**(a) If you were a prosecutor, what would be your preferred charge of homicide, murder or manslaughter, in relation to Colin?**
The preferred charge in relation to Colin would be unlawful act manslaughter.
**(b) Give reasons for your choice in (a) above.**
A charge of murder would require the prosecution to prove that Colin had the intention to kill or cause grievous bodily harm (GBH) to Duncan (*R v Vickers* [1957] 2 QB 664). The act of prodding someone in the chest with a finger, while an act of aggression, is very unlikely to be sufficient for a jury to infer such a high level of intent. It is not an act from which death or GBH is a virtual certainty, as required for oblique intent (*R v Woollin* [1999] AC 82).
Therefore, unlawful act manslaughter (UAM) is the more appropriate charge. This requires proof of four elements (*DPP v Newbury* [1977] AC 500):
1. Colin must have done an intentional act. He intentionally prodded Duncan.
2. The act must be unlawful. The prod constitutes a battery, which is the intentional application of unlawful force to another (*Collins v Wilcock* [1984] 1 WLR 1172).
3. The act must be dangerous. The test is objective: would a sober and reasonable person realise that the act carried a risk of some physical harm, not necessarily serious harm? (*R v Church* [1966] 1 QB 59). A hard prod in the chest during a heated argument would likely be seen as carrying a risk of some harm.
4. The act must cause the victim’s death. This is subject to the causation arguments below, but on the face of it, the prod led to the sequence of events resulting in death.
**(c) If you were Colin’s defence counsel, what are the arguments you would advance in favour of the proposition that the chain of causation, linking Duncan’s death to Colin’s prodding him in the chest, was broken?**
As Colin’s defence counsel, I would argue that the actions of Bjorn, the first-aid trained teacher, constituted a *novus actus interveniens* (a new intervening act) which broke the chain of causation.
The legal principle is that medical treatment will only break the chain if it was “so independent of the defendant’s act and in itself so potent in causing death” that the defendant’s actions are rendered insignificant (*R v Cheshire* [1991] 1 WLR 844). The argument would be that Bjorn’s chest compressions were not just negligent but positively harmful, compounding the injury to a fatal degree. We would contend that this was ‘palpably wrong’ treatment, similar to the exceptional case of *R v Jordan* (1956) 40 Cr App R 152. The chest compressions were the direct and overwhelming cause of death, making Colin’s initial prod merely part of the background history rather than a substantial and operating cause of death at the time Duncan died (*R v Smith* [1959] 2 QB 35).
**(d) If you were Colin’s defence counsel, what defence(s) would you seek to advance in answer to a charge of homicide, whether murder or manslaughter?**
The primary defence would be the causation argument outlined in (c). If the chain of causation is broken, Colin cannot be liable for any form of homicide. A further argument would be against a murder charge, based on a lack of the required *mens rea*. We would argue that Colin had no intention to kill or cause GBH. For a charge of UAM, the only remaining argument, if causation is established, would be to contend that the act of prodding was not ‘dangerous’ under the objective test in *R v Church*. We could argue that a reasonable person would not foresee any physical harm resulting from a simple poke with a finger.
**(e) If you were prosecuting counsel, how would you respond to defence counsel’s arguments in (c) and (d) above?**
In response to the causation argument, the prosecution would state that the law is clear: courts are extremely reluctant to allow medical intervention to break the chain of causation. Bjorn’s actions were a direct response to the life-threatening situation Colin created. Following *R v Cheshire*, only the most extraordinary and unforeseeable negligence can break the chain, which is not the case here. The original injury inflicted by Colin was still an “operating and substantial” cause of death. Furthermore, the ‘thin skull rule’ applies: Colin must take his victim as he finds him (*R v Blaue* [1975] 1 WLR 1411). Duncan’s fractured rib is an existing vulnerability that does not absolve Colin of responsibility.
Regarding the lack of danger, the prosecution would argue that prodding someone hard in the chest during a heated argument is objectively dangerous, as any reasonable person would foresee at least a risk of minor harm, such as bruising or causing the person to fall. That is all the *Church* test requires.
**(f) If you were prosecuting counsel, what would be your preferred charge of homicide in relation to Astrid, murder or manslaughter?**
The preferred charge in relation to Astrid would be gross negligence manslaughter.
