Core Principles Flashcards
1.1 Key elements of criminal liability
As a matter of analysis we can think of a crime as being made up of three ingredients; actus
reus, mens rea and (a negative element) the absence of a valid defence.’
D.J. Lanham [1976] Crim LR 276
These latin phrases are taken from Edward Coke’s institutes, who stated that ‘an act does not make a person guilty unless (their) mind is also guilty.’ Actus Reus broadly translates as a guilty act, however this can be misleading.
A defendant can be found to have committed the actus reus
of an offence despite the fact that he took no action at all; he can be guilty of a crime by his omission or failure to act. The defendant’s conduct must be accompanied by a state of mind required for that crime.
Strict Liability Offenses
Note that there are some crimes which do not require any particular state of mind and are regulatory in nature. These are known as strict liability offences and are beyond
the scope of this workbook. If a defendant is found to have committed the actus reus of a crime,
with the required mens rea, he still may be able to avoid liability should there be some justification
or excuse for his behaviour.
Goals of the chapter
- This chapter will begin by looking at types of actus reus and consider how crimes can be
classified. - It will then move on to omissions, by considering the general rule and exceptions to this rule.
- It will then consider terminology which can be found in the mens rea, as well as mens rea
principles - It will then provide an overview of defences and finish by looking more closely at the offence of murder.
- Actus reus
Actus reus usually refers to the actions of the defendant that are prohibited by law. However, as
you will see, the actus reus can be much wider than just doing something. This is an essential
element of the offence. To assist in determining the relevant rules, offences can be categorised in
a number of different ways.
Categories of actus reus
We will look at four types of actus reus:
* Conduct;
* Result;
* Offences with surrounding circumstances; and
* Omissions.
2.1 Conduct offences
In some cases, offences will only require certain acts to have been committed by the defendant to
satisfy the actus reus. For example, the conduct required for fraud by false representation under s 2 Fraud Act 2006 is that the defendant makes a false representation. It is not necessary that the victim is deceived by the representation
2.2 Result offences
The actus reus of result crimes requires more than just the defendant’s action. Here, the action
must lead to a specified consequence. In such cases, it must be proved that the action actually
caused the result. One example of a result offence is murder, where the actions of the defendant must cause the death of the victim. Other examples include manslaughter, grievous bodily harm (GBH) and
actual bodily harm (ABH).
2.3 Surrounding circumstances
The actus reus can also include the need for some particular surrounding circumstance.
Under s 1(1) Theft Act 1968, the actus reus of theft is defined as the appropriation of property
‘belonging to another’. The surrounding circumstance the prosecution must prove is that the
property belonged to someone other than the thief.
2.4 Omissions
A defendant can be held to have committed the actus reus of an offence despite taking no action
at all. Although the general rule that there is no liability for failure to act, the criminal law will, in certain circumstances, impose a legal obligation to act which if breached could result in criminal liability. An on-duty lifeguard could be liable for gross negligence manslaughter if a swimmer drowned due to a failure to take any action to help.
2.5 How to identify the actus reus
Consider the following offences:
Section 1(1) Theft Act 1968 provides:
‘A person is guilty of theft if he dishonestly appropriates property belonging to another with
the intention of permanently depriving the other of it.’
Section 1(1) Criminal Damage Act 1971 states:
‘A person who without lawful excuse destroys or damages any property belonging to another
intending to destroy or damage any such property or being reckless as to whether any such
property would be destroyed or damaged shall be guilty of an offence.’ Can you break these offences down into their component parts? What is the actus reus of these offences? What is the mens rea?
2.6 Summary
- In this section you have learnt the definition of actus reus and you have practiced identifying
the actus reus from offences. - The actus reus of an offence can be the prohibited:
- Conduct;
- Result;
- Circumstances; and/or
- Omissions of the defendant.
3 Actus reus: Causation
3.1 Result crimes
Result crimes require that the defendant’s conduct cause a particular result. Result crimes include murder, manslaughter, criminal damage, and assault occasioning actual bodily harm. Causation is part of the actus reus of these types of offences
Two types of causation
There are two aspects to causation, both of which must be proved by the prosecution:
* Factual causation: The jury must be satisfied that the acts or omissions of the accused were in
fact the cause of the relevant consequence.
