Crim Combined
What is the definition and the elements of murder?
'unlawfully killeth ... any reasonable creature in rerum natura under the [Queen's] peace' - Sir Edward Coke (a) D has voluntarily done (b) culpable act or omission (c) that caused V's death (d) that V was a reasonable creature (alive) (e) that V was under the Queen's peace
Why does Simester and Sullivan criticise Wallace (Causing Euthanasia: Case Comment)
(a) Because the issue of whether the doctor's actions was an FDI (even with the added qualification of an unfettered volition) was not put to the jury, which is extraordinary as factually the doctor killed V. (b) The comparison with Pagett is heavily unsatisfactory. (c) Moreover, the three branches of the direction seem to be inconsistent with previous authority. If (ii) (operating cause) was met, foreseeability (iii) is irrelevant, as evidenced by Dear. (iii) should have rather been an alternative had (ii) not been met. (c) They suggest that the questions should have been (a) What caused V's death (b) Was D responsible for T's intervention? (c) Only if T's act fell outside the FDI principle would we consider foreseeability
An informed, free and voluntary act (even if foreseeable) may breaks the chain of causation (case), and it normally does so (academic)
(a) Kennedy (No 2) HL 2007. Defendant provided heroin to victim and prepared syringe, was accused of unlawful manslaughter which causes death. HL stated that when a victim voluntarily and freely self-administered a drug, it is never appropriate to find the defendant guilty of manslaughter (b) Hart & Honore
How have other jurisdictions/academics dealt with the extension of the Miller principle in Evans, which also seems to go against Kennedy (No.2)
(a) The High Court or Australia rejected it in Burns, (b) It has been criticised by Simester and Sullivan and Ashworth (Manslaughter by Omission)
Facts of Gammon v AG of Hong Kong What does it establish?
A company deviated from an approved plan, causing the destruction of a building It establishes that a presumption of mens rea is at its strongest when when the offence is truly criminal
In Wallace, regardless of V's actions, in what sense were the doctor's actions not voluntary?
A comparison was made to Paigett. While it is not the doctor's duty, the doctors were lawfully carrying out their patient's wishes.
A homeless person had gone to squat in an unoccupied house, was smoking in bed when he fell asleep and woke up to find that the mattress had started to burn. He walked away, leaving it unattended. The fire spread, causing serious damage to the house.
Miller - he was convicted of UAM as there is a duty 'to take measures that lie within one's power to counteract a danger that one has oneself created'
Mechanical causation: "The metaphorical picture is of the ripples emanating from a stone dropped into a quiet pond: gradually they diminish to nothing the further the ripples travel from their source. This attribute of legal causation presupposes that the relation is scalar, because only a more-or-less sort of relation can gradually peter out."
Moore
In causation, does one need to foresee the specific act which occurs?
No, as long as they foresee an act of that general nature - Maybin (SC of Canada)
What must D intend in murder?
Cummingham: Death or Grievous Bodily Harm (Vickers) - grievous means very serious (DPP v Smith)
Why is GBH sufficient for a conviction of murder?
Cunningham - the outcome of intentionally inflicting serious harm can be so unpredictable that anyone prepared to act so wickedly has little cause for complaint if, where death results, he is convicted and punished as severely as one who intends to kill - Lord Davies says had doubts about fairness of this but thought the rule was too old to change
In the context of novus actus interrvenus, what does 'voluntary' mean?
Free, unfettered volition (Wallace)
We must distinguish between conduct which sets the stage for an occurrence and conduct which is viewed as instrumental in bringing about the occurence
Galoo v Bright
A, a man who had dependent children, was left by his wife and moved in with B, who proceeded to neglect/starve one of the children - both were convicted of murder.
Gibbons v Proctor - They were guilty of murder if they withheld food with intent to cause the child grievous bodily harm, as a result of which she died.
The test for legal causation is significant contribution, eg not de minimis, not substantial or major cause of death
Hennigan - H while driving, hit the side of L's car. L's two passengers were killed.
Should a spouse be held culpable for omitting to call for help when this is their spouse's wish?
