SKELETON ARGUMENT
ON BEHALF OF THE LEAD/JUNIOR COUNSEL FOR THE APPELLANT/RESPONDEN
First ground of appeal:
Is the defence of necessity available to the offence of murder outside the particular circumstances that arose in A (Children), and, if so, do the three requirements for the defence as set out in A (Children) leave room for the jury to take into account the defendant’s reasonable belief or are they purely objective?
Submission(s)* on the first ground of appeal:
Second ground of appeal:
Is the test of foresight of virtual certainty as interpreted in A (Children) consistent with the earlier House of Lords decision in R v Woollin [1998] 4 All ER 103, which held that where a consequence is foreseen as ‘virtually certain’, the jury may find that the defendant had the necessary intention?
Submission(s)* on the second ground of appeal:
The test of virtual certainty in the case of R v. Waitrose is not consistent with the House of Lords decision in the case of R v. Woolin (1998) All ER 103, which stated that, where a consequence was foreseen as virtually certain, the jury may find that the defendant had the necessary intention since the main question, in this case, does not aim at differentiating murder from manslaughter or any other form of unintentional killing.[1] In this case, Mr. Waitrose knew that suffocating the sick girl would cause her death; in fact, the appellant intended to kill his daughter. If the jury bases their decision on this test of virtual certainty, then it was right to convict Mr. Waitrose of murder and not manslaughter. However, on separate grounds, the appellant should be acquitted of any charges. First, despite the fact that Mr. Waitrose intended to kill, it is unnecessary to consult the House of Lords decision on the case of R v. Woolin All ER 103, in this case.[2] This case does not require the jury to determine whether the committed crime is murder or manslaughter; it is clear that none of the two charges should be levelled against the appellant. Mr. Waitrose was clearly intending to kill the child and did what he knew was enough to kill the child using what he knew can do the job effectively and in the shortest time possible. However, his crime cannot be murder. Unlike murder where one intentionally kills out of malice or viciousness, in this case, the appellant killed out of sheer necessity. It was necessary for him, as a father, to reduce the suffering that his daughter had to go through; he had tried all orthodox means possible but all of them had failed, thus, forcing him to resort to unorthodox means. His daughter has been in and out of hospital but only got worse; the doctors had confirmed that her disease was terminal; and that even palliation was not feasible as not known analgesics could reduce her pain. Moreover, Mr. Waitrose’s intentions were not out of anger or malice, but rather out of sympathy. The appellant was not looking to intentionally subject his daughter to painful suffocation and premature death – rather, out of sympathy for what the small girl was going through, he decided to relieve her of the pain. As evidence that he did not have any malice in his intentions but pure consideration and love, he used a pillow to suffocate her.[3] The softness of a pillow would keep the girl away from what had happened. Furthermore, a pillow is probably big enough to cover the girl’s face while he suffocates her – as a father, he would not want to see the face of her dying daughter. In addition, the method that the appellant chose to relive the small girl of her suffering was not only the most pragmatic at the time but also one that would not interfere with her human dignity or the integrity and wholeness of her dead body. Therefore, Mr. Waitrose committed neither murder nor manslaughter and the trial chamber should thus acquit him of any such charges.