* Legal causation: It must be established that the acts or omissions of the accused were a legal cause of that consequence.
The actus reus of murder
The actus reus of murder is the ‘unlawful killing of a human being under the King’s Peace’.
The word ‘killing’ suggests that murder is a result crime which requires the prosecution to show
that the defendant’s acts or omissions caused the death of the victim. To do this, the tests of factual and legal causation must be satisfied. We will consider those tests in greater detail now
3.2 Factual causation: The ‘but for’ test
Factually, it must be proved that ‘but for’ the acts or omissions of the accused, the relevant consequence would not have occurred in the way that it did (R v White [1910] 2 KB 124). In other words, if you eliminate the act of the defendant would the prohibited harm have occurred
anyway?
Key case: R v White [1910] 2 KB 124
Facts: W put poison in a drink intending to kill his mother. She was subsequently found dead. It
was not clear on the evidence whether she had drunk any of the liquid from the glass. Medical
evidence showed that she had died from heart failure, not from poisoning.
Held: W was therefore acquitted of murder, there being no causal link between the consequence and his act. However, he was guilty of attempted murder.
Key case: R v Dyson [1908] 2 KB 454
Facts: This was at a time before antibiotics and when meningitis was not curable. The victim, a
child, had meningitis. Dyson threw her down the stairs and she died. It was argued that the child
was going to die in any event, and the actions of the defendant had not caused death.
Held: Any action which accelerates death is a cause.
3.3 Legal causation
The law will step in to prevent a person from being responsible for all acts that arise from their
actions. For example, if X asks Y to a party and on the way to the party Y is stabbed by Z, it is
clear that, but for X’s invitation, Y would not have been on the way to the party, which led Y to
being stabbed by Z. However, X should not be held responsible for the stabbing, and will not be
the legal cause of the attack
Culpability of the defendant
The law will check the culpability of the defendant before imposing liability and it will require that
the defendant is the ‘operating and substantial’ cause of the prohibited consequence (R v Pagett
(1983) 76 Cr App R 279)
Only factors that are relevant
When determining the legal cause, the law may have regard to some of the following factors.
When completing your analysis of given facts you should only deal with the law which is relevant
to the facts of your case. The key legal causation principles are:
* The defendant’s act must be the ‘substantial’ cause of the prohibited harm (R v Hughes).
* The consequence must be caused by the defendant’s culpable act (R v Dalloway).
* The defendant’s act need not be the only cause of the prohibited consequence (R v Benge)
Key case: R v Hughes [2013] UKSC 56
The defendant’s act must be the ‘substantial’ cause of the prohibited harm
Lord Hughes and Lord
Toulson
Where there are multiple legally effective causes, whether of a road traffic accident or of any
other event, it suffices if the act or omission under consideration is a significant (or substantial)
cause, in the sense that it is not de minimis or minimal. It need not be the only or the principal
cause. It must, however, be a cause which is more than de minimis, more than minimal.
Key case: R v Dalloway [1847] 2 Cox CC
Facts: The defendant was driving a horse and cart without holding the reins. A child ran in front of
the cart, he was struck by one of the wheels and killed. It appeared on the evidence that, even if
the defendant had been holding the reins, he could not have stopped the cart in time.
Held: If Dalloway had not been driving the cart, the child would not have been killed, and in that
sense he ‘caused’ the death. However the court held it was necessary to go further and show that the death was due to the culpable element in his act – the negligence in not using the reins.
Accordingly, D’s conduct was not to blame for the killing and he was acquitted of manslaughter.
Key case: R v Benge [1865] 4 F & F 504
Facts: Benge was the foreman of some railway tracklayers. He thought that the next train was not
due for several hours and so ordered the track to be taken up. He sent a man with a red flag down
the track to stop any trains. However, this signalman did not go the correct distance and the
driver of the train was not keeping a good look out. The train crashed and several people were killed and D was tried for manslaughter.
