Unit 3- in a Nutshell

Unit 3- In a nutshell Establishing a Duty of care

Remember to prove liability if there is an omission to act or gross negligent manslaughter you must prove a duty of care.

Omissions; was there a Duty to act?

Duty to Act

Parents/Child: Gibbons V Proctor (1918)

Duty due to contract R V Pittwood (1902)

Duty due to public office

R V Dytham (1979)

Voluntary assumption of duty

R V Stone & Dobinson (1977)

Duty arising due to dangerous conduct

R V Miller Causation

Factual (But for test)- R V White

Legal (Significant operative cause)

a) Only unreasonable actions from defendant will break chain of causation.

b) Actions of 3rd parties will only break chain if they are not reasonably foreseeable

R V Pagett (1983)

R V Jordan (1956)

R V smith (1959)

R V Cheshire (1991) Medical treatment can only break chain of causation if it is so independent of Ds actions that it renders them insignificant.

R V Malcherek & Steel (1981) Switching off life support machine does not break causal link.

c) Thin skull rule

R V Blaue (1975)

Ms Benjamin 2012_2013 2

Mens Rea

Direct Intention

Moloney (1985) : ‘true desire to bring about the consequences’

Indirect/oblique intention: Subjective test

Inferred if the result was virtually certain to occur and the defendant continued with plan/actions.

Moloney (1985): Was death or serious injury a natural consequence of the defendant’s actions?

Hancock & Shankland (1986): The more probable the result, the more likely the defendant foresaw it and therefore the more likely that it was intended.

R V Woollin (1998): Consequence must be a virtually certain result of the defendant’s actions and the defendant must appreciate this.

Recklessness: Subjective Test

R V Cunningham: Did the defendant foresee the chance or possibility of the result occurring?

Transferred Malice

R V Latimer (1886)

The Mens rea of the offence towards a different person can be transferred to the victim of the actus reus provided it is from the same offence.

R V Pembilton (1874)

Mens rea of a different crime will not be transferred eg. Throw stone to injure people but cause criminal damage to building

Contemporaneity

Was there a continuing act? Fagan V MPC (1969)

Is it a single transaction- all part of the same series of events for the dame ultimate purpose/goal Thabo Meli (1954) Murder

MR: Intention to Kill or Cause GBH

If D realises that death or GBH would be a virtually certain result of his/her conduct intention may be satisfied. (Nedrick (1986)- Rule of evidence rather than law (Matthews and Alleyne (2003).

Evaluation

A new Homicide Act for England and Wales? July 2005

Identified the following:

Lack of Cohesion due to murder developing as a common law offence which has led to uncertainty and ambiguities which have had to wait for a case to be sent to a higher appellate court to change/clairify the law. For example the determination of what constitutes intention took 23 years to definitively sort out! Hyam V Dpp, Moloney (1985), Hancock & Shankland (1986), Nedrick (1986), Woollin (1998).

Intention Not right that D can be found guilty of murder when they did not foresee death could be a consequence even if they though GBH may occur. Particularly since it is not particularly clear to a lay person what GBH actually means!

Unfair sentencing: Judges should be afforded more discretion when sentencing rather than the mandatory life sentence to enable judges to differentiate between cold blooded murder and euthanasia for example.

Suggested murder reforms:

A New Homicide Act covering murder and both types of manslaughter.

1st degree- intention to kill, mandatory life sentence

2nd Degree- intended to cause serious harm, recklessness, partial defence applicable, discretionary life sentence. Voluntary Manslaughter

- AR and MR present but Partial defence is likely to be pleaded.

- NB/ D will still be charged with Murder.

Diminished Responsibility Homicide Act 1957 s.2

Abnormality of the Mind (R V Byrne 1960).

Loss of Control: Coroners and Justice Act 2009

There must be evidence of a loss of self control (subjective)

Must be a qualifying trigger:

• Fear of serious Violence

• Things said or done of ‘grave character’

Justifiable sense of wrongdoing

Person of same age/sex would behave in a similar way.

Remember sexual infidelity is excluded as a trigger.

Involuntary Manslaughter

Unlawful Act Manslaughter

Must be unlawful criminal act.

Must be a dangerous act: Church (1967)- would a reasonable person would see a risk of some harm?

Must be an act not an omission R V Lowe (1973)

Must have Mens rea for the unlawful and dangerous act R V Lamb (1967), R V Mitchell (1983)

Gross Negligence Manslaughter (Adomako, 1995)

Was there a duty of care? (R V Wacker, 2002)

Was there a breach that caused death? ( R V Becker, 2000)

Was there a risk of death? (R V Singh, 1999)

Mens Rea is Gross Negligence which is a question of fact for the jury to decide (Misra & Srivastava, 2004) Non-Fatal Offences

Assault:

Common Law offence (R V Venna, 1976: ‘the intentional or reckless causing of an apprehension of immediate unlawful personal violence’)

Actus reus: Any act that makes victim fear unlawful force may be applied.