Hood and Bonnyman say yes, Smith says no. Smith is preferred due to its respect for personal autonomy.
When is it necessary to invoke the Miller principle?
In the case of (a) a result crime (b) requiring fault (c) where the act causing the result is done without the relevant fault at the time. (SH&O)
What is the mens rea for murder?
In the past it was 'malice aforethought', today it requires intention.
W (D) intentionally and maliciously threw acid onto the face of V, with the intent to cause GBH. V sustained dreadful injuries as a result, being disfigured, paralysed and in constant pain. He was in therapy, paralysed and would lose his voice. He then successfully applied for euthanasia in Belgium. Had the euthanasia broken the chain of causation?
R v Wallace (a) The intervening acts of V and the doctors, were not random extraneous events, but were connected with the fault element of D's conduct (b) The injuries were intended. V's response was neither intended nor voluntary. It was a direct response to D's injuries. It did not set the scene, it was instrumental to bringing it about. (c) The test is whether the act is an operating substantial cause of death. Different causes need not be weighed against each other. (d) The question is not analysed by philosophical analysis, but by common sense.
In what 3 categories can crimes be divided according to the requirements of their actus reus?
Result crimes (murder) - a result needs to occur, come with rules of causation Conduct crimes (dangerous driving, rape) - it is about doing the act, not causing a result State of affair crimes (being the owner of a dangerous dog) - criticised as they can often lack both the AR amd MR (Larsonneur - being found as an alien in the UK even if put there against their will)
In strict liability crimes, should prosecution bring evidence of intent?
Sandhu says no, but it is not followed practically
How could the CA's decision in Hughes be seen as problematic?
Say V rents a car on holiday with his family, and is waiting at a red light. Due to a mistake on the part of those who rented the car, V is uninsured. D, in a suicidal urge drives into V's car, killing V's wife and children. V would be liable for their deaths.
Hughes represents a further step in "moralisation" of causation in law
Simester and Sullivan - Causation in (Criminal) Law
Why is mechanical causation a part of criminal law?
Simester and Sullivan suggest that it is more culpable actually to cause some harm than to risk or attempt it. At its core, it is also used to ascribe responsibility, and identify defendants. Direct (mechanical) causation is non-normative. It is simply factual. Ultimately, it is an issue of human liberty and freedom, by restricting the net that can be cast of people liable for an event.
In this case S, J and V went and took drugs together, which S had purchased. J did not know V, but when he saw V being unwell, he administered a saline solution. S stayed with V the whole night, who then died.
Sinclair (a) J administering a saline solution was not enough to create a duty of care (b) S had a duty of care, arising out of 1) S being a long-standing friend of V 2) S had purchased the drugs 3) S stayed by V's side It is unclear if any of these alone would have sufficed
Is there a duty of care regarding manslaughter and omissions between spouses?
Some precedent suggests so, from marriage vows (Bonnyman), and Sullivan also suggests that a mutual obligation arises.
A was an elderly deaf, nearly blind man of low intelligence, and lived with the younger B - A had a sister C who suffered from anorexia. C moved in with them, would not come out of her room, refused to eat, and ultimately died in her room. Both A&B did not heed advice to go see a doctor, and did not mention C's condition when a social worker visited A's son,
Stone & Dobinson - (a) A and B were convicted of manslaughter. A as a relative, B undertook a duty of care by washing and feeding C (b) The case suggests that the courts might adopt a strict line when faced with claims that the accused had done what he believed to be sufficient to fulfil his duty. A reckless disregard of the duty is required
Defendants planned to kill victim and attacked him, after they thought they had succeeded they pushed him off the cliff.
Thabo Mell v R While normally we need coincidence between actus and mens rea, this is considered a 'course of events'
What does Ashworth recommend to deal with omissions?
That the Law Commission does a comprehensive overview of the subject, which it has avoided thus far.
What would a physicalist like Moore say about novus actus intervenus, the FDI principle and foreseeability?
That they are not about causation, rather they are relevant to liability. This is an issue more of terminology rather than issue, however, it can have consequences.
