general part Flashcards
ambiguous distinction between act and omission? case example?
The court found that terminating Bland’s life-prolonging treatment amounted to an omission, rather than an act
Would apply even if it required a positive act (e.g. switching off a machine)
Lord Goff: “The doctor’s conduct is to be differentiated from that of, for example, an interloper who maliciously switches off a life support machine because, although the interloper may perform exactly the same act as the doctor who discontinues life support, his doing so constitutes interference with the life-prolonging treatment then being administered by the doctor.”
“Accordingly, whereas the doctor, in discontinuing life support, is simply allowing his patient to die of his pre-existing condition, the interloper is actively intervening to stop the doctor from prolonging the patient’s life, and such conduct cannot possibly be categorised as an omission.”
what is an omission, according to Ashworth?
two elements: a duty to do x, and whether in the factual circumstances the person had the opportunity and capacity to do x”
arguments for easy rescue duty?
1) Ashworth
Source of omissions liability stems from social responsibility
Individuals require cooperation within a community
Communitarian social philosophy: A level of social cooperation and social responsibility is good and necessary for the realisation of individual autonomy, imposition of minimal duties maximises liberty
Individualism and the autonomy principle “defend on a narrow, individualistic conception of human life which should be rejected as a basis for morality”
2) Harm principle
Feinberg: It is always a good reason in support of criminalisation that this would probably be effective in preventing harm to persons other than the actor and there is probably no other means that is equally effective at no greater cost in other values
3) Culpability
Edwards and Simester: What makes D blameworthy for an act is their engagement with the reasons that bear on what they do → You are blameworthy if your practical reasoning is deficient
This is fulfilled when someone decides not to save a drowning baby out of mere inconvenience → Gross disregard for the lives of others
arguments against easy rescue?
1) Non-equivalence: Acts are more culpable than omissions
Williams: One of the reasons for the narrow treatment of omissions liability is that there is a “moral distinction” felt between act and omission; acts are generally regarded as more culpable, more wrong than omissions
Response: Ashworth: “An easy rescue offence…is perfectly compatible with the intuition that people are generally less responsible for omissions than for acts…one can reject the equivalence thesis….but that has no bearing on the acceptance or rejection of the case for criminalising a failure to effect an easy rescue”
2) Autonomy
Williams: “Expanding omissions liability unjustifiably restricts bodily liberty”
Simester and Sullivan: … mandating specified positive acts, is more intrusive on individuals’ autonomy and freedom than is the prohibition of acts
3) Rule of law objections
Phrasing of easy rescue duty is difficult, would create rule of law objections
Outlined by Ashworth: . Omissions law creates difficulties in this respect insofar as it relies on concepts such as ‘reasonable steps’ and ‘such steps as could reasonably be expected’”
6) Causation (Herring)
D who does not rescue a drowning child cannot be said to cause the child to drown → His failure to intervene did not change the course of events
does omissions liability go too far? case examples?
Evans: Extension of duty to intervene to situations where D has caused or contributed to the creation of a life-threatening situation went much further than Miller, and contradicted the spirit of Kennedy that causation cannot be traced through the voluntary act of another
Stone and Dobinson: Extend the law on assuming a duty of care → “extended the law with such elasticity that the defendants were surely “unaware until after the event whether there conduct was capable of being regarded as criminal”
Crosby: Clearly conscious awareness of the danger, at least in circumstances where it is life threatening, is no longer essential according to Evans. It is enough that a person should have realised there was danger
what is the harm principle?
Herring: Harm principle opposes moralism
Moralism: What is immoral should be criminal, because the function of the law is to promote good character (Wall)
Role of the harm principle (Herring)
All harmful conduct should prima facie be unlawful unless there is a good reason otherwise (Hirsch)
THE reason in favour of criminalisation (Luna)
A reason for criminalisation (Feinberg; Clarkson)
Feinberg: It is always a good reason in support of criminalisation that this would probably be effective in preventing harm to persons other than the actor and there is probably no other means that is equally effective at no greater cost in other values
A gatekeeper (Herring)
Mill: “The only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others.”
