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Crime X - Mens rea VI

Updated on August 9, 2017

R v Scalley (1995) once again reaffirms that intention is a prerequisite for murder. The accused set fire to a house he used to stay in and the ensuing fire killed a 5-year-old boy. The accused was charged and convicted for murder. The trail judge applied the foresight of consequences test and held that it was probable that the accused’s actions would have dire consequences and convicted accordingly. The accused appealed.

The Court of Appeal quashed the accused’s conviction for murder and held that in order for an accused to be charged with murder the element of intention must be satisfied. The Court of Appeal substituted the conviction for murder with that of manslaughter.

In R v Woollin (1999) we once again look into the ingredients for murder and we weigh the probability of consequences test on one end with the need to establish a clear discernible intention to kill on the other. The accused threw his 3-month-old baby boy on a hard surface and as a result the baby suffered a fractured skull and died. The trial jury directed the jury to the effect that if the accused could foresee that his actions would lead to some sort of serious injury to the child, regardless of the state of mind of the accused, at the time he committed the act, the jury must convict for murder. The jury accordingly found that it was likely that the accused could foresee that his actions would lead to some sort of serious injury to the child and as a result convicted for murder. The accused raised the defense of provocation but the defense was rejected. The accused appealed.

The House of Lords substituted the conviction for murder with that of manslaughter. To obtain a conviction for murder the prosecution must proof beyond reasonable doubt that the accused intended to kill his or her victim and the fact that it was foreseeable that the accused’s action would lead to some sort of injury or other was not sufficient. Intent may be inferred in extreme cases but for intention to be inferred death must be a virtual certainty.

Applying the virtual certainty test to the facts of the case, it cannot be said with a high degree of certainty that death or serious injury would result from the accused’s actions. A lot depends on the evidence that is presented to the court and in this instance in order to establish virtual certainty we have to look into the force of the throw, from what height the baby was throw from etc.

A conviction for murder is not always necessary to make the accused accountable for his or her crimes and sometimes a conviction of manslaughter would suffice.

In R v Janjua & Choudhury (1998) the accused stabbed his victim several times with a knife that was at least 5 inches long. The accused was charged and convicted of murder. It could be said without doubt or with a high degree of certainty that the accused either intended to bring about his victim’s death or cause him or her serious bodily harm.

In R v Gilmour (Thomas Robert) (2000) the accused drove three others to petrol bomb a house in Northern Ireland and three children were killed in the resulting fire. The accused was charged with murder. The accused argued that he did not have the intention to kill and the act was done merely to frighten or scare the occupants. The court had to decide if there was a clear discernable intention to kill or cause grievous bodily harm or otherwise and the court decided that because the prerequisites to murder were not there, the accused could not be convicted for murder and he was convicted instead for manslaughter.

In Re A (conjoined twins), while the case has very little to do with either murder or manslaughter, the facts are particularly poignant. The case involves two conjoined twins, that were joined at the pelvis.

Medical evidence suggested that one twin was dependent on the other and if the doctors failed to operate both twins would die. However, if they did operate the chances were high that one of the twins would survive while the other would inevitable die.

The doctors sought the permission of the parents to operate and the parents refused. The doctors applied to the court to operate and the court after lengthy deliberations allowed the doctors to do so. The case was decided in the House of Lords and the decision is worth reading.

© 2017 Kathiresan Ramachanderam and Dyarne Jessica Ward

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