In cases of careless driving which set off a chain of reaction leading to the death, what is the test to be applied?
The CA rejected the FDI test in this case, and rather said that as long as the contribution is not trivial, the test is that of reasonable foreseeability (while qualifying that this might not be appropriate for a jury, sensibly anticipated a fatal collision) (Girdler)
Who does the burden of proof lie on? What is the standard?
The prosecution (Woolmington v DPP). Proof beyond reasonable doubt
What is a downside of strict liability?
The standard can be impossible to reach, and thus does not change behaviour. For example, in Pharmaceutical Society of GB v Storkwain there was a forgery that objectively could not have been detected by the pharmacist
In Wallace, how did the court resolve the conflict between the voluntariness required for euthanasia and the alleged lack of voluntariness in V's act?
The voluntariness required for euthanasia does not necessarily satisfy the legal voluntariness required to break the chain of causation.
What happens if a statutory crime is silent on whether mens rea is required?
There is a presumption that it is, this presumption takes priority over giving words their natural meaning - Sweet v Parsley
What are reverse onus clauses? What issue do they have?
They are statutory offences that reverse the burden of proof. These will more often than not contravene article 6(2) of the HRA (Lambert)
How do Simester and Sullivan propose to change causation analysis in their article Causation in (Criminal) Law
They discuss three threads of causation (a) Direct causation (physical chain reactions)(mechanical causation) They suggest that in cases like Smith, physical causation is still present, and so no other analysis is needed (cf Jordan). (b) Indirect causation (two mechanical chains interlap) - eg putting someone in harm's way- bridging the two chains is a normative task. With this analysis, novus actus do not 'break a chain', they simply inform us when we can or cannot span the gap between two separate chains. Here foreseeability becomes relevant. In cases of FDI, the principle of person control over criminal liability is relevant - no-one should have the power to deliberately render another person guilty of a crime. (c) Omissions and non-interventions: As there are no mechanical chains, this relies on a but-for counterfactual. However, a simple but-for does not suffice, and neither does an acceleration analysis (camel water sandstorm). A better, yet more complicated way to approach it is that culpable omissions fail to break a mechanical chain of causation. As omissions are failures to break a chain they cannot constitute novus actus intervenus.
How can the following justification in Wallace be criticised? 'Additionally, it wold be odd if in identical circumstances, where one V was paralysed and the other was not D could escape murder charges if the first V brings upon their death through euthanasia.'
This justification is extremely hypocritical given the SC's repeated refusal to legalise assisted suicide in the UK (see Nicklinson)
D stabbed V. 8 days later, V was administered with antibiotics which doctors knew he was allergic to, and died.
This treatment was not 'normal' and breaks the chain of causation - Jordan (CA 1956)
What direction to the jury did the CA decide had to be given in Wallace
Three questions were to be posed: (a) Would the euthanasia had occurred but-for the acid attack? (b) Was the acid attack a significant operating cause of death (c) If yes, was euthanasia a reasonably foreseeable outcome at the time of the acid attack?
Where do common law principles of causation apply?
To all result crimes
Is a baby that is born alive and dies from pre-natal injuries covered by the definition of murder?
Yes - A-G's Reference (No 3 of 1994) the defendant stabbed his pregnant girlfriend, who went into labour early, the baby was born alive but then died in circumstances that could be linked back to the stabbing (D doesn't need to be alive during the act)
In a strict liability offence, can not braking because brakes were broken constitute a defence?
Yes - Burns v BIdder
Does Thabo apply in manslaughter?
Yes - Church
Can the verbs 'obstruct', 'falsify' and 'deceive' be satisfied by an omission?
Yes - Firth
Does a free, informed, voluntary and non-foreseeable act break the chain of causation?
Yes - Pagett - A uses 16 year old girlfriend as shield
Is killing a severely deformed new-born murder?
Yes - Re A (Children)(Conjoined Twins)
Is there a general duty to ensure the welfare of one's child? At what age does it stop?
