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Considering the deaths of Stephen and Lucy, we will advise Ruth concerning her
liability for each of their deaths and whether any defences could apply to the
scenarios at hand. Each victim will be dealt with in turn and where any aspect of the
laws discussed give rise to debate, it will be critically evaluated. With issues that have
the potential to raise more than one offence, the most serious will be dealt with first,
and then worked downward until liability for a less serious crime can be established.

The first issue to be addressed is the death of Stephen, which was concluded to
be a death as a result of drowning. As someone is dead, the offence of murder is the
starting point of analysis. The modern definition of murder is derived from Cokes
seventeenth century book1 stating that it is, ... the unlawful killing of a reasonable
person in being and under the Kings peace with malice aforethought, express or
implied.2 The actus reus will be evaluated first, and the necessary mens rea of the
offence will be dealt with subsequently.

As murder is a result crime, there must be an act or omission that causes the
resulting death.3 In our case, there are two separate actions that form the conduct
necessary to satisfy this requirement, the stabbing of Stephen and the dragging of his
body into the lake. Lord Reid in Thabo Meli v The Queen first conceived the concept
of it being impossible to divide up what was really one transaction, even when two
1 Coke's Institutes, Pt. III (1797 ed.), pp. 47-52, 3 Inst 47)
2 Child, John, and D. C. Ormerod. (2015) "Murder. Smith & Hogan's Essentials of Criminal
Law. Oxford: Oxford UP. pg.145

3 ibid., p. 147
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individual acts were performed.4 This concept will be discussed in more depth during
the mens rea analysis. Killing someone under the Queens peace is the next aspect
of actus reus that is required in order for an offence to be punishable in English law.
When a soldier or police officer kills in the heat of war, and in actual exercise thereof,
or name of preserving the Queens Peace will not be liable for murder. 5. In regards
to this concept, courts have adopted a policy approach since retreating from this
ideology and imposing liabilities would cause the police, or anyone charged with
protecting such peaces ability to perform their function, to be impeded.6 In our
scenario, this is a moot point, as Ruth is not charged with any duty that would fall
under this umbrella, and would therefore be liable for murder. The killing must also
be unlawful, which means that it is done without a lawful excuse. There are limited
ways to justify a killing, thus making it lawful and avoiding the full sentence
associated with murder. An example is self-defence, which can justify a killing in
order to protect ones private or public interests as long as there is a sufficient trigger
and that the response was reasonable.7 As there is not enough evidence that could
suggest that self-defence could be applicable, the death of Stephen would be
considered unlawful in the eyes of the court. The victim must be a person under the
law, which has been defined clearly as when they are alive after being fully expelled
form the womb.8 Stephen is an adult, and therefore would clearly fall under this
4 Thabo Meli and Others v The Queen [1954] 1 W.L.R. 228 at 230.
5 Child, supra. p. 147
6 Carson, David. (2010) "Suing Detectives." The Police Journal 83(1): pg. 15. Westlaw UK.
Web. 27 Nov. 2015.

7 Attorney General v Dwyer [1972] I.R. 416 at 429

8 Rex v Ann Poulton, 172 E.R. 997 per Mr. Justice Littledale
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definitions umbrella. As these basic criteria are all met, it is therefore necessary to
establish that Ruths actions caused the resulting death.

To determine causation in fact, it must be shown but-for Ruths actions, the end
result would not have occurred. In the case of R v White9, the defendants act of
putting cyanide in his mothers drink with the intention to kill her was not the factual
cause as she was found to have died from an unrelated cause. Our case differs, as
Ruths act of stabbing Stephen and dragging him to the water are essential to
Stephens death. If the separate actions of stabbing and dragging the body are dealt
with individually, Piggot B. of R. v Benge (1865) is the authority that establishes that
the act does not have to be the sole cause, but a substantial cause of it. 10 Without
more information about the damage caused by the knife stabbing, no factual
causation can be drawn between how Stephen died and this act alone.

