STUDENT ID NO.

77353033
APPLIED CRIMINAL LAW FORMATIVE

In this scenario, the key legal issue is whether David will be liable for the homicide offence
of murder.
Lord Coke defined Murder as the unlawful killing of a reasonable creature in being and under
the Queen’s peace with malice aforethought1. In simple terms, it is the unlawful killing of a
human being with intention to kill or intention to cause grievous bodily harm. For the
successful conviction of the defendant, the prosecution must prove beyond reasonable doubt
that the defendant indeed caused the death of the victim by establishing both the presence of
the actus reus and mens rea elements of the offence and there must be no defence available to
the defendant for a full and successful conviction.
The actus reus elements of the offence are found in the latter definitihon which are the
unlawful killing of a human being. Unlawful killing can be done by an act or omission, but in
relation to this scenario, the act will be considered rather than an omission since David’s
actions led to the death of the victim being Shaun. A human being in this instance cannot be a
foetus but must have been born when it sustained the injury2, and the victim must have been
brain function at the time of the incident3. Under the Queen’s peace virtually means that the
defendant must have caused the death of the victim, where the victim should not have been
an enemy at a time of war. In this case David’s act of engaging into a fight with Shaun
resulted in the unlawful killing of Shaun, who was a human being with brain function at the
time of the incident and it is apparent that Shaun was not an enemy of war during the
occurrence of this incident therefore the actus reus of the offence of murder is met due to
these preceding facts.
The prosecution also has to prove (beyond reasonable doubt) that the defendant’s actions
were the sole cause of the victim’s death and this can be done using the two types of
causation which are the factual causation and legal causation. Factual causation consists of
the “but for” test4 where it has to be established in fact that the defendant was the cause of the
victim’s death by asking the question “but for the defendant’s actions, would the victim’s
death taken place?, if yes, then the defendant will be deemed to be the sole cause of the
victim’s death because of his actions, if no, then the defendant will not be held liable as he is
not the sole cause of death. With legal causation, the result must be caused by a culpable act,
hence there is no requirement that the act of the defendant was the only cause, and there is no
‘novus actus interveniens’ meaning ‘new intervening act’. The result must be caused by a
culpable act, the defendant must take the victim as they found them, which is the ‘thin skull’
rule5. In this scenario, but for David’s action of engaging into a fight with Shaun, his death
would not have taken place as a result.

1
Sir Edward Coke (Institutes of the Laws of England, 1797)
2
Attorney General’s Reference(No.3 of 1994) (1997)
3
R v Malcharek and Steel [1981]2 ALL ER
4
R v Pagett (1983) 76 Cr App R 279
5
R v Blaue [1975] 1 WLR 1411
The prosecution also must prove that the defendant had the mens rea6, that is the intention to
kill the victim or intention to cause grievous bodily harm to the victim. It must be further
proved whether it was direct, where the death was desired, or oblique intention, where the
victim’s death was a virtual certainty and the defendant knew this. In this scenario, David had
oblique intention, that is the indirect intention to cause GBH to Shaun considering that he
engaged in a fist fight against Shaun which could result in GBH occurring as a result.
Due to these facts David could be held liable for murder, but his defence could raise the
defence of loss of self-control. Loss of self-control is a partial defence which if proved
successfully on the balance of probabilities, could lessen his conviction down to voluntary
manslaughter instead of murder. The actus reus of voluntary manslaughter is the same as that
of murder, however that mens rea of the offence has not been fulfilled. Diminished
responsibility will not be a successful defence in this case as David had been voluntarily
drinking alcohol prior to his argument with Shaun so the only available partial defence is loss
of self-control.Loss of self-control can be found in Coroners and Justice Act of 2009 and the
Homicide Act 1957. The elements that must be fulfilled for the defendant to be successful in
this partial defence of loss of self-control come from the qualifying triggers, which are fear of
serious violence intended towards the defendant and secondly, the defendant must have been
seriously wronged. For the purposes of this case, we shall consider the ‘seriously wronged’
trigger, as it was apparent that Shaun ripped the locket from David’s neck, which was
precious to him, and threw it into the sea.
So according to these facts, David will be found liable for the offence of voluntary
manslaughter as the guilty act was present as well as the guilty mind of indirectly intending to
cause GBH was there, but the partial defence of loss of self-control was present which landed
him to be convicted of voluntary manslaughter instead of murder as a result.

BIBLIOGRAPHY
6
R v Vickers [1957] 2 QB 664
Statutes
Coroners and Justice Act 2009
Homicide Act 1957