Conduct which is not harmful should not be considered for criminalisation
Bogg and Stanton Ife: The harm principle tells us that the law should not be used to punish harmless activities. But it does not tell us how or even when harmful activities should be dealt with by law
Permits the criminalisation of either (a) wrongfully inflicted harms, or (b) harmless wrongs, if their wider occurrence would tend to cause harm and criminalisation would reduce their occurrence. (Shute)
E.g. Dangerous driving
two cases of lacunae identified by Taylor J in obiter which would allegedly fall outside Lord Diplock’s definition of recklessness
1) M considers whether there is a risk, but mistakenly concludes there is no risk, missing an obvious and substantial risk
M would not be reckless, because he did not recognise there was some risk involved
2) M is aware that there will be a risk, takes precautions that are expected to eliminate the risk, and the risk materialises
M would be reckless because M recognised there was a risk and went on to do the act → Minimisation of risk does not negate awareness of the risk
exception of recklessness rule in parker [1977]?
Note: If there is a conflict between Parker and G, G must prevail because it is a more recent decision by the UKSC (versus the CA in Parker)
If want to apply Parker over G in case of an obvious risk, prove that they do not conflict in those particular facts (e.g. M did not consider the risk, but can still be held as aware of the risk because consideration is not the same as awareness)
ibbetson’s argument regarding r v g in recklessness restored?
If Parker should be convicted, we must recognise that the purely subjective analysis of recklessness is not in itself enough → Principled mid-position between objectivism and subjectivism has to be reached if unacceptable results are to be avoided
It is impossible to give a closed list of situations in which D is not blameworthy for lack of foresight of risk
It might have been easier to start with the objective test of Caldwell and exclude situations where the actor was not to blame for having failed to recognise the risk
Dhaliwal [2006] EWCA Crim 1139
D, V’s husband, verbally and physically abused V over many years. V committed suicide. Psychiatric evidence suggested that the primary cause for V’s suicide was the experience of being physically abused by her husband in the context of experiencing many such episodes over a prolonged period of time.
Court held that unlawful violence on an individual with a fragile and vulnerable personality, which is proved to be a material cause of death (even if the result of suicide) would at least arguably, be capable of amounting to manslaughter. (Note, did not produce a decision on this matter)
moloney’s golden rule?
Moloney: Golden rule: Judges should not elaborate on intent, and “leave it to the jury’s good sense to decide whether the accused acted with the necessary intent”
If necessary to elaborate:
1) Was the consequence a natural consequence of the defendant’s voluntary act?
2) Did the defendant foresee that consequence as being a natural consequence of his act?
If the answer to both is yes, jury is entitled to find that D intended the consequence
Law Commission’s proviso (Consultation Paper 177)
Proviso: A person is not to be deemed to have intended any result, which it was his or her specific purpose to avoid
new defence in medical contexts?
Provides a concealed defence that can be controlled tightly by the courts, accepting some purposes as legitimate and others as illegitimate
Pros and cons of discretion
Pros: Claimed to reflect views of moral culpability without creating the danger that false or meritless defences might succeed
Cons: Discretionary nature; there is no clear or predictable ground of exculpation upon which individuals can rely to guide their conduct
two proponents of the subjectivist and objectivist view of MR respectively?
subjectivist: Glanville Williams, Sir John Smith
objectivist: Horder, A Norrie
define recklessness
D acts recklessly if:
(a) He believes his conduct will risk doing that action; and
(b) It is unreasonable for D to run the risk that he believes to exist
Reasonability is an objective question → Would an ordinary and prudent person have been prepared to take that risk?
Includes factors such as: Probability of the risk occurring, nature and gravity of harm being risked, social utility of defendant’s conduct (e.g. medical procedure vs playing russian roulette)
intoxication doctrine in majewski [1977]?