Yes - Russell. From 16-18 it is the bare duty to avoid life-threatening situations (Evans) unless there are special circumstances (Ashworth)
D, a gatekeeper went on a break leaving the gate open, and there was a fatal accident. D's contractual duty to employer was held to establish a duty of care to the users of the crossing.
Pitwood
A driver was charged with aggravated vehicle taking (TA 1968 s.12A) and causing the death of another while uninsured (RTA 1988 s3ZB)
R v Taylor (Jack) SC. He was not criminally liable cause his driving was faultless. They both required a direct causal connection between the driving and the injury
A company installed a diesel tank where if a tap was turned on, oil would spill in the river, and such a tap was turned on by a 3rd party. Despite act that could be said broke the cause of causation it was a strict liability crime which means D should actively guard against it. Foreseeability should not be the test, rather for a supervening cause it should be an act of unnatural, extraordinary or unusual character.
Empress Car Co v National Rivers Authority
D can be tried for murder wherever committed if he is a British subject, or if the murder was committed within England and Wales. 'Queen's peace' requirement references to the victim
Adebolajo
Patient died on operating table because doctor failed to notice that he couldn't breathe - can be brought on by omission
Adomako (is this a true omission?)
There is a point where doctors are legally allowed to withdraw treatment without this being murder
Airedale NHS Trust v Blond
The principles for when someone should be liable for manslaughter through omission are not clear, which seems to not comply with art.7 of the ECHR fundamental rule-of-law standards or principles of legality.
Ashworth: 'Manslaughter by Omission and the Rule of Law'
D supplied heroin to V, her half-sister (16 years old), which led to an overdose. While D thought she was responsible for V's care, they did not call an ambulance.
Evans - D was convicted on an extension of the Miller principle, that as she supplied the heroin she was under a duty to intervene if she had know, or it was reasonably for her to have known, that she had caused or contributed to a life-threatening situation.
The victim of a stab wound inflicted by the defendant when taken to hospital declined a blood transfusion, which would have saved her life, on religious grounds, she being a Jehovah's Witness.
Blaue - this does not break the chain of causation 'it does not lie in the mouth of an assailant to say that his victim's religious beliefs which inhibited him from accepting certain kinds of treatment were unreasonable'
Are Blaue and Roberts incompatible? How can we explain them
Blaue's reasoning is that a victim must be taken as we find them, and it is not in the 'assailant's mouth to say that V's choices are unreasonable'. However, in Roberts an escape method that is 'daft' would break the chain. These can be reconciled through the Silvester and Sullivan analysis on why omissions cannot break a chain of causation.
A baby born with some injuries due to his mother drinking was not entitled to compensation because the baby was not born when the administering happened (as administering is a conduct crime, not a result crime)
CP (A Child) v Criminal Injuries Compensation Authority
How does Simester and Sullivan respond to the SC in Hughes that liability will only arise where there is fault?
Causation should not be confused with fault. There is a middle ground between simply being 'a presence' on the road, and being at fault in your driving. For example, if someone swerves to avoid an accident and hits a 3rd person, they are not at fault, nor are they a mere presence. Under Hughes, they would not be an operative cause of the death. Sullivan suggests that this is wrong. However, they accept that in the specific circumstances, such an interpretation can lead to draconian results.
Negligent treatment will only break the chain of causation when it was so independent of his acts and in itself so potent in causing death that the jury regarded the contribution made by his acts as insignificant. This is extraordinary.
Cheshire
Facts of Cheshire
D shot V in the stomach and leg, seriously wounding him. Due to respiratory problems a tracheotomy tube was inserted. Two months later, when his original injuries were no longer life threatening, due to negligent treatment V choked to death. D was liable for V@#'s death. (a) Negligent treatment does not necessarily break the chain of causation
Facts and reasoning of Hughes
D was driving without insurance, but his driving was faultless. D crashed into V, and V died. The crash was clearly V's fault, who was under the influence of heroin and over-tired. D was purposefully uninsured. (a) Mandatory insurance is important, and a strict liability offence. (b) If there is truly faultless driving, there will be no conviction
A policeman tried to stop the defendant from driving off with stolen goods by jumping on to the bonnet of the car, who was knocked by another car and killed. What does it establish?