Words can amount to an assault (R V Wilson, 1955)

Silent phone call can amount to assault (R V Ireland, 1997)

Victim must fear immediate threat of harm (Tuberville V Savage , 1669)

Mens Rea: Intention or Subjective recklessness

Battery:

Actus Reus: Application of unlawful force on another, a mere touch can be sufficient.

Fagan V MPC. 1969

Haystead V Dpp (2000): Indirect application of force.

Omission may amount to battery: (Santana- Bermudez, 2003)

Mens Rea: Intention or Subjective recklessness

Common assault: Assault and battery occur at same time to cause minor bruising, grazing, small cuts, swelling.

ABH (Offences Against the Person Act 1861 s.47)

Minor fractures eg. broken nose, severe bruising, loss of consciousness, small cuts requiring stiches, psychiatric injury.

Actus Reus: Assault or Battery causing ABH.

‘any hurt or injury calculated to interfere with the health or comfort of the victim’ (R V Miller,1954)

ABH can include psychiatric injury and nervous shock if it is an identifiable clinical condition but not fear, distress or panic.

Mens Rea: of either assault or batter (Intention or subjective recklessness) R V Roberts (1978)

Grevious Bodily Harm s.20 OAPA’1861

Serious injuries, broken bones, dislocated joints and injury causing permanent disability or disfigurement.

Actus Reus: Unlawfully and maliciously wounding or inflicting GBH (DPP V Smith)

Inflict can mean cause> R V Martin, 1881

Wound > Break in the skin so there is normally bleeding > Eisenhower, 1984

Mens Rea: Intention or Subjective recklessness in causing some physical damage (R V Grimshaw,1984)

Grevious Bodily Harm s.18 OAPA’1861

Actus Reus: Same as section 20

Mens Rea: Intention to cause GBH or subjective recklessness

Evaluation

- Inconsistent sentencing

- Old fashioned

- Assault and battery are still common law offences

Reforms

Clause 1: Intentional Serious injury (Life imprisonment)- may be committed by omission

Clause 2: Reckless serious injury (7 years)

Clause 3: Intentional or reckless injury (5 Years)

Clause 4: Assault (6 Months) Defences: Consent

General rule that no liability is incurred if a person inflicts minor harm with the consent of the victim.

Consent may be available to non-fatal, manslaughter and sexual offences, it is not available for murder. Pretty V UK (2002)

Once defence is raised prosecution may to prove that victim did not consent.

Consent must be valid

V must understand nature of act and what they are consenting to, children are not able to give valid consent.

Burrell V Harmer (1967)- Tattoist charged with ABH after tattooing 12 & 13 year old> consent invalid as they had not understood the nature of the act- that pain was involved!

Consent must be informed

R V Dica (2004): V consented to unprotected sex but not the transmission of HIV

Consent by fraud

Will invalidate if V is deceived about D’s identity or nature/quality of the act.

R V Tabassum (2000) D pretended he had medical qualifications and carried out a medical examination of 3 women’s breasts. Convicted for indecent assault.

Limitations

Victim may consent to assault (including common assault) and battery (Collins and Wilcock, 1984)

Victim cannot consent to ABH or GBH unless:

- Surgery

- Tatooing/Piercing

o Extended to branding also (Wilson, 1996)

- Sports

o R V Billinghurst, 1978: Consent is only for injuries inflicted during the course of the game which could be reasonably be expected to occur in the game.

o R V Barnes,2004 Consent to injury occurred within the rules of the game as long as it is a legitimate sport

- Horseplay

o R V Jones, 1986: Victim thrown into air by classmates- sustained broken arm and ruptured spleen.

o R V Aitken,1992: Suffered burns after RAF initiation ceremony.

- Sexual Acts

o R V Brown, 1993: Activities not conducive to welfare of society, not an exception to general rule that V cannot consent to injury beyond Common Assault.

o R V Wilson, 1996: Branding no more serious than tattooing and therefore an exception to general rule.

o R V Slingsby, 1995: Consensual undertaking of sexual activities during which defendants ring caused internal injuries of which V later died due to Septicaemia.

Evaluation

Irrational distinctions: Compare Brown & Wilson

The law should not determine limits of personal autonomy

Euthanasia

Reform

Law Commission 1995 Consent in Criminal Law: Only serious disabling injury should not be allowed. Defences: Self-Defence

Prosecution have to prove that D did not act in self defence or that the force used was unreasonable.