Held: If the defendant’s negligence mainly or substantially caused the accident, it was irrelevant
that it might have been avoided if other persons had not been negligent. A defendant can still be
liable even when other causes were present.
3.4 Legal causation: Intervening acts
A novus actus interveniens is a subsequent event or act of either the victim or a third party which
renders the defendant’s part in the consequence very small, breaking the chain of causation and
meaning that the defendant is not criminally liable. The courts have been required to consider the question of whether the chain of causation has been broken in a number of different contexts such as:
- Medical negligence
- Acts of a third party
- Acts of the victim
- Thin skull rule
- Natural events
3.4.1 Medical negligence
Key case: R v Smith (1959) 2 QB 35
Facts: Smith stabbed the victim during a fight at their barracks and pierced his lung. Another
soldier tried to carry him to the medical station but dropped him twice on the way. On his arrival it
was not realised how seriously ill the victim was and he received treatment that was not only
inappropriate but positively harmful and he died a couple of hours later.
Held: Smith was convicted of murder, because it was held that his actions remained a substantial
and operating cause. The medical negligence, while a cause, was not a sufficient cause to sever
the chain of causation.
Lord Parker LCJ
It seems to the court that, if at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that
death does not follow from the wound.
Key case: R v Cheshire [1991] 3All ER 670
Facts: Cheshire shot the victim twice. Following extensive surgery the victim developed respiratory
problems and required a tracheotomy tube to be inserted into his windpipe. Scar tissue formed
over the tracheotomy hole and the victim found it difficult to breath. The medical staff dismissed
this as anxiety. Eventually his windpipe became completely blocked and he died. At the time of his death, the victim’s original wounds had healed.
Held: The Court of Appeal held that poor medical treatment did not break the chain of causation.
Beldam LJ
Even though negligence in the treatment of the victim was the immediate cause of his death,
the jury should not regard it as excluding the responsibility of the defendant unless the
negligent treatment was so independent of his acts, and in itself so potent in causing death,
that they regard the contribution made by his acts as insignificant. Overall, the courts are reluctant to allow medical malpractice to break the chain of causation.
3.4.2 Acts of third parties
Facts: Using his pregnant girlfriend as a shield, Pagett shot at the police, who were attempting to
arrest him for various serious offences. The police returned fire and killed the girl. The judge,
directing the jurors on causation, stated that they had to be sure that the appellant had fired first
at the officers and that that act caused the officers to fire back, with the result that the girl was
killed.
The jury also had to be satisfied that, in doing so, the police acted reasonably, either by way of self-defence or in the performance of their duties as police officers. The judge said that if they were not sure of those facts then they should acquit because the chain of causation, linking Pagett’s unlawful acts to the girl’s death, would be broken. The jury convicted Pagett, who appealed against his conviction.
Judgement
Held: The Court of Appeal rejected the appeal and held that there may only be a break in the chain of causation if the actions of the third party were ‘free, deliberate and informed. This was not held to be the case here.’ Goff LJ was of the opinion that the police officers’ actions were neither free nor deliberate. Instead, he considered it to be a reasonable act performed for the purpose of self-preservation
3.4.3 Acts of the victim
There are three types of acts of the victim that we will consider:
* ‘Fright and flight’ cases
* Refusing medical treatment
* Suicide
‘Fright and flight’
The issue arises in the context of the victim’s reaction to the defendant’s act. When under attack
or the threat of attack from the defendant, it is plausible to consider that the victim may attempt
to escape from the attack or threat. However, it has been necessary for the law to consider when
such escape attempts can amount to a novus actus interveniens.
Question of foreseability
The issue falls around the question as to whether the escape was foreseeable by the reasonable
person. If it is not, then the defendant is entitled to an acquittal and is no longer deemed to be the
legal cause of the prohibited result.
Key case: R v Roberts [1972] 56 Cr App R 95 (CA)
Facts: The victim was a passenger in Roberts’ car. She was terrified by Roberts’ unwanted sexual
advances and jumped out of the moving car, suffering injuries in the process.
