Murder: The Cases Of Kevin And Pablo

In order to determine any potential liability of Mo for murder, I am going to separately analyse two episodes of homicide on whether they consist of actus reus and mens rea for that crime or not. Then I am going to consider possibilities of applying partial defences of loss of control and diminished responsibility.

The classic definition of murder is given by Sir Lord Coke. According to a modern and simplified version of that definition, murder is the unlawful killing of a human being under the Queen’s peace with the intention to kill or cause grievous bodily harm (GBH). Thus, liability for murder must arise when the following elements of that crime are proven:

• Actus Reus: unlawful killing of a human being under Queen’s peace and causation between that act and death.
• Mens Rea: intention to kill and intention to cause GBH (R v Vickers, confirmed in R v Cunningham ). GBH is defined as “really serious harm” by Viscount Kilmuir in DPP v Smith.

Kevin’s death

The first episode of homicide occurred when Mo, after losing his temper, hit Kevin several times with his walking stick. Prima facie it is actus reus for murder as the victim is a person in being; it caused GBH and consequently Kevin’s death within the Queen’s peace; the act is unlawful as there are no reasons to suggest self-defence – Mo’s reaction was fairly disproportional (R v Clegg ).

There are problems in described events that potentially have affected the question of causation. The factual causation becomes quite obvious by applying the “but for test”: it is apparent that Kevin would not die if Mo had not attacked him. To establish the legal causation defendant’s actions must be an operative and substantial cause of the prohibited consequence (R v Smith, R v Cheshire ), beyond the de minimus rule (R v Rafferty ), but do not need to be the sole contributory factor (R v Jordan ).

At the hospital, Dr Mullani was negligent in evaluating the seriousness of Kevin’s injuries. As it was stated in R v Blaue, if an initial act was going to end with death, the fact of no interference when such possibility existed, does not break a chain of causation. In addition to that, according to the decision in R v Smith, even if with the right treatment Kevin would have been saved, the chain of causation was not broken as his injures remained operating and substantial cause of death. To be considered as actus Novus interventions, Dr Mullani’s omission should be an independent reason of death to the degree that the defendant’s action becomes insignificant (R v Cheshire). It is clearly not the case in the considered situation.

The question with mens rea is more complicated, it is not clear that Mo intended to kill or cause GBH Kevin. He could claim that his aim was to punish Kevin by beating him without so seriously injuring him. It is highly probable that the test of virtual certainty from R v Woolin would be applied. It seems that it was virtually certain that hitting on the head with a walking stick would cause really serious bodily harm.

Pablo’s death

The second episode of homicide occurred when Mo followed Pablo and then pushed him off the bridge into the cold water. On the facts of the incident, his actions conclude actus reus for murder as the victim is a person in being; it caused Pablo’s death within the Queen’s peace; the act is unlawful as there is no reason to suggest self-defence. The chain of causation is pretty clear as there are no mitigating events and Mo is both factual and legal cause of Pablo’s death.

The main question here is mens rea, because Mo claims that he had no intention to kill or cause GBH to Pablo. Albeit Mo’s aim was to scare him, the Woollen test should be applied and it is for the jury to determine whether the death was virtually certain in such circumstances. The degree of certainty is pretty high, it would not be sufficient if the outcome was very or highly probable. It also depends on other details that are not mentioned (altitude of the bridge, size and depth of the river, its flow rate, time of the year).

The facts of this case resemble the facts in R v Matthews and Alleyne. In that case, the victim was thrown off the bridge by the defendants, who knew that the victim could not swim. They were convicted of murder and then appealed on the basis that the jury was misdirected by the court. Although the Court of Appeal acknowledged that the jury was misdirected, the conviction was upheld as the defendant’s intention to kill should have been concluded from the fact that they did not try to help the victim when he was in the water, hence they had no intention to save him from drowning. Similarly, if Mo only intended to scare Pablo, he should have tried to help him from such death. All these facts should be considered by the jury in determining his intention.

