental functioning to the point where it robbed him of all reasonable judgement and ability to exercise self-control, which is why he killed Bettina. In R v Gittens[14] a man who was suffering from depression and benefitted from the testimony of medical experts had his sentence for murder thrown out and replaced with one for manslaughter. To benefit from this defence, Andrew would have to provide substantial medical evidence to satisfy all elements of the defence before this is put to the jury[15]. However, unchallenged medical evidence would not result in an automatic removal of a murder charge[16].

Liability of Andrew in the death of Bettina’s unborn child

In assessing Andrews liability for the death of Bettina’s unborn child, if the prosecution wishes to bring a charge of murder against Andrew, the A-G's Ref (No 3 of 1994)[17] must be considered as it analyses coke’s definition of murder[18]. This definition stipulates that the killing must be of a human being and it was concluded that in order for the fetus to be recognized as a human being it must be wholly removed from the mother [19]. In this case, the baby died in Bettina’s stomach and therefore is unlikely to be considered as independent from the mother. it is unlikely that the prosecution would succeed in bringing murder charges against Andrew for the unborn child.

However, the prosecution is more likely to be successful if they bring charge of child destruction pursuant section 1 and 2 of the infant life preservation act 1929[20].

Defences

Andrew may claim that the child was not capable of being born alive as it may have been under twenty eight weeks which is the age required of a fetus to bring such charges, however we are not told how far along Bettina’s pregnancy is.

Liability of Andrew in the death of Crispin

In the death of Crispin, the prosecution may consider bringing murder charges against Andrew. As previous stated, they would have to demonstrate that Andrew possessed the actus reus and mens rea for murder . The actus reus for murder is that there be an unlawful killing of a human being[21], the prosecution would have to show that Andrews’ actions were the cause in fact and in law of Crispin’s death. For factual causation, it would have to be determined that "but for" Andrew hitting Crispin in the death, he would not have died[22]. The facts state that Andrew hit Crispin with an ashtray whilst he was trying to separate Bettina and Andrew from fighting. Due to the hit, a pre-existing aneurysm burst in Crispin’s brain which led to his death. in r v Dyson[23] it was stated that the death of the victim being impending doesn’t release the defendant from being liable. Therefore, even though Crispin was already suffering from an illness which could have killed him, Andrew would still be liable for his death.

To determine legal causation, it would have to be established that Andrew was the operating and substantial cause[24] of Crispin’s death. The facts state that the aneurysm could have burst at any time if Crispin experienced any physical strain. Therefore, if Andrew had not caused the fight with Bettina and hit Crispin in the head with an ashtray, it could be argued that the aneurysm may possibly not have been triggered. Furthermore, the thin skull rule established in the case of R v Blaue[25] states that the defendant must leave the victim as he found them. Whether Crispin suffered from a pre-existing condition, Andrew is still liable for his death.

The next step would be to determine if Andrew had the mens rea for murder which is intention. Crispin’s death could be viewed by the jury as a natural and probable consequence of being hit in the head with an ashtray by Andrew. Furthermore, pursuant to s 8 Criminal Justice Act[26] the jury is prohibited from applying an objective test rather than a subjective one when deciding if Andrew had intention. This was established in the case of Hancock and Shankland[27] where murder convictions were reversed as a result of the defendants not intending to cause death as they dropped the lumps of concrete of the bridge to block the road to the mine and not cause death. The convictions were overturned as the possibility of death was not a natural consequence of their actions and this was determined by examining the evidence from the perspective of the defendants. In determining if Andrew had the required intent, it is important to consider how likely the result which stemmed from Andrew’s act was as well as if he foresaw that consequence. The jury would have to determine whether it was a virtual certain that death would occur from being hit with an ashtray/ that death was a natural consequence of being hit with an ashtray to be able to infer intent[28].

However, it could be argued that is not a virtual certainty that if one gets hit with an ashtray they will die. Furthermore, there is not enough information on the amount of force exerted or the material composition of the ashtray could have caused grievous bodily harm. Therefore, the prosecution should aim to bring a claim for manslaughter as without intention there cannot be murder.

In order for the prosecution to bring an involuntary manslaughter by an unlawful act charge against Andrew they must establish all elements of the actus reus. In this case that the death arose as a result of an unlawful act and not an omission[29] and that the unlawful act committed was a crime[30] as well as creating a risk of serious harm but that harm must not be as grave as grievous bodily harm. The facts state that Andrew struck Crispin in the head with an ashtray this may constitute an assault occasioning actual bodily harm[31] as well as being perceived as a dangerous act. To determine if Andrew’s action constituted actual harm an objective test must be applied to see if a reasonable sober man would recognize the harm in Andrew’s actions[32]. It is arguable that the reasonable sober man would view being struck in the head with an ashtray as harmful depending on the material composition and the amount of force exerted. And that the actions of Andrew resulted in the death[33]

The mens rea for assault occasioning actual bodily harm and unlawful act would be the same. The mens rea could be intention or recklessness. in this case when applying the Cunningham recklessness test it is plausible to say Andrew foresaw a risk that Crispin would end up serious injured if not dead from this strike to the head.