Held: Roberts was convicted of assault occasioning actual bodily harm. The Court of Appeal
considered that the accused had caused her injuries and said that the victim’s reaction would
only break the causation if it were an act that was ‘so daft’ that no reasonable person could have
foreseen it.
Court of Appeal Judgement
Was it the natural result of what the alleged assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing?
As it was put in one of the old cases, it had got to be shown to be his act, and if of course the victim does something so “daft” […] or so unexpected […] that no reasonable
man could be expected to foresee it, then it is only in a very remote and unreal sense a consequence of his assault, it is really occasioned by a voluntary act on the part of the victim which could not reasonably be foreseen and which breaks the chain of causation between the
assault and the harm or injury.
Key case: R v Williams & Davis [1992] 1 WLR 380
Facts: The appellants gave a lift to a hitchhiker and tried to rob the hitchhiker at knifepoint. The
victim jumped from the moving car and died of head injuries.
Held: The appellants were convicted of manslaughter.
Stuart Smith LJ on Appeal
Proportionality
There must be some proportionality between the gravity of the threat and the action of the deceased in seeking to escape from it […] [T]he deceased’s conduct […] [must] be something that a reasonable and responsible man in the assailant’s shoes would have foreseen […]
[T]he nature of the threat is of importance in considering both the foreseeability of harm to the
victim from the threat and the question whether the deceased’s conduct was proportionate to
the threat, that is to say that it was within the ambit of reasonableness and not so daft as to make it his own voluntary act which amounted to a novus actus interveniens and consequently broke the chain of causation
Consideration of two questions
The jury should consider two questions:
- Whether it was reasonably foreseeable that some
harm, albeit not serious harm, was likely to result from the threat itself - Secondly, whether the deceased’s reaction in jumping from the moving car was within the range of responses which might be expected from a victim placed in the situation which he was. The jury should bear in mind any particular characteristic of the victim and the fact that in the agony of the moment he may act without thought and deliberation […]
Characteristics visible to a reasonable man
From the case of Roberts, in determining whether the victim’s action was a foreseeable mode of
escape, the jury would essentially have the same knowledge as the defendant had at the time D
committed the act. As the court in Williams and Davies approved the case of Roberts it is generally believed that the characteristics Stuart Smith LJ was referring to were those characteristics which would be visible to a reasonable man present at the time of the defendant’s
act.
Refusal of Medical Treatment
The courts have also considered what the position would be where the victim refuses medical
treatment, which results in their death.
We will consider three cases:
* R v Blaue
* R v Holland
* R v Dear
Key case: R v Blaue [1975] 1WLR 1411
Facts: Blaue stabbed a woman several times and pierced her lung. The victim refused to have a
blood transfusion, as it was contrary to her religious beliefs. She was advised that without a transfusion she would die. She refused to have the transfusion and subsequently died. The defendant was convicted of manslaughter. He appealed against his conviction, arguing that the victim’s refusal to have a blood transfusion amounted to a novus actus interveniens.
Held: This argument was rejected. Defendants must take their victims as they find them and that
meant the whole person, in both mind and body.
Key case: R v Holland [1841] 2 Mood & R 351
Facts: The deceased was attacked by Holland and suffered a number of wounds, which included
a severely cut finger. The surgeon advised that he should have the finger amputated in order to
prevent the wound from becoming infected. The deceased ignored the surgeon’s advice. Several
weeks later he contracted tetanus from the wound and died. The defendant argued that the
cause of death was not the wound, but the refusal to accept treatment
Held: The court held that this was no defence. It did not matter whether the wound was instantly
mortal or whether it became the cause of death because the deceased refused the recommended
treatment.
Key case: R v Dear [1996] Crim LR 595 (CA)
Facts: The appellant’s 12-year-old daughter told him that the victim had sexually assaulted her.
The appellant repeatedly slashed the victim with a Stanley knife. Subsequent to receiving medical
treatment, the victim’s wounds opened up and two days later the victim died. D claimed that the
chain of causation had been broken because V had died by suicide, either by reopening his wounds or, the wounds having reopened naturally, by failing to take steps to staunch the consequent blood flow. Dear was convicted of murder.