By

determining that Ruths actions, bundled together, caused the end result, we can
determine that there is a causal chain in fact as it would not have happened
otherwise. The next step is to determine whether the defendants actions created a
cause in law by establishing that the conduct contributed to the result, regardless of
whether it was the sole or main basis. The case of R. v Kimsey outlines that the
defendants actions must be substantial, more than slight or trifling 11, which is
normally satisfied after establishing factual causation, but cannot always be assumed

9 Redgina v White [1910] 2 KB 124

10 Regina v Benge and Another (1865) 176 E.R. 665 at 668.
11 Regina v Kimsey [1996] Crim LR 35
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as the act could be negligible in relation to the ultimate result. 12 The actions of the
defendant must also been deemed blameworthy in order to filter out conduct that,
while wrongful, plays no role in the final result. The Supreme Court in R. v Hughes
cemented this idea by determining that the uninsured driver of a car involved in an
accident, must have more than a minimal fault in order to be considered
blameworthy, especially where the victim contributed heavily to the result.13 The
criticism of legal causation revolves around the unstable doctrine that is being used
by the courts and the shift to a more policy-driven approach applied on a case-tocase basis.

Sullivan and Simester argue in their article that without a firmer

causation doctrine, courts become free to choose at random whatever rule of

"causal" attribution they are minded to impose and that ad hoc resolutions will be
favoured as dedicated rules are non-existent.14 As much as it has become quite a
subjective test, this seems the best way to allow morality of actions to be weighed
and not have innocent conduct caught in the wide net of causation if left to the
factual test on its own. A defendants actions must also be the operative cause of
the result, which can be broken by intervention of the defendant, natural events, the
victims actions and acts of third parties. It is rare that a defendants own actions will
result in a break of the chain, and therefore any subsequent act will be grouped as a
single transaction as outlined above and will be elaborated on subsequently.15
12 Child. supra. p.63.
13 Regina v Hughes [2013] UKSC 56
14 Sullivan, G.R., and A.P. Simester. (2012) "Causation without Limits: Causing Death While

Driving without a Licence, While Disqualified, or without Insurance." Criminal Law Review 10.
p. 753-766. Westlaw UK. Web. 28 Nov. 2015.

15 Child. supra. pg.145.

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Grouping the stabbing as well as the dragging of Stephens body into the lake
together fulfills all the elements of legal causation. Individually, the stabbing would not
be considered an operative cause, and would allow her conduct to fall between the
cracks of the law. By combining both acts, it is clear that there is a factual and legal
chain of causation, which completely achieves the criteria of actus reus for murder.

Liability for murder requires mens rea, or the mental element of the offence to be
proven as well. The definition of mens rea provided by Coke outlines the need for the
defendant to have committed the actus reus with malice aforethought.16 Lord
Hailsham forms the current approach to this requirement in R. v Cunningham as an
intention to kill or endanger life. 17 The coincidence of mens rea and the actus reus
that causes the final result is necessary to assign liability and find a defendant guilty.
Where there is an intention to cause death at the time of the appropriate actus reus, it
is a straightforward analysis, but becomes complex when the only mens rea is to
cause grievous bodily harm. Per Viscount Kilmuir L.C in DPP v Smith, the definition
of GBH was concluded to be no more and no less than "really serious. 18 Steve
Forster argues that it is a public policy decision to include intent to cause GBH in a
conviction for murder. He concedes that there is difficulty distinguishing between
intents for murder, attempted murder and GBH and should thus be a focus main topic
for reform. The most thought provoking aspect of the article states that

16 Coke's Institutes, Pt. III (1797 ed.), pp. 47-52, 3 Inst 47)
17 Regina v Cunningham [1982] A.C. 566 at 575.
18 DPP v Smith [1961] AC 290 at p. 331.
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A defendant should not be permitted to escape a conviction for murder if

the evidence shows that death occurred as a direct result of their assault
intended to result in GBH. But if no death occurs and the offender
intended to do really serious harm, then this amounts to a s.18 offence,
not attempted murder. In the strict sense this is potentially illogical but is
justified both in terms of policy and practice.19

The Law Commission has proposed to broaden the statutory offences to include
more specific aspects and thus aid courts in handing down more balanced
judgments.20 The Law Commission has also been condemnatory of violations against
the person and the complicated wording included in the statutory offences.21 The
argument for keeping the GBH intent in the mens rea for murder seems to narrowly
outweigh the benefit of attempting a tiered analysis, which would most likely create
more confusion.

It may draw in some instances where death is the

unfortunate/unintended result, but as this is a serious enough crime on its own, the
courts should use their expertise to determine a sentence based on the context of the
case. In our scenario Ruth plainly has direct intent to cause serious bodily harm to

19 Forster, Steve. (2015) "Defining the Mens Rea in Criminal Attempts Part 1." Criminal
Law & Justice Weekly. 16. pg. 322-324. LexisNexis Academic [LexisNexis]. Web. 28 Nov.
2015. p. 323.