**(g) Give reasons for your answer in (f).**
A murder charge would likely fail due to a lack of coincidence between the *actus reus* and *mens rea*. The *actus reus*, hitting Bjorn with the car, occurred when Astrid “momentarily lost control” due to a sneeze, suggesting an involuntary act lacking the necessary intent. Her intention (or at least, her malice) was formed only after the act was complete.
However, a strong case exists for Gross Negligence Manslaughter (GNM). Following *R v Adomako* [1995] 1 AC 171, the prosecution must prove:
1. A duty of care existed between Astrid and Bjorn. By hitting Bjorn with her car, Astrid created a dangerous situation, which placed her under a duty to act to avert or lessen the danger (*R v Miller* [1983] 2 AC 161).
2. Astrid breached this duty. She did so by getting back in her car and driving off, leaving him with severe head injuries.
3. The breach caused Bjorn’s death. Her failure to summon aid was a significant cause of his death.
4. The breach was ‘gross’. A jury would almost certainly find that driving away from a person you have knocked unconscious with severe head injuries is conduct so bad in all the circumstances as to amount to a criminal act or omission.
**(h) Assuming the prosecution were to charge Astrid with murder, and you were counsel for the defence, how would you seek to counter the prosecution’s case that both actus reus and mens rea of murder were present?**
As defence counsel, I would argue that the *actus reus* and *mens rea* for murder did not coincide. The act of hitting Bjorn was involuntary, caused by a sneeze, and therefore cannot form the *actus reus* of murder (*Hill v Baxter* [1958] 1 QB 277). If the prosecution frames the *actus reus* as an omission (failing to help), we would argue that Astrid’s state of mind did not amount to an intention to kill or cause GBH. She was “shocked and raging”, an emotional state not conducive to forming a calculated intent. Her words, “I hope you die,” were an expression of this rage, not a declaration of intent. Her omission did not demonstrate an appreciation that death or GBH was a ‘virtual certainty’ as required by *R v Woollin*.
**(i) How would the prosecution counter the arguments raised in (h)?**
The prosecution would counter by focusing on the omission to act after the duty under *R v Miller* had arisen. They would argue that the combination of Astrid’s recognition of Bjorn, her damning words, and the deliberate act of getting back into her car and driving away, provides compelling evidence for a jury to infer an intention to kill or at least cause GBH. By leaving a man with severe head injuries, she must have appreciated that death or GBH was a virtual certainty.
**(j) Assuming the court finds both actus reus and mens rea of murder present, and you are counsel for the defence, evaluate your chances of success in raising a partial defence of loss of control.**
The chances of successfully raising the partial defence of loss of control under ss. 54-55 of the Coroners and Justice Act 2009 are plausible but face significant hurdles.
The defence would need to satisfy three limbs. First, Astrid’s “raging with fury” suggests a subjective loss of self-control. Second, there was a qualifying trigger under s. 55(4): the sudden recognition of the person she believed was responsible for her son’s recent death would likely be considered a thing done of an “extremely grave character” which caused her to have a “justifiable sense of being seriously wronged”.
The main difficulties lie with the third limb and an important exclusion. The third limb (s. 54(1)(c)) asks if a person of Astrid’s age and sex, with a normal degree of tolerance, might have reacted in a similar way in those circumstances. The circumstances are extremely emotive, which may persuade a jury. However, the prosecution will argue forcefully that Astrid’s actions were motivated by a “considered desire for revenge” (s. 55(6)(c)), which would disqualify the defence. Her statement, “That serves you right,” strongly suggests revenge. The success of the defence would depend on persuading the jury that her actions were a spontaneous reaction to shock and grief, not a considered act of vengeance. Overall, the defence is arguable but its success is far from certain.
References
- Collins v Wilcock [1984] 1 WLR 1172.
- DPP v Newbury [1977] AC 500.
- Hill v Baxter [1958] 1 QB 277.
- R v Adomako [1995] 1 AC 171.
- R v Blaue [1975] 1 WLR 1411.
- R v Cheshire [1991] 1 WLR 844.
- R v Church [1966] 1 QB 59.
- R v Jordan (1956) 40 Cr App R 152.
- R v Miller [1983] 2 AC 161.
- R v Smith [1959] 2 QB 35.
- R v Vickers [1957] 2 QB 664.
- R v Woollin [1999] AC 82.
- Coroners and Justice Act 2009.
