Criminal Liability Of Kelly’s Case Free Essay Example

In order to consider the criminal liability of Kelly’s case and to advise her it is important to state the cardinal principle of “Actus Non Facit Reum, Nisi Mens Sit Rea”: An individual cannot be made criminally obligated for their outward conduct alone; such act must be joined by an accountable state mind. The prosecution has the burden to proving all the elements of the relevant offences against Kelly beyond all reasonable doubt. This is the “golden thread” of criminal law as pronounced by Lord Sankey in Woolmington v DPP .

The decision will be examined for elements of Murder (it is improbable, yet investigated beneath, that Kelly will be at risk for murder), Manslaughter and sexual assault against a person. Finally, Kelly will be advised on potential defences if there are any.

It is proposed to consider Kelly’s criminal liabilities on both Peter and Dave, which is best to consider both parties thus and continue through the issues raised sequentially.

The principal matter to be considered is Kelly’s criminal liability to Peter.

The potential offense of Murder being analysed, Kelly’s ability of such a wrongdoing ought to be considered, Kelly gives off an impression of being a grown-up who by law is fit for framing a mens rea and accordingly accept a criminal accountability for her action. There are no different facts that show any components that would undermine her being made in charge of her actions.

Furthermore, Kelly’s action must be an act that is voluntary. Lord Denning enunciated “the requirement that it should be a voluntary act is essential in every criminal case” Bratty v AG for Northern Ireland.

The facts does not dispute this as Kelly voluntarily handed Peter the prepared insulin. All things considered, where the respondent is not acting voluntarily the person in question is said to, be acting as an automaton and will not be liable of an offence in light of the fact both the mens rea and actus reus will not be demonstrated.

According to Coke CJ, “murder is when a man of sound memory and of the age of discretion unlawfully killeth·any reasonable creature in rerum natura under the King’s peace, with malice aforethought, either expressed by the party of implied by law, so as the party wounded or hurt etc., die of the wound or hurt etc., within a year and a day·” For the purposes of convenience, we can say that murder is the unlawful killing of a human being under the Queen’s peace with malice aforethought. In any case, it ought to be noted that the ‘Year and a Day Rule’ was annulled in 1996 by the Law Reform (Year and a Day Rule) Act 1996.

Peter is a person who has died because of Kelly’s conduct of giving him a readied insulin which was not a demonstration of self-defence (unlawful) and was not done with regards to the realm from foreign invaders or while putting down an inward rebellion under the Queen’s Peace. This satisfies the actus reus of murder where the confirmation of Kelly’s activity is both the factual and legal reason for Peter’s death.

For the mens rea of murder which has been described as malice aforethought requires proof that Kelly intended to kill or cause grievous bodily harm R v Moloney and established in R v Cunningham, where the House of Lords held the conviction of the defendant who killed a victim by hitting his head with a chair did not intend to kill him but cause grievous bodily harm, and that was enough for conviction.

Kelly evidently did not have a desire, motive or intention to cause the death of Peter as Lord Bridge clarified in Moloney (1985) that intention contrasts from motive and desire. As this is the evidential facts of the case, that it raises questions with regards to the nearness of direct intent in connection to the death of Peter R v Mohan. Similar to the facts, the only objective Kelly had was challenging Peter and Dave to a drinking game, which Kelly pretended to drink vodka yet was water. However, this leaves question with regards to the judiciousness of knowing one’s condition (diabetic) and participating in a drinking game. Asides from that, the facts do not uncover any direct intent as to giving Peter the readied insulin as Peter thought it was heroin. Despite the fact, that Kelly’s reaction to Peter’s subsides foaming from his mouth and falling following infusing, himself does not verify her lack of intention.

Consequently, applying the Nedrick-Woollin oblique test where there is lack of direct intent applies. Lord Lane CJ in the Court of Appeal case of R v Nedrick concluded where the charge is murder and the straightforward heading is not sufficient· the death or serious bodily harm was a virtual certainty (excepting some unexpected mediation) because of the litigant’s actions and that the respondent valued that such was the situation.” Applying the Nedrick-Woollin oblique test there is no indication that injecting insulin was objectively virtually certain to lead to death. There is no sign for example that Kelly gave Peter a sum that was authentically an overdose or that Kelly realized that Peter would endure a response of a genuine kind. On the off chance that the initial segment of the Nedrick-Woollin Test is not fulfilled, Kelly cannot fulfil the test for oblique intent. Kelly could have passed the second part of the test as she valued the reality by not responding to Peter’s quick response of foaming and collapsing, be that as it may, since the initial segment is not fulfilled the test for oblique intent for the most part cannot be satisfied.

