<p>1</p><p>Unit 3- In a nutshell Establishing a Duty of care</p><p>Remember to prove liability if there is an omission to act or gross negligent manslaughter you must prove a duty of care.</p><p>Omissions; was there a Duty to act?</p><p>Duty to Act</p><p>Parents/Child: Gibbons V Proctor (1918)</p><p>Duty due to contract R V Pittwood (1902)</p><p>Duty due to public office</p><p>R V Dytham (1979)</p><p>Voluntary assumption of duty</p><p>R V Stone & Dobinson (1977)</p><p>Duty arising due to dangerous conduct</p><p>R V Miller Causation</p><p>Factual (But for test)- R V White</p><p>Legal (Significant operative cause)</p><p> a) Only unreasonable actions from defendant will break chain of causation.</p><p> b) Actions of 3rd parties will only break chain if they are not reasonably foreseeable</p><p>R V Pagett (1983)</p><p>R V Jordan (1956)</p><p>R V smith (1959)</p><p>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.</p><p>R V Malcherek & Steel (1981) Switching off life support machine does not break causal link.</p><p> c) Thin skull rule</p><p>R V Blaue (1975) </p><p>Ms Benjamin 2012_2013 2</p><p>Mens Rea</p><p>Direct Intention </p><p>Moloney (1985) : ‘true desire to bring about the consequences’</p><p>Indirect/oblique intention: Subjective test</p><p>Inferred if the result was virtually certain to occur and the defendant continued with plan/actions.</p><p>Moloney (1985): Was death or serious injury a natural consequence of the defendant’s actions?</p><p>Hancock & Shankland (1986): The more probable the result, the more likely the defendant foresaw it and therefore the more likely that it was intended.</p><p>R V Woollin (1998): Consequence must be a virtually certain result of the defendant’s actions and the defendant must appreciate this.</p><p>Recklessness: Subjective Test</p><p>R V Cunningham: Did the defendant foresee the chance or possibility of the result occurring?</p><p>Transferred Malice</p><p>R V Latimer (1886)</p><p>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. </p><p>R V Pembilton (1874)</p><p>Mens rea of a different crime will not be transferred eg. Throw stone to injure people but cause criminal damage to building</p><p>Contemporaneity</p><p>Was there a continuing act? Fagan V MPC (1969)</p><p>Is it a single transaction- all part of the same series of events for the dame ultimate purpose/goal Thabo Meli (1954) Murder</p><p>MR: Intention to Kill or Cause GBH</p><p>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).</p><p>Evaluation</p><p>A new Homicide Act for England and Wales? July 2005</p><p>Ms Benjamin 2012_2013 3</p><p>Identified the following:</p><p>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).</p><p>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!</p><p>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.</p><p>Suggested murder reforms:</p><p>A New Homicide Act covering murder and both types of manslaughter.</p><p>1st degree- intention to kill, mandatory life sentence</p><p>2nd Degree- intended to cause serious harm, recklessness, partial defence applicable, discretionary life sentence. Voluntary Manslaughter</p><p>- AR and MR present but Partial defence is likely to be pleaded.</p><p>- NB/ D will still be charged with Murder.</p><p>Diminished Responsibility Homicide Act 1957 s.2</p><p>Abnormality of the Mind (R V Byrne 1960).</p><p>Loss of Control: Coroners and Justice Act 2009</p><p>There must be evidence of a loss of self control (subjective)</p><p>Must be a qualifying trigger:</p><p>• Fear of serious Violence</p><p>• Things said or done of ‘grave character’</p><p>Justifiable sense of wrongdoing</p><p>Person of same age/sex would behave in a similar way.</p><p>Remember sexual infidelity is excluded as a trigger.</p><p>Ms Benjamin 2012_2013 4</p><p>Involuntary Manslaughter </p><p>Unlawful Act Manslaughter</p><p>Must be unlawful criminal act.</p><p>Must be a dangerous act: Church (1967)- would a reasonable person would see a risk of some harm?</p><p>Must be an act not an omission R V Lowe (1973)</p><p>Must have Mens rea for the unlawful and dangerous act R V Lamb (1967), R V Mitchell (1983)</p><p>Gross Negligence Manslaughter (Adomako, 1995)</p><p>Was there a duty of care? (R V Wacker, 2002)</p><p>Was there a breach that caused death? ( R V Becker, 2000)</p><p>Was there a risk of death? (R V Singh, 1999)</p><p>Mens Rea is Gross Negligence which is a question of fact for the jury to decide (Misra & Srivastava, 2004) Non-Fatal Offences</p><p>Assault: </p><p>Common Law offence (R V Venna, 1976: ‘the intentional or reckless causing of an apprehension of immediate unlawful personal violence’)</p><p>Actus reus: Any act that makes victim fear unlawful force may be applied.