Free Law Essays - Sanjay’s action in cutting the rope was a more than de minimis cause of the serious injury Tania sustained falling down the mountain and could constitute the actus reus of several difference offences.
The most serious of these might be attempted murder. The decision in Whybrow confirmed that an intention to cause grievous bodily harm will not suffice as it will for murder; a specific intention to kill must be proved. Clearly although Sanjay’s aim and purpose was not to kill Tania but to save himself and Rupert, her fall and injuries were an unavoidable consequence of his actions and he arguably, therefore, obliquely intended that result. The decision in Pearman confirms that oblique intention is sufficient mens rea for attempted murder. However, Walker and Hayles confirmed that the standard of foresight remains the test of virtual certainty and that the direction to the jury should be that derived from Nedrick and refined in Woollin. A jury would have to be satisfied that Sanjay had foreseen Tania’s death as a ‘virtually certain’ consequence of his actions. We know that Sanjay thought it likely that Tania would die, but that there was ‘just an outside chance’ that she would not; in my view this better resembles the ‘high probability’ standard in Hyam rejected by later case law than the ‘virtual certainly’ requirement that has now entirely replaced it.
Additionally, the CPS Legal Guidance on Offences Against the Person comment that attempted murder is ‘a difficult allegation to sustain… the courts will pay particular attention to counts of attempted murder and justifiably will be highly critical of any such count unless there is clear evidence of an intention to kill.’
With this in mind, prosecutors may prefer a charge of unlawful and malicious wounding or causing grievous bodily harm (GBH) with specific intent under section 18 of the Offences against the Person Act (OAPA) 1861, particularly since this offence carries a life sentence. I think that Sanjay is likely to be found to have had the foresight of virtual certainty of wounding or GBH that specific intent requires and would therefore have the mens rea for a s. 18 offence.
Nonetheless to ensure a conviction the prosecution may include a lesser s. 20 OAPA charge of unlawfully and maliciously wounding or inflicting GBH in the indictment under section 6(3) of the Criminal Law Act 1967. According to Cunningham the element of ‘maliciousness’ denotes intent to do some kind of bodily harm to another person, or, under Savage; Parmenter, subjective recklessness as to whether such harm may be caused. Mens rea for a s. 20 offence would simply require Sanjay to appreciate that some harm might be caused to Tania, which undoubtedly he did.
The ‘unlawful’ injury might be rendered lawful by Tania’s consent, which she implies as she tried unsuccessfully to cut the rope herself. However, on policy grounds, the law does not allow a person to consent to murder, or according to A-G’s Ref. (No. 6 of 1980), to any injury greater than Actual Bodily Harm.
Sanjay could of course mount a defence to these charges, for example, of self-defence. He may be able to justify his actions under the common law rule in R v Duffy by arguing that he acted in defence of himself and Rupert and that his actions were reasonable given that there was no other way to save the two men’s lives. Re A (Conjoined Twins: Surgical Separation) considered the unusual situation in which a defendant argues self-defence against acts which are neither aggressive nor strictly unlawful. In that case, the condition with which the twins were born meant that Mary was slowly but surely killing Jodie. In the same way, Tania was endangering Rupert and Sanjay. I believe this argument might well be successful and would justify Sanjay’s action, rendering it lawful.
However, as long as the charge is not attempted murder it may be simpler for Sanjay to run the established defence of duress, which removes the element of mens rea altogether. Firstly, it can be said that Sanjay was driven by ‘force of circumstance’ into his actions, as the court described in R v Willer. A threat arose from ‘objective dangers’ threatening both him and Rupert, and the question, according to R v Martin is whether he was acting reasonably and proportionately. Alternatively, since Rupert threatened Sanjay with death or serious injury, under AG v Whelan there could be a defence of duress of threats. Again there is a requirement of reasonableness of the belief under R v Graham, and that his action was proportionate to the harm threatened, under R v Howe and Bannister; R v Burke and Clarkson. However it seems that since Rupert could not have supported two people besides himself for long and the three of them would otherwise have died, there was no other course of action available to them but to cut the rope. His actions were reasonable for the purposes of a duress defence.
Rupert may be liable for secondary participation in Sanjay’s s. 18 or 20 offence. Under AG’s Ref. v Able, any conduct which encourages or influences the principal offender, such as prompting Sanjay to cut the rope and threatening him when he refuses, can render a person an accessory to a crime. Causation need not be established; as long as Sanjay received encouragement from Rupert and went on to act within the scope of his advice, according to the rule in R v Calhaem, Rupert has participated in the commission of the offence and is culpable. Under s. 8 Accessories and Abettors Act 1861 as amended by Sched. 12 of the Criminal Law Act 1977 he is therefore “liable to be tried, indicted, and punished’ as if he had committed the crime himself. However, as an accessory his liability will derive from and depend on Sanjay’s and the mens rea of his offence must be also assessed in relation to Sanjay’s.
Mens rea for accessorial liability requires the accessory to have mens rea in relation to his own conduct, and to the acts or mental state of the principal. For Rupert, this means that he must both intend to encourage Sanjay to cause the injury, and intend to provide help or advice to him in doing so. Under Powell; English this requires Rupert to intend or foresee as a virtual certainty that Sanjay will commit his offence with the requisite mens rea. Furthermore, under Bourne and Cogan and Leak Rupert can be held liable and sentenced as if he were the principal offender even if Sanjay is acquitted after a successful defence of self-defence, duress or necessity. However, Marks confirmed that he is still able to run all available defences and in my view his argument for defences of self-defence and duress of circumstances would be much the same as Sanjay’s.
If Tania had died, Sanjay would have committed the actus reus of murder, the ‘unlawful killing of a reasonable person who is in being and under the King’s Peace.’ However, the mens rea for murder is the intention to kill or cause serious injury, and although as we have discussed above, foresight of virtual certainty of death would suffice, it seems unlikely that a jury would find that Sanjay had foreseen Tania’s death with that level of certainty. If he was found not to have the requisite mens rea for murder, his charge would drop to manslaughter and would be able, as before, to run a defence of duress. Self-defence may also be open to him; dicta in Re A gave the example of a six-year-old boy shooting a gun indiscriminately in a playground and stated that;
‘in law killing that six-year-old boy in self-defence of others would be fully justified and the killing would not be unlawful.’
It seems that there may now be defence of necessity to homicide, since while this is ‘not a remedy for self-help’ and ‘it [seems] repugnant that the law should recognise in any individual in any circumstance, however extreme, the right to choose that one innocent person should be killed rather than any other’, dicta by Brooke LJ in Re A (Conjoined Twins: Surgical Separation) seem to indicate that where the killing of a person ‘designated for death’ can save the lives of others, it may be possible to justify it.
However, Rupert saw it as virtually certain that Tania would die if the rope were cut. If the fall resulted in her death, and Sanjay’s conviction was dropped to manslaughter solely on the basis that he lacked the mens rea for murder, the court in Howe confirmed that he can still be convicted of murder.’ Nonetheless, he will still be able to run the defences of self-defence, necessity and even duress of circumstances, under the authority of Lynch v DPP, in much the same way.
Bibliography
ELLIOTT & QUINN, 2004, Criminal Law, 5th Edn, London, Longman
REED, A & SEAGO, P, 2002, Criminal Law, 2nd edition, London, Sweet and Maxwell.
SIMESTER, A & SULLIVAN, 2003, G, Criminal Law: Theory and Doctrine, 2nd edition, Oxford, Hart Publishing
CLARKSON, C & KEATING, H, Criminal Law: Texts and Materials, 5th Edition, London, Sweet & Maxwell