Kelly’s malice aforethought falls short of the intent which is required for the offence of murder. However, Kelly’s act of handing a prepared insulin to a non-diabetic person could be in fact administering a ‘poisonous or destructive’ thing or creating a dangerous situation contrary to s.23. In any case, for this to be particularly settled Kelly should have the knowledge that insulin is indeed a noxious thing.

Insulin as a drug is not listed on Misuse of Drugs Act 1971 or Drugs Act 2005 , as a dangerous drug. Nevertheless, there is a possibility of insulin turning out to be a ‘destructive or poisonous’ thing to a person.

Kenneth Barlow (1957) depicts conceivably the harmfulness of insulin to a person. As in the case, Barlow injected his wife Elizabeth with 84 units of insulin, the principal post-mortem examination uncovered no foreign substances in her body, however she had dilated pupils which proposed a type of foreign chemical. Criminologists likewise found that Elizabeth was two months pregnant and unconscious before suffocating (which at first said was the cause of death), and investigators thought about death from insulin infusion. At the point when the second post-mortem examination on Elizabeth was finished, it uncovered two little infusion destinations on her lower back on the two sides. Tests were taken at the cut destinations and affirmed that Elizabeth was infused with insulin. Elizabeth was not diabetic, nor had she been prescribed insulin.

Another case is that of “the Angel of Death” Beverley Allitt, a child serial killer who was indicted for killing four children, endeavouring to kill three other kids, and causing grievous bodily harm to a further six. And her choice of weapon for committing those crimes was ‘insulin’.

Moreover, the first recorded instance of an attempted suicide utilizing insulin was in 1927 and by 1963 there had been an aggregate of 13 cases. Eminently, the Barlow case of 1957 was the primary recorded instance of insulin used to murder and after that it is accounted for that there have been around 50 cases all-inclusive about insulin being utilized either to kill or attempt to kill primarily by therapeutic staff who find the medication less demanding to acquire. Kerkar, examines, there is a comparable impact when an individual, even diabetic takes an overdose of insulin. Whenever left untreated, hypoglycaemia can cause fainting and the individual may likewise lose cognizance. In serious cases, seizures and even death may occur. On the off chance that non-diabetic takes insulin or a diabetic takes a higher portion of insulin than prescribed, it can have dangerous consequences and is a demonstration that ought to never be attempted by any individual.

The potential risk of insulin is broadly not viewed as the peril it can acquire to people that misuse it compared to the classes of drugs under the Misuse of Drugs Act (1971). With this considered, it is clear to state that Kelly would not be liable for murder, as there is no sufficient mens rea, or intention proven to be the case. However, Kelly’s inability to bring help for Peter while he was foaming and collapsed, which inescapable prompted his passing may probably frame the premise of involuntary manslaughter which cover circumstances including litigants whose conducts has prompted the victim’s death although they neither wanted the subsequent death nor predicted it.

An individual liable of manslaughter, constructively, when he commits an unlawful and dangerous act which causes the death of another as established in R v Goodfellow. The ‘unlawful act’ on which is a conviction for manslaughter may be based must be an offense R v Franklin; R v Lamb.

In this case it should be proven that Kelly has committed an offence by unlawfully and ‘maliciously’ administering a noxious or poisonous or destructive thing as to endanger life contrary to s.23 . In R v Cato, the Court of Appeal had no faltering in pointing out heroin was a noxious thing for the purposes of s.23. Lord Widgery, conveying the judgment of the Court, commented that the fact that the individual was an experienced user with a high resilience and improbable to suffer harm was exceedingly irrelevant. Heroin is a noxious thing since it is subject to cause damage in like manner use.

Fastening, Lord Widgery’s judgment it is doubtful that paying little heed to the embodiment of Peter the utilization of the medication insulin in like manner use is at risk to cause damage both a diabetic and non-diabetic individual. Besides, it would have been pointless to demonstrate that Kelly either planned or was careless as to jeopardizing life or that she predicted any mischief. At the point when the administration is direct to the person, the prerequisite of malice is satisfied if Kelly realized that the syringe contained a poisonous substance. Similar to the facts, the noxiousness of insulin is not viewed as such by the law and Peter self-ingested the prepared insulin which breaks the chain of causation.

