This document provides an analysis in answer to a criminal law problem question relating to the law of murder and manslaughter. The problem is set out as follows:
Alan and Betty are contestants in the Big Sister game show. They do not get on and Alan feels that Betty is two faced. Betty has put Alan up for eviction three times and this week Big Sister has asked contestants to role play where some are servants and others act as masters.
Big Sister instructs the contestants acting as masters to humiliate the servants as much as possible. Alan has been assigned a role as servant and Betty as master, Betty makes Alan do many humiliating tasks including, making the beds, cleaning the showers and cleaning the toilet numerous times with a toothbrush. When Alan finishes cleaning the toilet for the third time, Betty decides to inspect and tells Alan that a fourth clean is required. Alan reacts badly and argues with Betty.
KEY WORDS: Murder, manslaughter, defences, provocation, causation, intervening act, gross negligence manslaughter, corporate manslaughter
[...] Unless Alan can establish that he did not have the necessary mens rea, it seems highly probable that he could be criminally liable for murder unless he can successfully rely on the partial defence of provocation under section 3 of the Homicide Act 1957, which by virtue of common law reduce his offence to manslaughter. In order to rely on the defence of provocation, Alan would have the burden of proving that something was said or done that provoked him to punch Betty. [...]
[...] In order to advise Alan, Cathy, Derek and Big Sister Limited, I shall consider each party in turn and summarise with a conclusion of their potential liability under criminal law ALAN'S POSITION Alan could potentially be liable for murder or manslaughter under the law of homicide. The classic definition of murder under English Law was propounded by Sir Edward Coke, asserting the two stage definition requiring actus reus and mens rea: “Murder is when a man, unlawfully kills within any country of the realm any reasonable human being under the Queen's peace, with malice aforethought”. [...]
[...] However, in light of the unlikelihood of establishing that the Derek and Cathy's omission actually caused Betty's death, it is likely that any potential claims against Big Sister will be in civil law and not criminal law. In summary, unless it can be established that Derek and Cathy's failure to act caused Betty's death, Alan will be criminally liable for murder subject to the burden of proving a partial defence of provocation for the lesser offence of manslaughter. In the unlikely event that Derek and Cathy's breach of duty of care is established as the cause of Betty's death, then they will face liability for gross negligent manslaughter and Big Sister will be exposed to a claim for corporate manslaughter. [...]
[...] Smith, op.cit. Smith, ibid.  3 All ER 193. Cheshire, ibid. (1983) 76 Cr App Rep 279. www.patient.gov.uk  2 QB 664.  2 WLR 648. (1986) 8 Cr App R 179.  4 ALL ER 103. Section 3 of the Homicide Act 1957 imposes an evidential burden on the defendant to provide sufficient evidence of provocation for the judge to leave the defence to the jury. The common law definition of provocation was established in the case of R v [...]
[...] Lord Diplock further asserted that the relevant question was not whether such a person would be provoked to lose their self control in the circumstances, but whether they would react to the provocation as the defendant did. It is also vital to consider the gravity of the provocation and the entire factual circumstances. In the case of R v Smith the House of Lords asserted that it was not sufficient that something had caused the mere loss of self control, but the relevant question was whether the loss of control was sufficiently excusable to reduce the gravity of the offence from murder to manslaughter. [...]
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