20 The Law Commission: Murder, Manslaughter and Infanticide (Law Com No 304. 2006)

Some suggestions in their reports include, but not limited to; killing through gross negligence
causing death, killing through a criminal act, intending to cause injury, participating in a joint
criminal venture.

21 The Law Commission: Legislating the Criminal Code: Offences Against the Person and
General Principles (Law Com No 218. 1993) Main points include: the language used is
ambiguous and archaic, as mentioned above, the structure of the offences and the
effectiveness of the current law.

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Stephen, firstly by bringing a knife, then stabbing him in the chest and should be
liable for the harm it causes.

Stephens death was concluded to be drowning; therefore it is the dragging of the

body that is integral to finding Ruth guilty of murder. As she does not possess the
necessary intent of murder or GBH at the time of the second act, there is an issue of
coincidence. This challenge was dealt with in the case of Thabo Meli v The Queen
where Lord Reid concluded it was:

impossible to divide up what was really one transaction... There is no

doubt that the accused set out to do all these acts in order to achieve
their plan...22

In the case at hand, Ruth did not have any sort of premeditated plan for murder, but
as her two acts were of the same nature and she had a direct intent to cause GBH,
they would conform to Lord Reids meaning of it. In the case of R. v Church where
Edmund Davies J., reiterated the same rationale as Lord Reid, and found that the
single transaction approach could be used as long as nothing happened between
the infliction of the injuries and the decision to throw the body into the water. 23 Since
we are told that Ruth believes Stephen to be dead, we can conclude that her actions
would be grouped together based on the decisions in the cases mentioned above. In
the case of R. v Le Brun, Lord Lane C.J. says that if he was trying to assist his wife,
22 Thabo Meli and Others v The Queen. supra. at p. 230.
23 Regina v Church [1966] 1 Q.B. 59 at p. 70.
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the chain of causation would have been broken and the nexus between the two
halves of the prosecution case would not exist. 24 As a caveat, if that were the case
with Ruth, it would remove the ability to treat both acts as a single transaction and
make her prosecution for murder nearly impossible.

It is worth noting that in the current problem, the partial defence of loss of control
could be raised to lower Ruths culpability based on the fact that they were arguing
violently. In order to use this defence, there must be a significant trigger and a
reasonable response by the defendant.25 Without more specifics about the argument,
we cannot surmise whether there was an appropriate trigger as per the definition set
out in section 55 of the Coroners and Justice Act 2009.26 Unless the threat to Ruth
was quite substantial, stabbing him and dragging his body into the lake would not be
considered reasonable as outlined in section 76 of the Criminal Justice and
Immigration Act 2008.27 Ellis Kewley is critical of the current statutory law, even
though she admittedly agrees that it is a vast improvement over the old defence of
provocation.28 In the case of R. v Kiranjit Ahluwalia, the defendant poured petrol and
24 Regina v Le Brun [1992] Q.B. 61 at p. 71.
25 Coroners and Justice Act 2009 s. 54
26 Coroners and Justice Act 2009 s. 55. This includes fear of violence to themselves or

another, things said or done that cause the defendant to be justifiably wronged or are very
serious, while also eliminating sexual infidelity.

27 Criminal Justice and Immigration Act 2008 s. 76. (3) The question whether the degree of
force used by the defendant was reasonable in the circumstances is to be decided by
reference to the circumstances as the defendant believed them to be.

28 Kewley, Ellis. (2015) Should the loss of control defence be maintained? N.E.L.R. 2015,

3(1), 55-59 at p. 58. Under the Homicide Act 1957 s. 3. Provocation is defined as: Where on a
charge of murder there is evidence on which the jury can find that the person charged was
provoked (whether by things done or by things said or by both together) to lose his selfcontrol, the question whether the provocation was enough to make a reasonable man do as

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burned her sleeping husband after suffering prolonged domestic abuse. This was
deemed to have been too calculated and not a valid loss of control. Kewley believes
that as long as the definition of loss of control is given a narrow interpretation, it will
fail in protecting women from their abusers. 29 Current laws have attempted to close
this loophole by eliminating the sudden restriction to loss of control, but discretion by
judges is still a dominant factor in a trial. 30 Without more background information that
could be used to give this partial defence traction, it would not be helpful to her case.
As Ruths action of stabbing Stephen and subsequently dragging his body into the
water are of a similar kind, they would be seen as a single transaction and therefore
satisfy the actus reus and mens rea necessary to sentence her for the offence of
murder.