Held: The Court of Appeal rejected his appeal. Rose LJ held:
The correct approach in the criminal law is to ask […] were the injuries by the defendant an operating and significant cause of death? That question, in our judgment, is necessarily answered, not by philosophical analysis, but by common sense according to all the
circumstances of the particular case.
Held: The Court of Appeal rejected his appeal. Rose LJ held:
In the present case the cause of the deceased’s death was bleeding from the artery which the
defendant had severed. Whether or not the resumption or continuation of that bleeding was
deliberately caused by the deceased, the jury were entitled to find that the defendant’s
conduct made an operative and significant contribution to the death.
Suicide (Exceptions to breaking the chain of causation)
The victim’s suicide may not break the chain of causation if:
* V nonetheless dies from the original wound (R v Dear); or
* The act was reasonably foreseeable eg where the defendant causes a brilliant pianist to lose
her fingers, or a keen sportsman to be paralysed (applying the rule in R v Roberts and R v
Williams and Davies); or
* The D’s unlawful act was a significant and operating cause of death and at the time of the
attack it was reasonably foreseeable that the victim would die by suicide as a result of V’s
injuries (R v Wallace).
Suicide will break chain of causation
The injuries inflicted by the defendant have healed, but the victim goes on to die by suicide
(distinguishing R v Dear); or
* It was a voluntary and informed decision of the victim to act (R v Kennedy).
3.4.4 The ‘thin skull’ rule
The ‘thin skull’ rule provides that a person who inflicts harm on another cannot escape liability if
the victim, owing to some pre-existing infirmity or peculiarity, suffers greater harm than would
have been expected as a result of what the accused has done.
Put simply, the defendant must take the victim as they find them.
Key case: R v Hayward [1908] 21 Cox 692
Facts: Hayward, who was in a rage, threatened his wife and chased her into the road. She collapsed and died. She was suffering from an abnormal thyroid condition, such that any combination of physical exertion and fear might lead to death.
Held: It was held that Hayward had caused her death because he had to take her condition as he
found it.
See also R v Blaue (acts of the victim, refusal of medical treatment).
3.4.5 Natural events
Natural events will only break the chain of causation if they are ‘extraordinary’ and not
reasonably foreseeable. For example, if D knocks V unconscious and leaves V on the beach then V is drowned by the incoming tide, D has legally caused V’s death. The natural event of the tide coming in is
reasonably foreseeable.
3.4.6 Which test should I use?
When dealing with a situation that is similar to facts of previously decided cases, reference should
be made to the relevant case for direction on what is required for the new intervening act to break
the chain of causation. Usually this will be straightforward. However, in the event of new situations
arising, the Court of Appeal in R v Girdler [2009] EWCA 2666 has directed use of common sense
when deciding which test to use.
Summary
- Result crimes require that the conduct of the defendant cause a particular result.
- There are two aspects to causation, both of which must be proved by the prosecution:
- Factual causation: It must be proved that ‘but for’ the acts or omissions of the accused, the
relevant consequence would not have occurred in the way that it did (R v White). - Legal causation: The defendant must be the ‘operating and substantial’ cause of the
prohibited consequence (R v Pagett).
- Omissions
General Rule
The general rule is that a defendant cannot be criminally liable for a failure to act, as there is no
general duty to act to prevent harm – R v Smith (William) [1826] 2 C&P 449: ‘Omission, without a
duty, will not create an indictable offence
In order to secure a conviction based upon a failure to act, the prosecution must prove that:
(a) The crime is one which is capable of being committed by an omission. Some offences can
only be committed by an act, eg unlawful act manslaughter (R v Lowe);
(b) The accused was under a legal duty to act;
(c) The accused breached that duty;
(d) The breach caused the actus reus of the offence to occur; and
(e) Should the offence so require, that the accused had the required mens rea.
