Essay Plan: "Only people who foresee that their actions will cause death should be convicted of murder. And only people who foresee that their actions will cause serious harm should be convicted of manslaughter. Discuss."

Essay Plan: "Only people who foresee that their actions will cause death should be convicted of murder. And only people who foresee that their actions will cause serious harm should be convicted of manslaughter. Discuss."

Introduction

• Focus: Evaluate the role of foreseeability in determining criminal liability for murder and manslaughter.

• Thesis: Foreseeability should be treated as evidence in finding intention but should not replace the role of intention in determining criminal liability for murder or manslaughter.

Paragraph 1: Foreseeability and Murder

• Critique of the First Statement:

◦ Argument: Foreseeability is not a viable alternative to intention.

◦ Use of Foreseeability: Should be evidence for intention, not a replacement.

◦ Key Cases:

▪ R v Hyam (1975): Held that foreseeability of death as a probable consequence could be sufficient for murder, which blurs the line between intention and recklessness.

▪ R v Moloney (1985): Lord Bridge proposed that foreseeability of a natural consequence should be evidence of intention but not a replacement for it.

▪ R v Hancock & Shankland (1986): Reinforced that foreseeability and intention are distinct states of mind, moving away from Hyam.

▪ R v Smith (1961): Previously treated foreseeability as central, which was rejected in favour of intention-focused approaches.

◦ Principle: The law should focus on whether there was a virtual certainty that the defendant's actions would cause death, not merely foreseeability.

◦ Moral Elbow Room: Expanding foreseeability expands liability unjustly.

Paragraph 2: Foreseeability and Manslaughter

• Critique of the Second Statement:

◦ Current Law: Manslaughter often involves serious harm (GBH), but foreseeability alone should not determine liability.

◦ Serious Harm and GBH:

▪ R v Cunningham (1957): Defined GBH as "really serious harm," widening the scope of what can constitute serious harm.

▪ R v Bollom (2004): Established that the severity of harm can vary based on the victim's characteristics (e.g., age, health).

◦ Problem: Lesser crimes with serious harm foreseeability could unjustly be classified as murder under this approach.

◦ Critique: Reducing such cases to manslaughter might be more just, but foreseeability alone is insufficient to distinguish between murder and manslaughter.

Paragraph 3: The Role of Foreseeability in Practice

• Foreseeability Depends on the Facts:

◦ Case Law:

▪ R v Cheshire (1991), R v Jordan (1956), R v Smith (1959): Demonstrated that foreseeability in causation is complex and fact-dependent.

▪ R v Roberts (1971) and R v Blaue (1975): Highlight the thin skull rule, where foreseeability is not the only factor; the specific facts of the case and the victim's condition play a role.

◦ Unpredictable Outcomes: The shifting nature of facts makes a strict foreseeability requirement unworkable.

◦ Operating and Significant Cause: The focus should remain on whether the defendant's actions were an operating and significant cause of death or serious harm, not merely on foreseeability.

Conclusion

• Summary: Foreseeability should not replace intention as the determinant of criminal liability for murder and manslaughter. It should be used as evidence in finding intention, but the law must consider the specific facts and circumstances of each case.

• Final Argument: The current legal framework, which treats foreseeability as a factor in determining intent rather than the sole criterion, is more satisfactory in ensuring justice.