DPP v Smith (a) Grievous means very serious (b) Oblique intent sets an objective test (overruled in Nedrick) (c) Oblique intent is a rule of substantive law (overruled in Moloney)
Always to remember to apply the but-for test. It needs to be the culpable act which caused the result
Dalloway , a horse driver was not using his reins, and hit a child. However, if the jury found that even had he been using his reins the child would have died, he was not culpable
There is a statutory duty for a person over 16 to protect a member of the household who is either a child or a vulnerable person, if they are aware or ought to be aware that they are suffering or at risk of serious harm
Domestic Violence, Crime and Victims Act 2004 s5
Causing death can be more accurately described as 'accelerating death'
Dyson
Vulnerable adult paid D for caretaking services, V died after being neglected
Instan - D convicted of manslaughter
How can crimes be divided according to mens rea?
Intention Recklessness Other (knowledge, dishonesty, belief, wilfulness, suspicion) No mens rea (negligence or strict liability)
Does English law impose a general duty to act/intervene in situations? How can such a duty arise
It does not. Such a duty can arise (a) If statute imposes a duty or (b) by common law, which recognises various situations where a duty arises
Is deciding whether there is a duty of care a question for the jury or the judge?
It is for the judge to decide that there is sufficient evidence, and then for the jury (Evans)
How did Wallace distinguish Kennedy?
Kennedy is distinguished as it did not concern a response by a victim to extreme circumstances caused by D's unlawful act, which were persisting and which put V in the position to make a decision which he otherwise would have never made.
'There cannot be a break in the chain of causation if there is no chain to be broken' (in relation to Taylor and Kennedy)
Laird, "The Decline of Criminal Law Causation without Limits"
What is recklessness?
Law Commission (subjective approach) - 'deliberate taking of an unreasonable risk' Caldwell - taking a risk which would be obvious to the reasonable person, overruled in R v G, which returned to the subjective approach
In this case a decision not to prosecute was upheld where D left his heavily intoxicated friend, V, asleep in a car in the summer heat in Spain where he died. How can we distinguish this from Evans?
Lewin v CPS - Even though this can be seen to be similar to Evans, Ashworth argues that the court's conclusion emphasizes that an assumption of responsibility alone is not enough for manslaughter, without knowledge (or reasonable grounds for realizing) that the other person is in a life-threatening situation
What acts are involuntary?
Lord Denning: Acts done while unconscious, spasms, reflex actions and convulsions - Ross v HM Advocate
In the context of the Criminal Damages Act 1971, is spitting on a coat damage?
No - A Juvenile v R
Is there a duty of care regarding manslaughter and omissions from adults to their parents?
No - Ashworth Manslaughter by Omission and the Rule of Law
Does medical treatment gone wrong break the chain of causation?
No - Cheshire - even though negligent medical treatment was the immediate cause of death, that should not exclude the accused's responsibility unless the negligent treatment was so independent of his acts and in itself so potent in causing death that the jury regarded the contribution made by his acts as insignificant. This is extraordinary.
Does V aggravating an injury/committing suicide caused by D break the chain of causation?
No - Dear (it failed to deal with foreseeability - Walace qualifies this decision, following criticisms by JC Smith, by inserting the foreseeability requirement)
Is there constructive malice for murder?
No - Homicide Act 1957 s.1
Can there be a crime without the actus reus?
No - In Deller damaged a car he thought he did not possess, however, he did possess it, so no crime was commited
Where a driver causes death by driving, while uninsured, under the influence, or having taken the car without consent will they be liable of an offence under the Road Traffic Act 1988 if their driving is truly faultless?
No - In order to give effect to the expression "causes ... death ... by driving", an unlicensed, disqualified or uninsured driver charged with an offence under the Road Traffic Act 1988 s.3ZB had to be shown to have done something other than simply putting his vehicle on the road so that it was there to be struck. Some kind of fault in the manner of his driving was a necessary element of the offence. (R v Hughes confirmed in Taylor - dealt with aggravated vehicle taking)
Does an unborn baby, or a baby in the process of being born, fall under the definition of murder?