Additionally, we can allude to the case of ReA (Conjoined twins) (2001) 2 WLR 480, especially the judgment by Lord Justice Walker to expose a different dimension of the aspect of foresight of virtual certainty. In this case, Rosie and Gracie were born while conjoined at the pelvis.[4] Gracie had a 94% chance of survival if the twins would be separated surgically.[5] Rosie could not survive as she dependent solely on her sister for her survival. Scientific evidence had confirmed that the surgery to separate the two would definitely kill Rosie. However, without the surgery, both kids would die in six months. The court of appeal of England and Wales overturned the ruling of a lower court which stated that the surgery would be passive euthanasia. LJ Walker asserted that in his opinion, the appellant of the case knew that the surgery would kill Rosie. However, their primary intention was not to kill Rosie. Rather, they were looking to save Gracie and give her a prosperous life. Although there was virtual certainty of death, the primary intention was to save life and to improve the quality of life. The surgery would save the life of Gracie and relieve her parents of the burden of having to struggle with sick children all the time. Thus, this case presents a situation where the test of foresight of virtual certainty is irrelevant and thus the judges of this case should not apply it. Mr. Waitrose was certain that the pillow would suffocate the young sickling girl to death; thus, it would be wrong to convict him of manslaughter. However, the appellant can also not be convicted of murder because their intentions were pure and fatherly, they were only trying to relieve their young daughter of pain. The appellant has attempted all legal ways of alleviating their daughter’s pain that were available to them but to no avail. Thus the appellant did the only thing that was humanly possible for him; to shorten the duration of his daughter’s suffering. For this reason, it would be unfair to convict the appellant of either murder or manslaughter.
Moreover, still on the case of ReA (Conjoined twins) (2001) 2 WLR 480, the reasoning of Lord Justice Ward reveal another aspect of the irrelevance of the test of foresight of virtual certainty in the appellant’s case. LJ Ward asserted that Gracie, the healthier of the two twins, would be cross with her sister and would demand her sister to be removed from her and to stop sucking out her life if she was able to express herself. Thus, the likely intentions of the victim come into play. In the appellant’s case, we can assume that because all other strategies had failed, the young girl would only wish to die and nothing else. Thus, it was right for her father to assist her to do it. Even though her father knew that the actions he took would kill her, she should not be convicted of murder since death is what the small girl would only wish for.
Authorities:
- Molan, M. T.,Criminal Law, 2014 & 2015, Oxford, Oxford University Press, 2014.
- Finch, Emily, and Stefan Fafinski. ‘Legal Skills,’ Oxford, Oxford University Press, 2017.
- Carpi, Daniela. ‘Bioethics and Biolaw Through Literature,’ Berlin, De Gruyter, 2011.
Bundle of Authorities
Authority 1
ReA (Conjoined twins) (2001) 2 WLR 480. Lord Justice Ward, Lord Justice Brooke, and Lord Justice Robert Walker.
This case was presented to the Court of Appeal of England and Wales with the appellant hoping that the judges would revoke a prior decision to allow the separation of two conjoined twins, Rosie and Gracie, on the grounds that the separation of the twins would lead to the death of Rosie and should thus be equated to murder. However, the three judge bench withheld the decision. LJ Ward argued that if she had the ability to defend herself, Gracie – the twin with a higher chance of surviving, would have asked her sister to stop killing her and thus would demand for the surgery. LJ Brooke argued that this case was different from the case of R v Dudley and Stephens and thus necessity could be a sufficient defence for the murder of Rosie. LJ Walker also agreed that the surgery was lawful since its primary intentions were not to kill Rosie but to save Gracie.
Authority 2
R v Woollin [1999] AC 82 House of Lords
The House of Lords reversed Woolin’s murder conviction to manslaughter since he was not certain of the end result; by throwing his son, he did not anticipate that the child would hit a hard surface and die. Thus, the appellant could not be convicted of murder since he did not foresee the virtual certainty that the baby would sustain fatal injuries.
[1] Molan, M. T.,Criminal Law, 2014 & 2015, Oxford, Oxford University Press, 2014. 32
[2] Molan, M. T.,Criminal Law, 2014 & 2015, Oxford, Oxford University Press, 2014. 32
[3] Finch, Emily, and Stefan Fafinski. ‘Legal Skills,’ Oxford, Oxford University Press, 2017.
[4] Carpi, Daniela. Bioethics and Biolaw Through Literature, Berlin, De Gruyter, 2011. 94
[5] Carpi, Daniela. Bioethics and Biolaw Through Literature, Berlin, De Gruyter, 2011. 94
