Mock Memo

The following is my own work, and no AI has been used in its making.

Extracted from a Word Document.

To: Partner Diamond Law LLP

From: Trainee Solicitor at LLP

Date: 20/04/26

Subject: Criminal liability regarding client Mr Rudi Forrester

The purpose of this memo is to address the three questions surrounding Mr Forrester’s case.

Q1 – Mr Forrester’s Liability for Murder

Murder is classically defined by Coke LJ as the unlawful killing of another person in the King’s peace with malice aforethought.[1] Its actus reus, therefore, is the unlawful killing of a person in the King’s peace, and its mens rea has been interpreted as the intention to cause death or grievous bodily harm to the victim.[2] On the actus reus, to first establish whether there may be a murder charge, there must be sufficient causation between Mr Forrester and Ms O’Neill, established in both fact and law. Factual causation, as outlined in White, is a question of ‘but for Mr Forrester’s actions, would Ms O’Neill have died?’.[3] Mr Forrester mixed monkshood, a toxic plant, into his dish. ‘But for’ this action, it is a broad certainty Ms O’Neill would not have died. On legal causation, the traditional Smith understanding has been one of an operating and substantial cause of the death.[4] In Wallace, however, terminology seems to have shifted to simply a ‘significant cause’.[5] Under Cheshire, an act need only be a significant cause. Legal causation will be explored further with Dr Fulton, but, on the facts, the application of monkshood is likely to be of a strong enough link that a court may find Mr Forrester factually culpable.

On the question of mens rea, Mr Forrester states he accidently added monkshood. There is no evidence from any of the witnesses of direct intention to kill Ms O’Neill, but that does not exclude indirect or oblique intention. This issue may be answered in Woollin; a defendant’s wrongdoing must be judged as producing a virtually certain result and that they foresaw this or wanted it.[6] Mr Dukakis’s witness statement details that Mr Forrester screamed, ‘a tiny bit of monkshood, surely that couldn’t actually kill someone?’. This suggests that Mr Forrester did not regard the adding of monkshood as a virtually certain consequence. Under Woollin, a jury may find it difficult to infer oblique intention if Mr Forrester could not see it as a virtually certain result. Additionally, Ms Duncan’s statement may have informed Mr Forrester of monkshood’s toxicity towards humans, but this could not be held to constitute intention nor of an appreciation that a small quantity of it may kill someone. It is merely general knowledge. It is unlikely a murder charge would succeed on mens rea grounds.

However, because intention cannot be easily established, a jury may find for gross negligence manslaughter, which requires no proof of intent; it requires the satisfaction of a five stage test, originating under Adomako:[7] Mr Forrester owed a duty of care to Ms O’Neill, he breached this duty, the breach caused death of Ms O’Neill, there was a serious and obvious risk of death at the time the duty was breached,[8] and the breach of duty was grossly negligent. Mr Forrester owed a duty as Ms O’Neill’s host, he was aware of the toxic substance in her food but chose to serve it. Mr Forrester ‘convinced himself’ that the monkshood would probably not be as bad for humans. This is not what the reasonable person would likely believe and is Mr Forrester’s own rationalisation. It was a serious and obvious risk that caused her death. Leaving poison in food is likely to be regarded by a jury as being grossly negligent. Mr Forrester is unlikely to be charge with murder, but gross negligence manslaughter is a likely charge.

Q2 – Dr Fulton’s Potential Charge for Ms O’Neill’s Death

The answer of Dr Fulton’s charge can be decided on whether his actions constitute a novus actus interveniens; an intervening act that is sufficient enough to break the legal chain of causation from Mr Forrester. In Cheshire, medical negligence will only constitute a new intervening act if it is so independent and potently overwhelming as to make the original act insignificant.[9] Dr Fulton’s actions would have make the poisoning insignificant; this is a high bar, and one that is unlikely to succeed.

 If, however, Dr Fulton were to be held liable, the offence most applicable is gross negligence manslaughter. Again, Adomako is applied; it must be shown that Dr Fulton owed Ms O’Neill a duty of care, that the failure to perform immediate defibrillation, failing to seek a senior doctor, and failure to complete training constitutes a breach, that causation was such that prompt defibrillation would’ve saved Ms O’Neill’s life (following factual causation), that there was an obvious risk of her death at time of breach, and that the breach was so gross as to justify criminality.[10] Given the hospital has admitted its own failure and have internally disciplined Dr Fulton, a jury will likely be emboldened to find Dr Fulton as falling below standards as to justify criminal liability, grounded in his failure to attend defibrillation training, his inability to use a defibrillator for twenty minutes, and his failure to contact senior assistance.