Common situations when the defendant will be under
a legal duty to act are:
By: statute, special relationship, voluntary assumption, contract, the
defendant creating a dangerous situation or public office
4.2 Statutory duty
Under statutes, innumerable offences can be committed by an omission. Many examples can be found in the less serious/summary only offences. Such an example can be found in s 6(4) Road Traffic Act 1988, where it is an offence to fail to provide a specimen of
breath.
4.3 Special relationship
Examples of special relationships are:
* Doctors and patients
* Parents and their children
* Spouses
Key case: R v Hood [2004] 1 Cr App R (S) 431
Held: D was held to be liable for the manslaughter of his wife who died as a result of broken bones
suffered three weeks earlier after a fall. D had failed to summon medical assistance to help her.
The basis of his liability, it seems, stemmed from his relationship with her, based on marriage.
Key case: R v Gibbons and Proctor [1918] 13 Cr App R 134
Facts: Gibbons lived with his girlfriend, Proctor, together with his child, Nelly, and Proctor’s
children from a previous relationship. Gibbons gave Proctor money for food for the family. Proctor deliberately starved Nelly to death.
Judgement in Key case: R v Gibbons and Proctor [1918] 13 Cr App R 134
Held: The Court of Appeal noted that Gibbons was living in the same house as Nelly. It said he
must have been aware of the condition of his daughter, who was little more than a skeleton when she died. If he did not see her, then that is evidence from which the jury could have decided he did not care what was happening to her and had the mens rea for murder. Gibbons was convicted of his daughter’s murder based on breach of his duty as a father not to neglect her
Key case: Re A (Children (Conjoined Twins)) [2000] 4 All ER 961 (CA)
Both children were certain to die in the absence of a surgical procedure to separate them. The
operation would save one twin, but the parents would not give their consent. The judge observed that the parents had a legal duty to the twin who could be saved. By denying that twin the chance to live, they might be guilty of killing her under the principle in Gibbons and Proctor.
4.4 Voluntary assumption of a duty of care
A person is not generally under a duty to care for another in distress. However, if a person
voluntarily assumes a duty towards another, the law will hold that person liable if they fail to
carry out that duty. The basis on which the courts have held a voluntary assumption of a duty of care to exist is often factually specific as can be seen by the cases that follow.
Key case: R v Nicholls [1874] 13 Cox CC 75
If a person chooses to undertake the care of a person who is helpless either from infancy,
mental illness or other infirmity, he is bound to execute that responsibility and if he by gross
negligence allows him to die he is guilty of manslaughter (Per Brett J).
Key case: R v Gibbons and Proctor [1918] 13 Cr App R 134
(see also special relationship, parents)
Held: Edith Proctor was also convicted of Nelly’s murder, on the basis that Proctor was living in the same household, in the role of Gibbons’ de facto wife. She was looking after ‘the family’ while Gibbons went out to work, and received money for housekeeping and food from Gibbons
Key case: R v Instan [1893] 1 QB 450
Instan lived with her aunt, who was 73 years old. Her aunt gave Instan money to provide both of
them with food. The aunt developed gangrene in her leg and became bedridden. Instan used the money to buy food for herself but did not give any to her aunt, nor did she summon medical assistance. The aunt died and Instan was convicted of her manslaughter due to voluntary
assumption of a duty of care.
Key case: R v Stone and Dobinson [1977] QB 354
Facts: Stone lived with his mistress Dobinson. They were both of low intelligence and described as ‘inadequate’. They both accepted into their home Stone’s elderly, weak and anorexic sister, Fanny. They tried to make her eat but gave up. Eventually Fanny was confined to her bed and Stone and Dobinson failed to get medical assistance. As a result Fanny died.
Judgement
Held: Stone and Dobinson were convicted of her manslaughter, and their convictions were upheld, on the basis that, although neither was under a duty imposed by law to care for an ailing relative, they had voluntarily assumed this duty upon themselves.
