Essential crim cases (intent,causation,duty of care) Flashcards
Attorney-General’s Reference (No 3 of 1994) [1997] 3 All ER 936, p.253, per Lord Mustill (HL)
The legal source for the murder definition
R v Moloney [1985] AC 905 (HL)
“The golden rule should be that, when directing a jury on the mental element necessary in a crime of specific intent, the judge should avoid any elaboration or paraphrase of what is meant by intent, and leave it to the jury’s good sense to decide whether the accused acted with the necessary intent, unless the judge is convinced that, on the facts and having regard to the way the case has been presented to the jury in evidence and argument, some further explanation or elaboration is strictly necessary to avoid misunderstanding.”
approach for oblique intent; “In the rare cases in which it is necessary to direct a jury by reference to foresight of consequences, I do not believe it is necessary for the judge to do more than invite the jury to consider two questions. First, was death or really serious injury in a murder case (or whatever relevant consequence must be proved to have been intended in any other case) a natural consequence of the defendant’s voluntary act? Secondly, did the defendant foresee that consequence as being a natural consequence of his act? The jury should then be told that if they answer yes to both questions it is a proper inference for them to draw that he intended that consequence.
R v Woollin [1999] AC 82 (HL)
The courts have held that the defendant must foresee the consequences as virtually certain to occur: Woollin (1999).
-this case approved the nedrick ruling
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“Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to find the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant appreciated that such was the case.
R v Nedrick
1986
The defendant poured paraffin through a woman’s letterbox. He set the paraffin alight, burning down the house and killing the woman’s child. The defendant claimed that he didn’t want anyone to die and that he did it ‘[j]ust to wake her up and frighten her’.
charged with manslaughter
-builds upon and adapts dpp v hyam
This authority marked a clear move away from the word ‘probability’ and towards a greater degree of ‘certainty’. The ‘virtual certainty’ test in Nedrick is a much narrower test than the ‘highly probable’ test applied in Hyam. This ensures a clearer distinction between the concepts of oblique intent and recklessness. With the use of the phrase ‘entitled to infer’, the Court of Appeal in Nedrick was also concerned to emphasise that foresight of a result as a virtually certain consequence is merely evidence of intention. It does not equate to intention as a matter of law
Hyam v DPP [1975] AC 55,
a person would have the required mens rea for murder where they had knowingly committed an act which was aimed at another, with the intention of causing death or serious injury
r v hancock
In this judgment, it was established that when directing a jury concerning the issue of intent based on foresight of consequences, using the term “natural consequences” alone was insufficient to imply probability. The judge should explicitly reference probability and explain to the jury that the higher the probability of a consequence, the more likely it is that the consequence was foreseen. Furthermore, if the consequence was foreseen, it was also more likely that it was intended.
dpp v smith 1961
Intending to cause grievous bodily harm?
‘GBH means ‘really serious harm’
Kennedy (No 2) [2007] UKHL 38
To prove the defendant caused the victim’s death, it must be shown that she was both a factual and legal cause of the death.
facts of kennedy no 1
In 1997, Kennedy charged by Crown Prosecution Service with supply of a Class A drug and manslaughter for Bosque’s death.
Kennedy convicted after trial at the Old Bailey in London.
In 1999, Kennedy appeals against his conviction to the Court of Appeal.
Court of Appeal rejects appeal and upholds conviction in Kennedy (No 1) [1999] Crim LR 86
Criminal Cases Review Commission question safety of conviction and appeal the conviction before Court of Appeal in 2004.
CCRC argues that Kennedy could not have been the legal cause of Bosque’s death due to Bosque’s own independent act of voluntary self-injection.
In 2005, the Court of Appeal rejects the appeal but House of Lords gives leave to Kennedy to appeal against that decision
facts of kennedy no 2
The key question before the House of Lords was whether the victim’s act in self injecting was an intervening act such as to break the chain of causation. An additional question was which unlawful act the manslaughter conviction should properly have been based
The House of Lords’ decision on this question in 2007 achieved two outcomes:
It led the House of Lords to quash Kennedy’s conviction – acquitting Kennedy (he had already served his 5 year sentence but could now seek compensation from the Criminal Cases Review Commission for this miscarriage of justice)
The decision set a new leading case law precedent known by lawyers today as Kennedy (No 2) which established a new set of legal principles on the issue of criminal causation
NB – on 1 Oct 2009, the House of Lords Appellate Committee was reconstituted as the UK Supreme Court by the Constitutional Reform Act 2005.
berlinah wallace
provided some guidance on law of causation;
First, the Court of Appeal somewhat blurred the question of whether the key test for causation is whether the defendant’s act was a substantial and operating cause of the death; or whether the death was a reasonably foreseeable consequence of the defendant’s act. Indeed, in the direction proposed by the Court of Appeal, it seems the jury should consider both questions
2=Second, Sharp LJ’s judgment did somewhat blur the questions of whether the victim’s acts were free, voluntary, and informed and whether the doctor’s acts were free, voluntary, and informed. There was some weight attached to the fact the doctors were acting lawfully within Belgian law and acting in reliance of the victim’s wishes.
3=Third, in line with earlier case law, Sharp LJ emphasized that the law on causation was not simply a matter of applying rules, but involved considering ‘common sense’. This acknowledges that the law’s approach to causation can involve questions of morality, public policy, and jurisprudence, as well as legal rules
r v evans facts
R v Evans [2009] EWCA Crim 650
Gemma Evans, 24, gave Carly Townsend, her 16-year-old half-sister, some heroin. Carly self-injected the heroin and then developed and complained of symptoms which Evans recognised as consistent with a heroin overdose.
Evans and her mother, also a heroin user, believed that they were responsible for the care of Carly but they decided not to seek medical assistance because they feared that they, and possibly Carly, would get into trouble. Instead they put Carly to bed, hoping that she would recover spontaneously. They remained at the house, checking on Carly at intervals and then sleeping in the same room as her.
The following morning Evans was woken by her mother who told her that Carly was dead. The cause of death was heroin poisoning.
Gemma Evans was arrested and charged with Carly’s manslaughter
court of appeal deciison on r v evans
“for the purposes of gross negligence manslaughter, when a person has created or contributed to the creation of a state of affairs which he knows, or ought reasonably to know, has become life threatening, a consequent duty on him to act by taking reasonable steps to save the other’s life will normally arise.” (para 31)
court of appeals comment in r v evans on omissions
Court noted that it was not possible to find Evans guilty of manslaughter for supplying the drugs following the precedent in Kennedy (No 2)
“The problem of fixing liability, whether in tort or in crime, on the basis of omission has generated much, indeed prolonged, debate. The Good Samaritan would have been disconcerted to discover that, at common law, absent a pre-existing responsibility for the child, a fit strong adult could watch him drown in shallow water although he was within easy reach and safety.” (para 17)
However, Court recognised established common law precedent in e.g. Miller in 1983 that omissions liability could be found where a defendant ‘creates a dangerous situation’ leading to ‘a duty to act
r v evans omissions and outcome
Appeal dismissed. It was held that none of the previous authority Evans referred to had dealt with manslaughter. Applying R v Adomako [1994] 3 All ER 79, R v Miller [1983] 2 AC 161 and R v Kennedy [2007] All ER (D) 247 (Oct), it was held that in cases of gross negligence manslaughter, if an individual caused or contributed to creating a life-threatening situation; a consequent duty would normally arise to take reasonable steps to save the person’s life. On the facts of this case, Evans created such a situation by providing the heroin to her half-sister and had not taken subsequent steps to negate the danger created.