</p><p>Words can amount to an assault (R V Wilson, 1955)</p><p>Silent phone call can amount to assault (R V Ireland, 1997)</p><p>Victim must fear immediate threat of harm (Tuberville V Savage , 1669)</p><p>Mens Rea: Intention or Subjective recklessness</p><p>Battery: </p><p>Actus Reus: Application of unlawful force on another, a mere touch can be sufficient.</p><p>Fagan V MPC. 1969</p><p>Haystead V Dpp (2000): Indirect application of force.</p><p>Ms Benjamin 2012_2013 5</p><p>Omission may amount to battery: (Santana- Bermudez, 2003)</p><p>Mens Rea: Intention or Subjective recklessness</p><p>Common assault: Assault and battery occur at same time to cause minor bruising, grazing, small cuts, swelling.</p><p>ABH (Offences Against the Person Act 1861 s.47)</p><p>Minor fractures eg. broken nose, severe bruising, loss of consciousness, small cuts requiring stiches, psychiatric injury.</p><p>Actus Reus: Assault or Battery causing ABH.</p><p>‘any hurt or injury calculated to interfere with the health or comfort of the victim’ (R V Miller,1954)</p><p>ABH can include psychiatric injury and nervous shock if it is an identifiable clinical condition but not fear, distress or panic.</p><p>Mens Rea: of either assault or batter (Intention or subjective recklessness) R V Roberts (1978)</p><p>Grevious Bodily Harm s.20 OAPA’1861</p><p>Serious injuries, broken bones, dislocated joints and injury causing permanent disability or disfigurement.</p><p>Actus Reus: Unlawfully and maliciously wounding or inflicting GBH (DPP V Smith)</p><p>Inflict can mean cause> R V Martin, 1881</p><p>Wound > Break in the skin so there is normally bleeding > Eisenhower, 1984</p><p>Mens Rea: Intention or Subjective recklessness in causing some physical damage (R V Grimshaw,1984)</p><p>Grevious Bodily Harm s.18 OAPA’1861</p><p>Actus Reus: Same as section 20</p><p>Mens Rea: Intention to cause GBH or subjective recklessness</p><p>Evaluation</p><p>- Inconsistent sentencing</p><p>- Old fashioned</p><p>- Assault and battery are still common law offences</p><p>Ms Benjamin 2012_2013 6</p><p>Reforms</p><p>Clause 1: Intentional Serious injury (Life imprisonment)- may be committed by omission</p><p>Clause 2: Reckless serious injury (7 years) </p><p>Clause 3: Intentional or reckless injury (5 Years) </p><p>Clause 4: Assault (6 Months) Defences: Consent</p><p>General rule that no liability is incurred if a person inflicts minor harm with the consent of the victim.</p><p>Consent may be available to non-fatal, manslaughter and sexual offences, it is not available for murder. Pretty V UK (2002)</p><p>Once defence is raised prosecution may to prove that victim did not consent.</p><p>Consent must be valid</p><p>V must understand nature of act and what they are consenting to, children are not able to give valid consent. </p><p>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!</p><p>Consent must be informed</p><p>R V Dica (2004): V consented to unprotected sex but not the transmission of HIV</p><p>Consent by fraud</p><p>Will invalidate if V is deceived about D’s identity or nature/quality of the act.</p><p>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.</p><p>Limitations</p><p>Victim may consent to assault (including common assault) and battery (Collins and Wilcock, 1984)</p><p>Victim cannot consent to ABH or GBH unless:</p><p>- Surgery</p><p>-</p><p>- Tatooing/Piercing</p><p> o Extended to branding also (Wilson, 1996)</p><p>- Sports</p><p>Ms Benjamin 2012_2013 7</p><p> 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.</p><p> o R V Barnes,2004 Consent to injury occurred within the rules of the game as long as it is a legitimate sport</p><p>- Horseplay</p><p> o R V Jones, 1986: Victim thrown into air by classmates- sustained broken arm and ruptured spleen.</p><p> o R V Aitken,1992: Suffered burns after RAF initiation ceremony.</p><p>- Sexual Acts</p><p> 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.</p><p> o R V Wilson, 1996: Branding no more serious than tattooing and therefore an exception to general rule.</p><p> 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.</p><p>Evaluation</p><p>Irrational distinctions: Compare Brown & Wilson</p><p>The law should not determine limits of personal autonomy</p><p>Euthanasia</p><p>Reform</p><p>Law Commission 1995 Consent in Criminal Law: Only serious disabling injury should not be allowed. Defences: Self-Defence</p><p>Prosecution have to prove that D did not act in self defence or that the force used was unreasonable.