Legal murder?

Dooom

Was watching The Practice on ITV the other night, and this guy was in court for murdering someone. He was on a boat with this other chap, and something blew up and the boat sank. Anywho, the two lads jumped into the sea, as ya do, but only one of them had a life jacket. The guy was being done for murder because he smashed the other guys head in with a bit of the boat to get the life jacket off him - and the other guy died a bit later on.

Anywho, he got off scott free because he was under duress. This is the part that surprised me (if it's just American law or not I'm not sure) - but according to the lawyer, if you're in a situation where it's basically your life or theirs you can legally kill or incapacitate them so as to save your on life. Actually, the term they used was "legally allowed to comit an evil act."

Anyone know if this is actually real or if it's TV lying to me again? Not that I'd purposely go out and get into one of those situation just to kill someone (although if it was someone like Brian McFadden, or that crazy frog or the like...well that'd be different). Just curious is all.

damnyanks

I was told about "Island law" many many years ago where you can legally turn to canabolism as well.

Course I was 14 and believed anything but maybe it was true

aphex™

An interesting question... I'm sorry but to give a good answer i've to go over the technical bits...

The Irish constitution provides for certain rights.. right to life, right to bodily integrity (not to have your body damaged), right to own property blah blah blah.
Over the years, Judges have in case law given some rights more importance than others, this is the Heirarchy of Rights.

So for example, you have the right not to be detained illegally. A few years ago some weirdo kidnapped a woman and the cops got him, but he didn't tell them where she was. They kept him, even when they were supposed to let him out (you know, after the time period they can legally detain you is up). It went to court and the Judges found that the right to the woman's right to life was greater than his right to freedom.

What has this example got to do with the question? Well, there have been no cases in Ireland where it was necesary for anyone to kill anybody legally, but it serves to explain the Heirarchy of Rights to you.

It has been argued that if a father walked in and saw his underage daughter being banged by some guy he would technically get away with shooting him. Technically. Because the court MAY decide the girls right to bodily integrity is greater than his right to life. This would be decided in the Supreme Court and you'd most certainly do some time anyway, before beting let out after years of appeals etc etc.

And yeah if it's your life or theirs that thinking might apply.

THERE HAS BEEN NO CASE LIKE THIS IN THE IRISH COURTS AND IF U TEST IT U WOULD PROLLY END UP IN JAIL, COS THE JUDGE DOESNT LIKE THE LOOK OF U OR SOME OTHER TRIVIAL THING (they'll find a way to send u to jail)

aidan_walsh

TV US law != US law != Irish law.

impr0v

/me murders doodle_sketch to save thread

Peteee

Join the Army, then if theres a war you can legally shoot people!!!!!

Dooom

Or live in Texas - if someone tries to break into your house, BLAM! Texas always makes me think of the A-Team for some reason.

puntosporting

Legal Murder = Oxymoron

John R

aphex&#8482 wrote:

What has this example got to do with the question? Well, there have been no cases in Ireland where it was necesary for anyone to kill anybody legally, but it serves to explain the Heirarchy of Rights to you.

So you are saying there have been no cases of people killing in self-defense in Ireland?

Canis Lupus

I think he meant more of a premeditated "kill someone for a life jacket" type situation as described in the first post rather than self defence.

Bogger77

Spike wrote:

Or live in Texas - if someone tries to break into your house, BLAM! Texas always makes me think of the A-Team for some reason.

I liked Texas, nice place with nice people, as long as you ain't black. Being Irish is a benefit over there

dermot_sheehan

Although there has been no case of this in the republic it has occured in the past in the U.K.
The old rule from R v. Dudley & Stevens was that duress is not a defence to murder. This case is an interesting read as it involved sailors in a lifeboat, 2 of them kill and eat another to survive.

This principle was affirmed recently in the UK by the House of Lords in R v. Howe. That case overturned Lynch v. DPP for Northern Ireland where it was held that duress was a defence for murder when you're not the principle (the person actually carrying out the act).

In the republic A.G. v. Whelan holds that duress is a valid defence, except to a charge of murder.

Kappar

If I remember correctly in this we would be talking about the defence of necessity which differs from duress in that it is caused by circumstance rather than some person making you do something.

I think though that this area’s not very well defined. R v. Dudley & Stevens I think would suggest not defence of necessity to murder. But in the Zeebrugge case about the ferry disaster a man was blocking the ladder because he couldn’t move because of fear of the cold water. He was pushed into the water and never seen again. It was suggested in the inquest in the Coroner’s Court that an act of self-preservation or an act for the preservation of others was not necessarily murder. Albeit this is the Corner’s Court.

In South Africa I think that case is clearer, a man has right to self-preservation. If you like I will find a source for this.

Capt'n Midnight

AFAIK murder has to be premeditated so no excuses.