Key case: R v Ruffell [1977] QB 354
Facts: The victim was at R’s house. They were taking drugs. V became unconscious and R tried to revive him. He telephoned V’s mother the next day. R said that V was ill and sitting on R’s doorstep. V’s mother told R to take V inside and keep him warm. R agreed, but did not, returning to bed. Later V was found by a passer-by, taken to hospital and he died. The trial judge directed the jury that a duty of care could be assumed: V was a friend, V was in R’s house, R had attempted to revive him. The jury was told if they decided R had assumed this duty, they were entitled to decide whether by putting V outside R had breached that duty. The jury decided in the affirmative and R was convicted
Held: The Court of Appeal followed the approach taken in Stone and Dobinson and upheld the conviction.
4.5 A breach of a contractual duty
The duty can be owed by the defendant either to the party with whom the defendant is
contracted or to a third party.
Key case: R v Pittwood [1902] 19 TLR 37
Facts: Pittwood was employed as a level-crossing gatekeeper. He failed to close the gate when a
train was coming and a man was killed by the train.
Held: Pittwood’s failure to close the gate could amount to the actus reus of manslaughter by
omission, because he was under a contractual duty to do so when a train was approaching.
4.6 Defendant creates a dangerous situation
If a person accidently started a fire in a house, the person has a duty to take reasonable steps to
counteract the dangerous situation created. The steps need only be reasonable, so a person
would not be expected to risk their own life to save the lives of others, but they would be expected to take reasonable steps, such as summoning help, warning any occupants of the house that it is on fire, and so on.
Key case: R v Miller [1983] 2 AC 161 (per Lord Diplock)
Facts: Miller, a squatter, fell asleep in a bed whilst holding a lighted cigarette. He awoke to find the mattress smouldering. He realised it was his cigarette that had caused the fire, but all he did was to move to another room and go to sleep again. The house was damaged by fire.
Held: Miller was convicted of arson (Criminal Damage Act 1971, s 1(1) and s 1(3)).
House of Lords
The House of Lords held that if someone inadvertently sets in motion a chain of events that causes the risk of damage, and that person becomes aware of what is happening and he can prevent further damage, his inaction or omission to do so can become an actus reus of criminal damage.
Lord Diplock
I see no rational ground for excluding from conduct capable of giving rise to criminal liability,
conduct which consists of failing to take measures that lie within one’s power to counteract a danger that one has oneself created, if at the time of such conduct one’s state of mind is such as constitutes a necessary ingredient of the offence.
Key case: R v Evans [2009] 1 WLR 1999
Facts: Gemma Evans, a 24-year-old woman, purchased heroin and supplied her 16-year-old
sister, Carly. Carly self-injected in a house in which she resided with Evans and her mother
(Andrea Townsend). After injecting the drug, she developed and complained of symptoms
consistent with an overdose. Gemma Evans and Andrea Townsend were also heroin addicts, they knew the signs of an overdose and were fully aware of the dangers involved. They appreciated that Carly’s condition was very serious and indicative of an overdose
Key case: R v Evans [2009] 1 WLR 1999
Evans said that she had
seen that Carly’s lips had turned blue, that she was ‘in a mess’, and was incapable of responding
to attempts to speak to her. Evans and Townsend decided not to seek medical assistance because they feared that they themselves and possibly Carly would get into trouble. Instead, they put Carly in bed with the hope that she would make a miraculous recovery.
Although the women slept
in the same room and checked on Carly occasionally, Carly died during the night. The medical
evidence demonstrated that the cause of death was heroin poisoning. Evans and her mother were charged with gross negligence manslaughter.
Appeal against convictions
Evans appealed against her conviction for gross negligence manslaughter. It was argued by the defence team that the case should have been withdrawn from the jury because the Crown failed to establish that Evans owed the victim a duty of care.
Judgement
Adult Sibling Relationship
Held: The mother was convicted on the basis of her ‘familial duty or responsibility which marked
her relationship with the deceased’ and which required her to take responsible steps to summon assistance for her young daughter once she realised she was critically ill and in need of urgent medical attention. Since Evans was an older half-sister, the court decided that she did not come within the purview of the familial duty doctrine. An adult sibling is not regarded as the constructive guardian of younger siblings.