</p><p>Private Defence (Common Law)</p><p>Defence of Property (Criminal Damage Act 1971)</p><p>Prevention of Crime (Criminal Law Act 1967)</p><p>Force must be necessary</p><p>Can be pre-emptive: R V Beckford, 1998</p><p>Ms Benjamin 2012_2013 8</p><p>Force must be reasonable</p><p>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)</p><p>Excessive Force</p><p>R V Clegg, 1995</p><p>Mistake</p><p>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</p><p>However if mistake is made due to voluntary intoxication there will not be a defence R v O’Grady,1987</p><p>Evaluation</p><p>All or nothing effect: If D uses too much force renders defence inoperable</p><p>Reform</p><p>If excessive force used enable Self-defence to be a partial defence reducing conviction to manslaughter Defences: Insanity</p><p>Defendant must prove that he/she was suffering from insanity on balance of probabilities.</p><p>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).</p><p>Defect of reason</p><p>R V Clarke,1972: a defendant who has reasoning powers but failed to use them cannot rely on defence.</p><p>Disease of Mind</p><p>R V Kemp, 1957: May be a physical disease rather than a mental condition- Arteriosclerosis</p><p>R V Sullivan, 1984: Epilepsy constitutes a disease of the mind</p><p>R V Hennessy, 1989: Hyperglycaemia: Lack of insulin</p><p>R V Burgess,1991: Sleepwalking</p><p>Did not know the nature and quality of the act was wrong</p><p>R V Windle, 1952: Admission after act of possible legal consequences would negate this defence.</p><p>Ms Benjamin 2012_2013 9</p><p>Effect</p><p>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.</p><p>Evaluation</p><p>Burden of proof lies with defendant</p><p>Use of legal rather than medical definition</p><p>Rules are too broad eg. Including sleepwalkers</p><p>Rules are too narrow: eliminating the defence for those who are medically insane if they know the nature and quality of their act.</p><p>Reform</p><p>Place burden of proof on prosecution</p><p>Create a completely new defence not based on M’Naughten rules. Defences: Automatism</p><p>‘An act done by the muscles without any control by the mind’ Bratty V AG NI ,1963</p><p>Prosecution need to disprove once raised by defendant with medical evidence.</p><p>Total loss of voluntary control</p><p>Broome V Perkins, 1987: D had control of vehicle to brake and steer therefor not a total loss of voluntary control</p><p>AG Ref (No2), 1992: D had partial control of the lorry therefore ‘driving without awareness’ not evidence of loss of voluntary control</p><p>Caused by External Factor</p><p>- Blow to head, bee sting, anaesthetic, insulin, reflex action, hypnotism, Shock.</p><p> o R V Quick, 1973: Diabetes</p><p> o R V T,1990: Post traumatic stress disorder</p><p>Self-induced automatism</p><p>- If due to drink/drugs no defence, subject to intoxication rules.</p><p> 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.</p><p>Ms Benjamin 2012_2013 10</p><p>- Self-induced automatism may be a defence to specific intent crimes if not caused by drink/drugs. </p><p> o R V Bailey, 1983</p><p>Evaluation</p><p>Leads to irrational and unfair results Eg. Quick and Hennesey</p><p>Reform:</p><p>Law Commissions Criminal Code: Should be extended to cover all cases that can be controlled by drugs, drinking or eating eg. Epilepsy, Diabetes, Sleepwalking</p><p>Defences: Intoxication</p><p>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.</p><p>D is so intoxicated that they are incapable of forming the mens rea of the offence of which they are charged.</p><p>Voluntary Intoxication</p><p>If D is incapable of forming Mens Rea will have defence to specific but not basic intent crimes.</p><p>- DPP V Majewski,1977</p><p>Involuntary Intoxication</p><p>- Spiking, Prescription drugs, unexpected reaction to soporific drugs (sleeping pills eg. Valium)</p><p> 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.</p><p>Specific Intent Crimes: Mens Rea is intention only</p><p>- Murder, S18 OAPA’1861, theft, robbery, burglary</p><p>Basic Intent Crimes: Mens Rea can include recklessness.</p><p>- Involuntary Manslaughter</p><p>- S.20 OAPA’1861</p><p>- S.47 OAPA’1861</p><p>- Assault</p><p>- Battery</p><p>Ms Benjamin 2012_2013 11</p><p>Evaluation</p><p>Distinction between basic and specific intent crimes</p><p>Classification not consistently applied- jury should be able to decide in relation to the facts of each individual case.</p><p>Since D could not form mens rea they should not be criminally liable.</p><p>Inconsistency</p><p>Not all specific intent crimes have a basic counterpart</p><p>Reform</p><p>Ensure all specific intent crimes have corresponding basic intent offence</p><p>Have offence of dangerous intoxication- recommended by the Butler Committee</p><p>Should be a complete defence to any crime, due to the absence of any mens rea.</p><p>Ms Benjamin 2012_2013</p>