Next, Ruths liability for the death of Lucy will be considered by evaluating
whether her actions and mental state satisfy the offence of murder or a substitute
offence. The actus reus for murder, ... the unlawful killing of a reasonable person in
being and under the Kings peace with malice aforethought, express or implied, 31
applies to our case as there is an unlawful killing. Ruths action of striking Lucy and
causing her death satisfies all the basic elements of the actus reus. The punch was
hard enough to cause Lucy to stumble, and qualify the punch as factually causing the
he did shall be left to be determined by the jury; and in determining that question the jury shall
take into account everything both done and said according to the effect which, in their opinion,
it would have on a reasonable man.

29 Kewley. ibid. at p. 56.

30 Coroners and Justice Act 2009 s. 54(2)
31 Coke's Institutes, Pt. III (1797 ed.), pp. 47-52, 3 Inst 47)
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death of Lucy, even though her falling on the rocks was the actual explanation. As per
Piggot B., it was enough that any act was the substantial cause of it 32 and with the
expanded definition of Goff L.J. in R. v Pagett.33 Both definitions can be applied to
the facts, thus allowing the conclusion that there is a factual link between the punch
and the death. Following the outline of legal causation described in relation to
Stephen, Ruths strike to Lucy also fulfills the requirements of a legal chain of
causation as it is substantial, worthy of assigning blame and was clearly an operative
cause of death. Where this differs from the liability towards Stephen is the issue of
infection contracted at the hospital, which was also confirmed to be a cause of death.
Criminal liability is manifested by the link between the act and the consequence,
which must be unbroken.34

This gives rise to the discussion of novus actus intervieniens35 and whether the
hospitals role is enough to break the chain of causation and absolve Ruth from
liability. The case that could potentially help her in this circumstance is that of R. v
Jordan.36 A patient was treated in way described as palpably wrong37 by Hallett J.,
and thus sets the standard at which medical negligence will be considered enough to
32 Regina v Benge and Another (1865) 176 E.R. 665 at p. 668.
33 Regina v David Keith Pagett (1983) 76 Cr. App. R. 279 at p. 288. Goff L.J. expands on the
definition of causation given by Piggot B. by allowing causation to be found when an act
contributed significantly to that result

34 Child. supra. p. 64
35 Child. supra. p. 65. Where there is a new intervening act this may break the chain of

causation removing liability from the defendant. The legal test applicable will depend upon
whether the new act was that of a third party or an act of the claimant.

36 Regina v Jordan (1956) 40 Cr App R 152

37 ibid., at p. 157.
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become a valid novus actus intervienens.

As we are not given comprehensive

information about the standard of care received at the hospital, the ensuing cases of
R. v Smith38 and R. v Cheshire39, which have limited the potential of this argument,
are more applicable. In R. v Smith,40 Lord Parker C.J. states that if at the time of
death the original wound is still an operating cause and a substantial cause, then the
death can properly be said to be the result of the wound, albeit that some other cause
of death is also operating. In R v Cheshire, Beldam L.J. narrows the potential even
more by saying that;
unless the negligent treatment was so independent of his acts, and in
itself so potent in causing death, that they regard the contribution made
by his acts as insignificant, the original act by the defendant should not
be disregarded.41

It is cited plainly in our case that the head injury caused by the hit to Lucy was one of
the two factors that caused her death and without stronger proof of medical
negligence; Ruths act alone would be enough to prove legal causation.

The mens rea of murder, mentioned earlier, requires there to be direct or

oblique intention to cause death or GBH. For direct intent, the defendant must desire
the result and without obtaining this result, would consider the enterprise to be a

38 Regina v Smith [1959] 2 Q.B. 35

39 Regina v Cheshire [1991] 1 W.L.R. 844
40 Regina v Smith supra. at p. 42-43
41 Regina v Cheshire. supra. at p. 852.
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failure.42 Ruths mental state during the act of hitting Lucy cannot be said to fully
qualify the requirements of direct intention. When the direct intention is in doubt or
cannot be found, there is a possibility of having oblique intention. This is where the
defendant commences a course of conduct to bring about a desired result, knowing
that the consequence of his actions can most likely bring about another outcome. 43
The test utilized by courts to determine oblique intention is laid out in the case of R. v
Woolin44, where to qualify, the defendant must foresee the result to the degree of
virtual certainty, which at first instance is determined objectively in the eyes of a
reasonable person.45 Ruth could not be said to foresee Lucys death or serious bodily
harm to the level of virtual certainty. Simply hitting someone in the face does not fall
within the wide definition of mens rea for murder and would thus force prosecution to
seek the lower offence of involuntary manslaughter.