Private Defence (Common Law)

Defence of Property (Criminal Damage Act 1971)

Prevention of Crime (Criminal Law Act 1967)

Force must be necessary

Can be pre-emptive: R V Beckford, 1998

Force must be reasonable

For the jury to determine in relation to the facts of the case taking into account, the threat of harm, urgency of situation and options available to D. R V Martin (2002)

Excessive Force

R V Clegg, 1995

Mistake

If D makes an honest mistake and thinks Self- defence is necessary they will be judged on the facts as they believed them to be even if they may be unreasonable. R V Williams (Gladstone), 1984

However if mistake is made due to voluntary intoxication there will not be a defence R v O’Grady,1987

Evaluation

All or nothing effect: If D uses too much force renders defence inoperable

Reform

If excessive force used enable Self-defence to be a partial defence reducing conviction to manslaughter Defences: Insanity

Defendant must prove that he/she was suffering from insanity on balance of probabilities.

Defect of reason, caused by a disease of the mind, that he or she either did not know the nature and quality of the act or did not know that what he/she was doing was legally wrong (M’Naughten).

Defect of reason

R V Clarke,1972: a defendant who has reasoning powers but failed to use them cannot rely on defence.

Disease of Mind

R V Kemp, 1957: May be a physical disease rather than a mental condition- Arteriosclerosis

R V Sullivan, 1984: Epilepsy constitutes a disease of the mind

R V Hennessy, 1989: Hyperglycaemia: Lack of insulin

R V Burgess,1991: Sleepwalking

Did not know the nature and quality of the act was wrong

R V Windle, 1952: Admission after act of possible legal consequences would negate this defence.

Effect

Not guilty by reason of insanity. If charged with murder- indefinite hospital stay Criminal Procedure Act 1991, if another crime: Supervision order, hospital order, absolute discharge.

Evaluation

Burden of proof lies with defendant

Use of legal rather than medical definition

Rules are too broad eg. Including sleepwalkers

Rules are too narrow: eliminating the defence for those who are medically insane if they know the nature and quality of their act.

Reform

Place burden of proof on prosecution

Create a completely new defence not based on M’Naughten rules. Defences: Automatism

‘An act done by the muscles without any control by the mind’ Bratty V AG NI ,1963

Prosecution need to disprove once raised by defendant with medical evidence.

Total loss of voluntary control

Broome V Perkins, 1987: D had control of vehicle to brake and steer therefor not a total loss of voluntary control

AG Ref (No2), 1992: D had partial control of the lorry therefore ‘driving without awareness’ not evidence of loss of voluntary control

Caused by External Factor

- Blow to head, bee sting, anaesthetic, insulin, reflex action, hypnotism, Shock.

o R V Quick, 1973: Diabetes

o R V T,1990: Post traumatic stress disorder

Self-induced automatism

- If due to drink/drugs no defence, subject to intoxication rules.

o R V Lipman , 1970: D and V took LSD and fell asleep. D had hallucination about being attacked by snakes. D woke to find V strangled with bed sheets stuffed down her throat. D not able to rely on automatism.

- Self-induced automatism may be a defence to specific intent crimes if not caused by drink/drugs.

o R V Bailey, 1983

Evaluation

Leads to irrational and unfair results Eg. Quick and Hennesey

Reform:

Law Commissions Criminal Code: Should be extended to cover all cases that can be controlled by drugs, drinking or eating eg. Epilepsy, Diabetes, Sleepwalking

Defences: Intoxication

Defendant must prove evidence of intoxication then the prosecution must prove that despite the intoxication the defendant still formed the mens rea of the offence.

D is so intoxicated that they are incapable of forming the mens rea of the offence of which they are charged.

Voluntary Intoxication

If D is incapable of forming Mens Rea will have defence to specific but not basic intent crimes.

- DPP V Majewski,1977

Involuntary Intoxication

- Spiking, Prescription drugs, unexpected reaction to soporific drugs (sleeping pills eg. Valium)

o R V Hardie, 1984: D will have defence to both specific and basic intent crimes so long as mens rea for offence was not formed.

Specific Intent Crimes: Mens Rea is intention only

- Murder, S18 OAPA’1861, theft, robbery, burglary

Basic Intent Crimes: Mens Rea can include recklessness.

- Involuntary Manslaughter

- S.20 OAPA’1861

- S.47 OAPA’1861

- Assault

- Battery

Evaluation

Distinction between basic and specific intent crimes

Classification not consistently applied- jury should be able to decide in relation to the facts of each individual case.

Since D could not form mens rea they should not be criminally liable.

Inconsistency

Not all specific intent crimes have a basic counterpart

Reform

Ensure all specific intent crimes have corresponding basic intent offence

Have offence of dangerous intoxication- recommended by the Butler Committee

Should be a complete defence to any crime, due to the absence of any mens rea.

Ms Benjamin 2012_2013