Manslaughter is a lesser charge
and Self Defence can't be premeditated

There was the Scottish verdict of Guilty not proven.
And in the US if like OJ you can afford the dream team it's harder to be found guilty.

There was a CSI on recently, the one with Grishim and the Madame, anyway this one with an ostrich boa killed a couple of people. But at least one happened after the husband (not hers) told her to stop. From my understanding of US law he was an "accessory after the fact" but didn't seem to be arrested even though his silence caused his wife to be killed. Also real cops get very upset about reading people thier rights, they don't actually have to do it in all states.

dermot_sheehan

Kappar wrote:

If I remember correctly in this we would be talking about the defence of necessity which differs from duress in that it is caused by circumstance rather than some person making you do something.

Necessity and duress are co-related as necessity is duress of circumstances.

pwd

so you go out in the boat which you own with one life jacket and someone you hate
then you intentionally sink the boat out in the middle of nowhere. it's your property.
and kill the person you hate.
repeat 25 times
and feel the anger leave you

dermot_sheehan

Capt'n Midnight wrote:

AFAIK murder has to be premeditated so no excuses.

There was the Scottish verdict of Guilty not proven.
And in the US if like OJ you can afford the dream team it's harder to be found guilty.

There was a CSI on recently, the one with Grishim and the Madame, anyway this one with an ostrich boa killed a couple of people. But at least one happened after the husband (not hers) told her to stop. From my understanding of US law he was an "accessory after the fact" but didn't seem to be arrested even though his silence caused his wife to be killed. Also real cops get very upset about reading people thier rights, they don't actually have to do it in all states.

With murder the killing must be done with the intention to cause death or serious bodily harm, if it's done recklessly or negligently it's manslaughter. Pre-meditation is relevant in some U.S. states where there is murder of the first degree (which involves pre-meditation), and murder of the second degree.

To be an accessory after the fact, you must some how help the person escape or evade capture after the crime was committed. You must not have had prior knowledge of the crime. If you do nothing after finding out someone committed murder, you are guilty of the offense of misprisoning a felony, though this was abolished in Ireland in 1997.

In the U.S., in all states, an accused must be informed of their rights after arrest. This is known as the Miranda warning after the Supreme Court case of Miranda v. Arizona. In Ireland and the UK, it is normal for a police officer to caution a person when the officer froms the intention to charge a person with an offence. This caution is done under the Judges' Rules.

pickarooney

There was a similar enough scenario in the film Touching the Void. If anyone's seen it,

would the guy have been accountable for some crime (murder, manslaughter) if the other climber hadn't survived? And if so, given that the intent is identical, how is it a lesser crime on the part of the guy who cut the rope?

dermot_sheehan

pickarooney wrote:

There was a similar enough scenario in the film Touching the Void. If anyone's seen it,

would the guy have been accountable for some crime (murder, manslaughter) if the other climber hadn't survived? And if so, given that the intent is identical, how is it a lesser crime on the part of the guy who cut the rope?

Interesting question, probabley yes:

First of all the question would be did he kill him, the answer would be yes if he died from the fall. The next question is of mens rea, or mental thing. Did he intend to kill him or cause him serious bodily harm, or not? You could argue he did not intend to kill him but merely to cut the rope, however s.4(2) of the Criminal Justice Act 1964http://www.irishstatutebook.ie/ZZA5Y1964S4.html states that a person is presumed to have intended the natural and probable consequences of his act, though this presumption can be rebutted.

The question is whether this presumption that he intended to kill when he cut the rope has been rebutted? That's a question to be determined by the jury. It basically decideds whether he is charged with murder or manslaughter, though as stated previously, since necessity/duress is not a defence to homicide, he would have committed a criminal offence.

pickarooney

gabhain7 wrote:

Interesting question, probabley yes:

spoiler removed for brevity

Reckon you could get a lawyer to convince a jury that

not cutting the rope constituted endangerment of self, and indeed, knowing that failure to do so would probably result in his own death, he would have been guilty of suicide, which is, I think, a crime (obviously unprosecutable), although attempted suicide seems not to be

dermot_sheehan

But suicide has not been a crime since 1993
http://193.178.1.79/1993_11.html,

Plus you can not always use leathful force to prevent the commission of a crime, only reasonable force.

To sum up, awkward situations like this aren't really considered when laws are drafted and judges have to make decisions as best they can after the event. In reality it is doubtful that the individual in such a situation would be prosecuted, or even if he was the jury would find him not guilty despite the law requiring them to find him guilty (jury nullity theory), or else as in the case of R v. Dudley & Stevens the Executive would grant clemancy.

For the judges, there are several differrent approaches they can take, based on their own theory of law. The article, the SPELUNCEAN EXPLORERS, from the 1949 Harvard Law review gives examples of the approaches judges could take in a (hypothetical) hard case.
http://people.brandeis.edu/~teuber/lawspelunk.html