Q3 – Violation of the Fraud Act

The Fraud Act 2006 creates a general offence of fraud in s.1, which may be committed in three ways, laid out in sections 2 (false representation), 3 (failure to disclose information when there is a legal duty to do so), and 4 (abuse of position). Fraud is characterised within these sections as a dishonest act or omission and attempt to make a gain or cause loss to another.[11]

In s.2, a representation is false if it is, or is known to be, untrue or misleading. Ms Duncan told Mr Forrester that several customers had ‘successfully’ used monkshood to repel rodents. Despite this, she later states she had ‘ordered it for the first time’ and wasn’t sure of its usefulness. This is a false representation; Ms Duncan invented this claim in order to make a sale. In Augunas, the test for whether a defendant knew the representation was untrue or misleading or might be so was a subjective one; it doesn’t matter whether they ought to have known, only if they had actually known.[12] Ms Duncan knew the claim might be untrue. As to dishonesty, courts now follow the Ivey test. This asks first what the defendant’s actual knowledge or belief was, then whether their conduct was dishonest by the standards of ordinary decent people.[13] Ms Duncan admits her eagerness to make a sale and fabricated backing of her product; intent to make a gain --that being sales profit-- is met under s.2. It is a likely charge for Ms Duncan.

Under s.3, a legal duty must be established. Beyond the manufacturer’s labelling, there is no clear duty for Ms Duncan as the retailer. The fact she warned Mr Forrester of the toxicity towards humans strengthens her position even if a duty was found. Her failure to disclose that she had no experience with the product and misrepresented its customer track record creates no obvious obligation that would leave her liable under s.3.

Under s.4, a person is expected to not act against, or to safeguard, the financial interests of another and dishonestly abuse that position. S.4 is usually engaged in cases involving fiduciaries, but is not limited by it and can apply broadly.[14]  The question is whether Ms Duncan, given her herb expertise, her long relationship with Mr Forrester, and witnessing his interest in botany grow, was put in a privileged enough position by Mr Forrester, by virtue of which she is expected to safeguard his financial interests or able to damage those interests.[15] Ostensibly, this seems unlikely, but, in the explanatory notes of the Act, a Law Commission Report makes reference to ‘professional person and client’ as a relationship applicable under the Act.[16] Mr Forrester’s reliance on Ms Duncan’s expertise strengthen s.4 viability. However, it is likely what is meant by professional is the professional class of employment, such as doctors or solicitors.  Ms Duncan is a retailer with certain knowledge that can be expected in her specialist industry. Additionally, the court’s caution in Valujevs about over-expansion of s.4 make it a weak claim.[17]

Bibliography

Cases

Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67

R v Adomako [1995] 1 AC 171

R v Augunas [2013] EWCA Crim 2046

R v Cheshire [1991] 1 WLR 844

R v Cunningham [1982] AC 566

R v Rose [2017] EWCA Crim 1168

R v Smith [1959] 2 QB 35

R v Valujevs [2014] EWCA Crim 2888

R v Wallace [2018] EWCA Crim 690

R v White [1910] 2 KB 124

R v Woollin [1999] AC 82

Legislation

Fraud Act 2006

Books

Coke E, The Third Part of the Institutes of the Laws of England (1628)

Reports

Law Commission, Fraud (Law Com No 276, 2002)

[1] Sir Edward Coke, The Third Part of the Institutes of the Laws of England (1628)

[2] R v Cunningham [1982] AC 566 (page 579)

[3] R v White [1910] 2 KB 124, 130

[4] R v Smith [1959] 2 QB 35, 42–43

[5] R v Wallace [2018] EWCA Crim 690, [64]

[6] R v Woollin [1999] AC 82, 96

[7] R v Adomako [1995] 1 AC 171, 187

[8] R v Rose [2017] EWCA Crim 1168, [77]

[9] R v Cheshire [1991] 1 WLR 844, 851–852

[10] Adomako (n 7)

[11] Fraud Act 2006 s 5

[12] R v Augunas [2013] EWCA Crim 2046, [9]

[13] Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67, [74]

[14] R v Valujevs [2014] EWCA Crim 2888, [34]

[15] Law Commission, Fraud (Law Com No 276, 2002) para 7.37

[16] ibid para 7.38

[17] Valujevs (n 14) [43–44]