Where the defendant does not have the requisite mens rea due to being voluntarily intoxicated, he is not guilty if the crime is one of specific intent, but is guilty if the crime is of basic intent
Lord Elwyn-Jones: “If a man of his own volition takes a substance which causes him to cast off the restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition””
Lord Edmund-Davies: “A person who voluntarily became intoxicated is to be regarded as acting recklessly, for he made himself dangerous in disregard of public safety.”
problems with subjectivist approach
Kimmel
D should be liable for recklessness even if he was unaware of a risk if his failure to realise the risk involves equal blameworthiness to one where an unreasonable risk is consciously taken
Lord Bingham is mistaken to assume that those who are unaware of a risk are merely cases of “stupidity or dull imagination”; “in others far more serious vices may be at stake: a genuine disregard for the safety of others, a glaring insensitivity to others’ legitimate interests or well-being, and the like”
Crosby
Failing to think about a risk would not ground criminal culpability
E.g. M is a very self-involved person, who does not consider that throwing bricks of the roof of a building would smash someone on the head
compromises between objective and subjective approach?
Duff: practical indifference test
D’s conduct, including:
1) any conscious risk taking
2) any failure to notice an obvious risk created by her action
3) any unreasonable beliefs on which she acted;
display an seriously culpable practical indifference to the interests which the agent’s action in fact threatened.
Norrie critique: incompatible with prevailing legal and social order
capacity based test
Fletcher: We blame people for traits which we properly expect them to control (e.g. greed, jealousy)
problems with caldwell recklessness?
Overinclusion
Per G, would hold children and the mentally disabled against the standard of a reasonable person
Underinclusion
A defendant with specialist knowledge who identifies a risk and takes it anyway would not be held as reckless
Risk would not be obvious to the ordinary prudent man
problem with cunningham recklessness?
Cunningham recklessness: Underinclusion
1. Failing to think about a risk would not ground criminal culpability
E.g. M is a very self-involved person, who does not consider that throwing bricks of the roof of a building would smash someone on the head
2. Risks undermining confidence in criminal justice system → If the members of the jury accept that D did not foresee the risk, they must acquit, even where D should have foreseen it and was capable of such foresight
Amirthalingam: “blind adherence to subjectivism’ can result in a gap between the legal test of mens rea and the community’s sense of moral wrongdoing
Evans [2009] 1 WLR 1999
Manslaughter by omission can only arise when a duty to act exists
For the purposes of gross negligence
manslaughter, if a person created or contributed to the creation of a state of affairs which he knew, or ought reasonably to have known, had become life threatening, a consequent duty would normally arise on him to act by taking reasonable steps to
save the others life
Facts:
D supplied V with heroin, with which she self-injected
D then later passed away with cause of death being drug overdose
Issue: It is whether, notwithstanding
that their relationship lacked the features of familial duty or responsibility
which marked her mothers relationship with the deceased, she was under
a duty to take reasonable steps for the safety of the deceased once she
appreciated that the heroin she procured for her was having a potentially
fatal impact on her health.
Judgment:
Duty of care was a question of law to be decided by the judge
These authorities are consistent with our analysis. None involved
what could sensibly be described as manslaughter by mere omission and in
each it was an essential requirement of any potential basis for conviction
that the defendant should have failed to act when he was under a duty to do
so. The duty necessary to found gross negligence manslaughter is plainly not
connected to cases of a familial or professional relationship between the
defendant and the deceased. In our judgment, consistently with Rv
Adomako [1995] 1 AC 171 and the link between civil and criminal liability
for negligence, for the purposes of gross negligence manslaughter, when a
person has created or contributed to the creation of a state of a›airs 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 others
life will normally arise
R v Wallace [2018] EWCA Crim 690
- Shifted the test for legal causation from ‘operating and substantial’ cause to ‘operating and significant’
- The requirement of a ‘voluntary’ act by the victim or a third party for the novus actus interveniens rule to apply and break the chain of legal causation can be interpreted to require an intervening act committed with ‘free and unfettered volition’
Facts: D, ex-partner of V, poured acid onto V’s face
V was permanently disfigured, suffering severe physical and psychological pain
Months later, V travelled to Belgium, where, upon further severe medical complications, he requested for and was legally euthanized by a doctor’s injection