The type of involuntary manslaughter that is applicable to the current case is that of
unlawful act manslaughter or constructive manslaughter, which is based on the
commission of a criminal offence. 46 Lord Salmon in DPP v Newbury states that
someone is guilty of manslaughter if it is proved that he intentionally did an act which
was unlawful and dangerous and that that act inadvertently caused death. 47 It must
be shown that the base offence had the necessary subjective mens rea and that it
42 Child. supra. p. 95.
43 Child. supra. p. 96.
44 Regina v Woollin [1999] 1 A.C. 82
45 Child. supra. p. 99.
46 Child. supra. p. 182.
47 Director of Public Prosecutions v Newbury [1977] A.C. 500 at p. 507
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was an intrinsically criminal offence as per Lord Atkin in Andrews v DPP.48 The
current law specifies that all elements of the unlawful offence must be fully satisfied
and it must not be a positive act, not omission, as per Phillmore L.J in R. v Lowe.49
The base offence must be dangerous to the victim and also be recognized by all
sober and reasonable people to subject the other person to, at least, the risk of some
harm, albeit not serious harm.50 In order to qualify as being dangerous to the victim
the harm must be: objectively foreseeable, interpreted narrowly and be legally
recognized.51 The final criteria that must be met is that the base offence must cause
the death of the victim, which uses the same rules of causation mentioned previously
in terms of actus reus. Ruths act of hitting Lucy would qualify as a criminal offence
under section 47 of the OAPA 1861.52 Lord Jauncy of Tullichettle in R. v Brown
clarifies that the actus reus of battery requires only that there be hostile contact. 53
Ruth is said to have the intention to cause minor harm to Lucy, which satisfies the
mens rea of battery established in R. v Venna,54 and consequently the mens rea
required under section 47 as well. As we are not given details about occasioned
harm resulting from the initial hit, under the broad definition of any hurt or injury that

48 Andrews; v Director of Public Prosecutions [1937] A.C. 576

49 Regina v Lowe [1973] Q.B. 702 at 709.
50 Regina v Church. [1966] 1 Q.B. 59. Per Edmund Davies J. at 70
51 Regina v Church. ibid. at 70
52 Offences Against the Person Act 1861s. 47. Whosoever shall be convicted upon an

indictment of any assault occasioning actual bodily harm shall be liable to imprisonment for a
term not exceeding 7 years and whosoever shall be convicted upon an indictment for a
common assault shall be liable, at the discretion of the court, to be imprisoned for any term
not exceeding two years

53 Regina v Brown (Anthony) [1994] 1 A.C. 212 at p. 244.

54 Regina v Venna [1976] Q.B. 421
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is calculated to interfere with the health or comfort,55 it is safe to assume that if the
strike were hard enough to cause Lucy to stumble, it would qualify. Ruth would be
found guilty of involuntary manslaughter as she has met the requirements for the
base offence of battery, and even without foresight of the stumbling and head trauma,
would be found liable for Lucys death.

A more detailed look to the potential

negligence of the hospital would be the obvious way to lower her culpability, but with
the information available, no definitive conclusion could be drawn.

Involuntary manslaughter is wrought with confusion and criticism, which has

led to a Law Commission recommendations for comprehensive reforms. In the 2006
recommendation Murder, Manslaughter and Infanticide, the Commission seeks to
put a narrower scope for unlawful act manslaughter to include a stricter requirement
for mens rea. Ashworth puts forward a specific criticism of manslaughter laws being
too broad in relation to duty-oriented manslaughter convictions, saying the law should
be as clear as possible if life imprisonment is a discretionary option. Unless the
concept of assumption of responsibility can be explained in greater detail, preferably
with widely-publicized statutory illustrations to inform people about the types of
situation in which the concept applies,56 the manslaughter offence should not be
available. The courts have adopted an ad hoc approach to applying the owing of a
duty of care in manslaughter trials. Ashworth believes that not having a stable and
predictable doctrine, it will lead to more injustice and the potential for wrongful
55 Regina v Miller [1954] 2 Q.B. 282. per Lynskey J. at p. 292.
56 Ashworth, Andrew. (2015) Manslaughter by omission and the rule of law. Crim. L.R. 8.
pg. 563-577. p. 565.

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convictions.57 This criticism is quite particular, but echoes the common disapproval
heard in relation to the harshness of manslaughter sentences and the ever-changing
criteria being used by the courts.

57 ibid., p. 576.
15