Here (as well as in the situation with Kevin) if the jury will decide that there was no intention to kill or cause GBR, and the Wollin test would not be passed, then he should be convicted of involuntary manslaughter. In both episodes, Mo committed unlawful and dangerous acts. Elements of that crime were defined in R v Larkin, R v Church and later were confirmed in DPP v Newbury and Jones.

Loss of Control

There is a possibility that Mo would be able to claim the loss of control as his defence. According to section 54(1) of the Criminal Justice Act (CJA) 2009, three conditions should be established for that purpose:

• At the time of the killings Mo had suffered a loss of control;
• There was a qualifying trigger;
• A person of the same age, sex, with a normal degree of tolerance and self-restraint would act in the same or similar way in the same circumstances.

The defendant must provide evidence in order to prove these conditions (section 54 (6) CJA 2009), the prosecution would have to disprove provided evidence (section 54(5) CJA 2009).

Right before considered events happened, Pablo and Kevin were insulting Mo, mocking him for his army injury and mental condition. Mo quietly endured this unprovoked verbal attack of personal nature, and possibly was suffering quite serious distress. Then suddenly Kevin threw an egg at him. It seems that this physical attack was a qualifying trigger for the loss of control. Mo can claim that at that moment he felt that he was seriously wronged and that was a triggering factor (section 55 (4b) CJA 2009).

In the situation, with Kevin, there is no delay between the qualifying trigger and Mo’s actions. This defence does not seem to be applicable to the episode with Pablo’s death.

The last question is would a person of the same age and sex, with a normal degree of tolerance and self-restraint, react in the same way in similar circumstances? This is the objective test: we should only consider those circumstances which bear on the general capacity for tolerance and self-restraint. Hence only the same sex and age should be taken into account: Mo’s PTSD and depression are not attributable. Perhaps, a reasonable person would not react in the same way. Thus, it is not likely that the jury will accept that defence.

Diminished responsibility

Given that Mo was diagnosed with PTSD and depression, there are very high chances to claim diminished responsibility. If he is successful with that claim, then he would be convicted of manslaughter instead. In order to claim that defence, according to section 1 of the Homicide Act (HA) 1957 (as amended by section 52 of CJA 2009) Mo should have the abnormality of mental functioning that must:

• arise from a recognised medical condition;
• substantially impair the defendant’s ability to understand the nature of his conduct, form a rational judgment and exercise self-control;
• provide an explanation of his actions and being a party to the killing.

The burden of proof is on the defendant (s. 2(2), HA 1957). PTSD and depression are recognised medical conditions under WHO Classification & DSM-IV-TR and Mo was diagnosed with them before considered incidents occurred. PTSD was considered as a condition that affected defendant’s ability to understand the nature of his actions in R v Bradley and depression was seen as a diminishing factor in R v Seers and R v Gittens . The word “substantial” in the context of section 52 does not mean “total”, but more than merely trivial or minimal (R v Lloyd and later confirmed in R v Brown ).

A combination of PTSD and depression could affect Mo’s ability to understand the nature of his action, he clearly reacted not in a normal way and probably was not able to make rational judgments. As his mental condition was the very same object of mocking by Pablo and Kevin, there is a very high chance that it can be seen as an explanation for his actions when he attacked Kevin. Although it is not likely that he would be able to use that defence for the episode with Pablo.

Conclusion

Mo caused death of Kevin and Pablo and in both cases his actions prima facie attribute to actus reus and mens rea for murder. There is a chance to use the defence of the loss of self-control in relation to the killing of Kevin, but it does not appear to be easily accepted by the jury. It seems that there are more chances to use diminished responsibility as a defence in that episode.

His intention in the episode with Pablo’s death should be examined by the jury. It is possible that they will conclude that he committed involuntary manslaughter in the absence of mens rea for murder, but it does not seem to be the likely outcome.