On the case of murder (among other offences also being prosecuted) D’s counsel argued that legal causation was not present, and there was therefore no case to answer, as the act of the doctor’s injection constituted a novus actus interveniens
May J in the Crown Court agreed and withdrew the case of murder from the jury
The prosecution appealed
Appeal allowed; causation could be found by a jury, and a new trial was therefore ordered
Sharp LJ
Requirement for Novus Actus Interveniens
“Mr van Dongen’s death, his request to the doctors, and the act of euthanasia itself carried out in accordance with his wishes, were not discrete acts or events independent of the defendant’s conduct, nor were they voluntary, if by this is meant they were the product of the sort of free and unfettered volition presupposed by the novus actus rule”: [61]
Approach to Causation
“The correct approach in the criminal law is that enunciated in Smith and the other authorities to which we have referred: were the injuries inflicted 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.” [69]
The present case
“In the event we consider that the jury could conclude on the facts as they were here that the acts of Mr van Dongen and the doctors were not sensibly divisible; tha the doctors’ (lawful) conduct in carrying out with their hands what he could not carry out with his own were not sensibly divisible; that the events instigated by the defendant and, notwithstanding the intervening act of Mr van Dongen, and/or the doctors, the defendant’s conduct could fairly be said to have made a significant contribution to Mr van Dongen’s death… [I]n the light of the decision in Dear the seeking of death (suicide in that case) as a response to horrific injuries does not preclude the jury finding that the defendant’s conduct made a significant contribution to Mr van Dongen’s death.” [85]
Commentary
From J. Herring, ‘Texts, Cases, and Materials (9th edn)’
The ‘Unfettered’ Requirement
“Neither the victim nor the doctors were unfettered. They were under considerable pressure to act as they did as ‘a direct response’ to the defendant’s act. It is not quite clear how the courts will interpret this ‘unfettered’ requirement in future cases. One could say that the drug-using victim in Kennedy was pressurized by their love of drugs and so was not ‘unfettered’”: p. 90
Shift from ‘Substantial’ to ‘Significant’
“The shift from ‘substantial’ to ‘significant’ makes it clear that even if a jury were persuaded the doctor was the main cause of death, the stab wound could still be a significant (even if secondary) cause of death”: p. 84
- Controversial
- Injuries were still a significant and operating (Smith approach) cause of death
Cunningham [1957] 2 QB 396, [1957] 2 All E.R. 412
Facts
The appellant removed a gas meter in order to steal the money inside. The meter however was connected to the neighbouring house which was occupied by the appellant’s future mother-in-law. At the time he did this, she was in her property asleep. The removal of the meter caused gas to leak into her property, which in turn lead to her being poisoned by the gas. The defendant was charged with unlawfully and maliciously endangering his future mother-in-law’s life contrary to the Offences Against the Person Act (OAPA) 1861, section 23. The appellant was convicted at trial, with the judge instructing the jury that for the meaning of “malice” in this context is “wicked” or otherwise “–
“something which he has no business to do and perfectly well knows it” (p.3).
The case was appealed by the appellant on the basis of this instruction to the jury in addition to arguing for a lack of mens rea to cause harm.
Issue
The issue in the case was whether the trial judge had erred in his instruction to the jury and what is the correct meaning of malice. The broader issue in the case was what amounts to intention for the purposes of s.23 of OAPA 1861.
Decision / Outcome
The appellant’s conviction was quashed on the grounds that the judged had erred in describing the meaning of “malicious” as “wicked” – this was an incorrect definition and the trial judge misled the jury into believing that if the appellant had acted wickedly he had also acted maliciously. The correct test for malice was whether the defendant had either actual intent to cause harm or was reckless as to the possibility of causing foreseeable harm. This is known as “Cunningham Recklessness”. The jury should have been left to decide whether, even without intending to cause harm, the appellant removed the gas meter despite foreseeing that its removal could cause harm to his future mother-in-law.
Stephenson [1979] QB 695, [1979] Crim. L.R. 590
Key point: confirmed subjective element of recklessness in context of the CDA
Facts: The appellant suffered from schizophrenia and tried to light a fire to the inside of a straw heap to keep warm
Appealed against conviction, as judge did not make sufficiently clear the subjective element
Expert evidence confirmed he may have lit the fire without considering the risk
A man is reckless when he carries out a deliberate act appreciating that there is a risk that property may be damage. The risk must be in all the circumstances unreasonable for him to take.
Risk being obvious is evidence that D was aware of the risk
He can foresee the risk then push it to the back of his mind (Parker)
Mere existence of mental defect does not preclude jury from finding liability based on all of the evidence