Considering the ‘result crime’ the test for causation then applies. The courts have reliably expressed that causation is just a question of ‘common sense’ R v Kennedy and it’s anything but an issue of philosophical investigation. The test for causation has two parts the ‘but for’ test , the ‘significant cause’ test and there must be no presence of a Novus actus interveniens. The chain of causation is therefore broken as there is a presence of a break in causation due to a self-ingestion.

Therefore, Kelly cannot satisfy the ‘but for’ test and be that as it may Kelly cannot further be tested for the ‘significant cause’ test. The facts uncover that Kelly in fact gave Peter the readied insulin infusion without any knowledge insulin could be a poisonous thing (taking note of that no law confines its utilization) and Peter self-infuses which in law serves as the basis of Novus actus interveniens i.e. an intervening act that would ‘breaks the chain of causation’. R v Kennedy the facts of the case were clear and like those of the moment issue of self-ingestion. The litigant arranged and gave the deceased a syringe containing heroin. The deceased infused himself. The heroin affected his breathing and he died accordingly.

The House of Lords permitted Kennedy’s second appeal after his first appeal was uncovered as defective by Lord Woolf. This was not the situation of a ‘combined operation’ for which Kennedy and the deceased where together mindful. The deceased had a decision, regardless of whether to inject himself or not. The heroin was in this manner self-ingested, not together directed. What is more, where an individual unreservedly and intentionally infuses himself neither that demonstration nor its outcomes is owing to the supplier. This is as per the general rule that the free conscious and deliberate act of an individual start a new chain of causal duty.

In this way, Kelly challenged Peter to a drinking game and unavoidably lead to him being unclear about the situation thinking the drug was heroin meanwhile it was insulin and self-ingested, this being analysed is trivial as earlier the drinking diversion Peter was normal and furthermore had expected the presence of free will throughout the course of events.

This prompts the requirement that the unlawful act must be dangerous to satisfy the dangerousness test, in the conclusion of the jury, “all sober and a reasonable person have immediately recognised that the defendant’s action could cause harm albeit not serious harm”. This is an objective question. It is not important to demonstrate that the defendant knew about the danger as built up in these cases, R v Church. ; R v Lipman ; DPP v Newsbury.

It is clear that, a fanciful spectator, in the event that he saw Kelly’s activity of giving Peter insulin, would have perceived no potential threat at the counterbalance. However, the fact that the drug Kelly handed to Peter is a prescribed drug and not for any persons would validate the creation of a dangerous situation. This objectively applied test would likely satisfy as a dangerous situation but not an unlawful act.

Thus, it can be strongly argued that Kelly does not satisfy the relevant criteria. As Peter freely and voluntarily injected himself. However, Kelly may be convicted of manslaughter by gross negligence.

Gross negligence manslaughter is applied where the defendant commits a lawful act in such a way as to render the actions criminal. Gross negligence manslaughter was originally set out in R v Bateman. For this form of the offence liability is established the where the defendants act caused the death of the victim and (a) D owed V a duty of care, (b) D’s act amounted to breach that duty and (c) the breach of duty was gross.

Whether a duty exists is answered by reference to the ordinary principles of law of negligence established in R v Adomako. That is a duty owed where it is reasonably foreseeable that another will be exposed to a risk of harm by D’s actions and it is ‘just, fair and reasonable’ to impose liability. In R v Evans the victim injected herself with heroin supplied by the defendant. When the victim became ill, showing signs of having overdosed, the defendant stayed with her but decided against calling for help as she feared they would get into trouble. The victim subsequently died.

The Court of Appeal applying R v Miller , held that when a person has created or contributed to the creation of a state of affairs which he knows, or ought to reasonably know, has become life threatening, a consequent duty on him to act by taking reasonable steps to save the others life will normally arise. Kelly has arguably created a dangerous situation by supplying a potential lethal drug which led to Peter’s frothing and collapsing and finally sleeping to unconsciousness. The law would impose duty on Kelly here to nullify the danger created.

Kelly needs to exercise a minimum standard of care dealing with Peter whom she has caused to froth and collapse. The signs Peter showed required a prudent person to summon assistance. However, it could be pointed out that Kelly’s act of ignoring Peter’s condition was due to the fact it was time for her prescribed insulin which in fact is a vital need of response at the time to avoid any potential harm. In that regard Kelly injecting herself immediately and collapsing afterwards are signs of insufficient insulin take-in as Peter had already injected her insulin and she takes it from him and injects immediately. It can be argued that at this point of time Kelly is on insufficient medication and can be regarded as an automaton.