No - Poulton
Is V's contributory negligence relevant in questions of causation?
No - Swindall and Osborne - D ran over an old man, it was irrelevant whether he was deaf or drunk
Is there a duty in an affair?
No - The People and Beardsley (US case)
Are familial ties (other than parenthood) enough to give rise to a duty in manslaughter by omission?
No - there needs to be an assumption of responsibility (Nicholls - grandma infant)
Two boys, aged 11 and 12 years,entered the back yard of a shop. Lighting some newspapers they found in the yard, they left, with the papers still burning. The newspapers set fire to nearby rubbish bins standing against the shop wall, where it spread up the wall and on to the roof of the shop. Approximately £1m damage was caused. The children argued they expected the fire to burn itself out although they were aware of the risk of fire spreading.
R v G and Another Establishes that the test for recklessness is subjective, rejecting Caldwell and returning to the subjective standard
When a provision is ambiguous about whether mens rea is needed, the ambiguity will be resolved in favour of needing mens rea
R v Saik Facts: Appellants sent money overseas, which was used for terrorist purposes
It was alleged that the appellants had sent money overseas, when they had known, or had reasonable cause to suspect that it would be used for terrorism purposes, contravening s17 of the Terrorism Act 2000. Did the words 'had reasonable cause to suspect' mean that the defendant had to actually suspect (subjective test) or whether the information available to them was enough to give rise to an objective suspicion (objective test)
R v Saik The objective test was chosen. This is not strict liability as an inquiry into what knowledge the defendant has still needs to happen
How high is the evidential burden?
Only some evidence is required - Bratty v AG NI (The appellant murdered an 18 year old girl and raised the defence of automatism)
V was stabbed by D with a bayonet. His lung was pierced, an injury that went unrecognised by those who attended to him. He was dropped twice on the way to the medical station. There the medical officer failed to diagnose the seriousness of the situation and gave the wrong treatment, which very likely increased the risk of death.
R v Smith - Perhaps V would not have died but for the mistreatment. Be that as it may, D's conviction of murder was rightly affirmed. The original injury was still, as the court said, an "operating" cause of V's death
If V is injured while escaping, does this break the chain of causation?
No, if the reaction was within the ambit of what was expected (including whether in the agony of the moment a wrong call was made) - Williams. Was V's reaction daft? - Roberts
D, who was armed with a shotgun and cartridges, shot at police officers who were trying to arrest him for various offences. He had with him a 16-year-old girl who was pregnant by him and against her will used her body to shield him from any retaliation by the officers. He fired shots, and the officers returned his fire and the girl was killed. D was charged with her murder. What two things
Pagett - (a) it was held usually in homicide cases all the jury needed to be told was that the accuser's act need not be the sole of even main cause of death. Either the firing at the police or the using the girl as self-defence would have sufficed for a conviction. (b) Human intervention, where it consists in a foreseeable act instinctively done for the purposes of self-preservation, or in the execution of a legal duty, does not break the chain of causation. (c) A free, informed, voluntary and non-foreseeable act break the chain of causation
What is the basic principle behind causation? Is this enough?
The basic principle is the but-for test (White). This is not enough (Wallace [53).
What is the standard when the burden of proof is on D?
The civil standard (balance of probabilities) - Carr-Briant
In the context of the Criminal Damages Act 1971, is spraying mud on a police wall damage?
Yes, as it requires money to be fixed - Roe v Kingerice
How do we decide if a crime should be strict liability or whether we should insert mens rea?
a) A presumption of mens rea is at its strongest when the offence is 'truly criminal' b) For strict liablity, it should be a matter of public concern whose objective will be promoted with the use of strict liability (Gammon v AG of Hong Kong )
What are 3 benefits of strict liability?
a) Liability without fault sends a clear warning about the prohibition b) Mens rea is often hard to prove c) Truly faultless crimes will not be prosecuted
In Wallace, would it matter if the euthanasia had happened in the UK?
it is not settled that an act simply by being unlawful breaks the chain of causation (R v Gnango [2011] UKSC)