Defences

Andrew may also seek to try and benefit from the defense of insanity and claim he was insane at the time of Crispin’s killing occurred, in order to benefit Andrew’s defense would have to establish the elements set out in the M'Naghten rules[34] which include; that he possessed a deficiency with his reasoning and not merely short periods of inattentiveness[35]. He must also establish that this deficiency resulted from a disease of the mind and as Andrew was suffering from clinical depression which may be considered an unorthodox medical condition in the specific defense of insanity however as in the case of R v Burgess[36] where a sleepwalker was given a verdict of not guilty by the defense of insanity, unorthodox diseases as such can be seen to be accepted. Andrew must also establish that he did not know what he was doing or that what he was doing was wrong unlike the case of R v Windle[37] where at the defendant’s arrest he uttered words which illustrated he was aware of his actions and their effect. However as we are told that he consumed medication this could be interpreted as an external factor or an outside source this would better suit him for the defense of non-insane automatism.

Andrew could rely on the defense of non-insane automatism. For this, he must establish that he suffered an overall loss of control as any element of consciousness and self-control presented in evidence would lead to a failure of this defense as established in Broome v Perkins[38] . In this case, the facts do no mention Andrew exercising any form of restraint which could reflect that he possessed any iota of self-control. Furthermore, Andrew would also have to demonstrate that the cause of the automatism was external. In this case we are told Andrew consumed drugs prescribed to him for his depression and we are not told he suffers from any disease of the mind, which would be regarded as internal factors and qualify him better for a defense of insanity rather than automatism.

According to the non-insane automatism established in R v Hennessy[39] , Andrew would have to prove that the automatism was not self-induced. The facts states that Andrew shared a bottle of wine with Bettina whilst he was on prescribed medication, this can be viewed by the court as Andrew causing his own loss of self-control and therefore disqualify him from the benefits of the defense of non-insane automatism[40].

As previously stated in relation to his possible defense for Bettina, Andrew may also claim to benefit from the partial defense of diminished responsibility.

[1] Jeremy Horder, Ashworth's Principles Of Criminal Law (Oxford University Press 2016).

[2] R v Clegg [1995] 1 AC 482

[3] R v White [1910] 2 KB 124

[4] R v Smith [1959] 2 QB 35

[5] R v Hennigan [1971] 3 All ER 133

[6] Jeremy Horder, Ashworth's Principles Of Criminal Law (Oxford University Press 2016).

[7] R v Woollin [1999] AC 82

[8] R v Matthews and Alleyne [2003] EWCA Crim 192 (CA)

[9] Coroners and justice act 2009, S54

[10] Coroners and justice act 2009, S 55

[11] R v Clinton [2012] EWCA Crim 2

[12] Homicide act 1957, S 2

[13] Coroners and Justice act 2009, S 52

[14] R v Gittens (1984) 79 Cr App R 272

[15] R v Dix (1982) CA

[16] R v Khan [2009] EWCA Crim 1569

[17] A-G's Ref (No 3 of 1994) [1997] 3 WLR 421

[18] Mitchell B, 'Problems with the Interpretation of Murder.' (1986) 50(1) J Crim L 76

[19] R v Poulton (1832) 5 C & P 329

[20] Infant Life (Preservation) Act 1929, S 1,2

[21] R v Clegg [1995] 1 AC 482

[22] R v White [1910] 2 KB 124

[23] R v Dyson (1908) 2 JCB 454

[24] R v Smith [1959] 2 QB 35

[25] R v Blaue (1975) 61 Cr App R 271

[26] Criminal Justice Act 1967, S 8

[27] Hancock and Shankland (1986) HL

[28] R v Nedrick (1986) CA

[29] R v Lowe [1973] QB 702

[30] R v Franklin (1883) 15 Cox CC 163

[31] OffencesAgainst the Person Act 1861, S 47

[32] R v Church [1965] 2 WLR 1220

[33] R v Cato (1976) 62 Cr App R 41

[34] Taylor HE, 'The M'Naghten Rule.' (1951) 2(2) Syracuse L Rev 349

[35] R v Clarke [1972] 1 All ER 219

[36] R v Burgess [1991] 2 WLR 1206

[37] R v Windle [1952] 2QB 826

[38] Broome v Perkins [1987] Crim LR 271

[39] R v Hennessy [1989] 1 WLR 287

[40] R v Bailey [1983] Crim LR 353