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LLB London: Criminal Law chapters 2-5

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what is the ethical retribution theory what is neg and pos retributive theory How does a utilitarian see punishment what are some effects of punishment according to utilitarians How do courts act in practice actus reus ; mens rea Heron 1982 Woolmington v DPP 1935 limits to D of automatism sane v insane automatism ; verdict? sane insane, burden of proof The M'Naghten Rules : insane automatism Rabey v The Queen; what is the rule and what is the problem Bratty R v Burgess

some moral law requires punishment, moral connection between wrongdoing and punishment.


negative: people ought not to be punished unless they have done something wrong. positive: people who have done wrong should be punished. justification for punishment looks to the future. should maximize crime prevention but no further. wrongdoing is necessary but not sufficient for punishment. Bentham: father of utilitarianism. particular deterrence, general deterrence, educational effect




Utilitarian, but difficult in practice. the external situation forbidden by law the mental state required for serious crimes (usually intention or recklessness) example of mens rea which is not immoral, HL stated that intent required was the intent to commit the act, not to perform a dishonest act. burden is on P, requirement that act is voluntary. 1. D exercised some control 2. where condition can be brought within ambit of the rules of insanity 3. prior fault on part of the defendant sane: can be acquitted insane : not guilty by reason of insanity, may be prescribed time in hospital. sane : D medical evidence supporting plea, P beyond reasonable doubt insane: raised by D => probabilities, P =>BRD howver if raised by defence note that jury convicts if reasonable doubt. D presumed sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; defence of insanity, it must be clearly proved that, at the time of the committing of the act, D was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong defines the blunt rule defining internal v external causes => sane or insane. problem is , related to source rather than effect. e.g. hyper/hypo glycemia










before defence of automatism can be laid to jury 2 questions need to be addressed: 1. is there sufficient evidence 2. is it insane (M'Naghten rules) or sane.


Bratty what overriding principle is reaffirmed was found guilty of murder because insantiy was rejected by defence.

refers to Woolmington in that by default burden of proof BRD is on P. If jury has a doubt as to state of automatism, they should acquit, since => BRD not satisfied. D must raise evidence of automatism on BP then P must prove one of the following: 1. D did not lock control (no auto) 2. auto was caused by disease of mind=> insanity 3. auto was self induced (external no D for basic intent). State of Affairs and Possession SA: drunk in public place or an act or omission by D (conduct) sometimes AR comprises conduct and circumstance e.g. perjury. event or circumstance is connected to D e.g. Oil pollution act. owner of pipeline. legislation should contain liability to those responsibility and 1. who have control to prevent e.g. owners 2. vicarious liability: employees/ers 3. caught on English soil without a permit, but was brought by police. however convicted=> involuntariness is not a defence for situational liability.


2 types of Actus Reus based on circumstance State of Affairs



Larsonneur 1933 Winzar 1983: found only drunk at hospital put back in car and then convicted, drunk on highway. crimes of possession


Misuse of Drugs Act theft Act: must show that the D has with him " instrument of theft" eases evidential issues, helps crime prevention, police can intervene at an early stage. Do not require use of drugs or theft instrument. intoxication: recklessness: defendant can use the defence unless he foresaw the risk of becoming dangerous. antecedent actus reus: act occurs before automatism starts, e.g. D falls asleep while driving. 1. Epilepsy (Sullivan 1983) D attacked someone 2. Sleepwalking : Burgess 1991, injured V (danger of recurrence should be classifies as insanity. Hyperglycaemia : (Hennessy 1989, Bingham 1991) Hypoglycaemia (Quick 1973): D attacks patient, requires external factor Non self-induced: not guilty of prior fault : hypoglycaemia, swarm of bees in car, concussion from blow, defence for basic and specific self-induced:voluntary intoxication by drugs or alcohol, not a D for basic intent, only specific (D could not form mens rea for crime). specific intent/strict liability requires mens rea no mens rea 1. offence capable of omission? 2. was D under duty 3. is conseuquence result of D's failure to act 1. contract Pittwood (1902) 2. D inadvertently creates dangerous situation, becomes aware fails to act 3.relationship (parent) (may change as child grows older-adult) 4. care of another, doctor/patient D left intoxicated friend asleep in car in hot weather. Crown Prosecution Service decides not to prosecute, upheld. held that the defendant was only responsible for the welfare of his passenger whilst the car was in motion. His duty towards his friend did not continue because the risk of death was not reasonably foreseeable -reasonable man would not have forseen result=> no duty


involuntariness (automatism): 3 situations arising due to antecedent fault examples of insane auto.



example of sane auto (simpliciter) 2 categories of sane automatism



strict liability basic intent 3 considerations for ommission examples of duty (Miller 1983)




Lewin v CPS (2002)


Airdale NHS Trust v Bland (1993) conclusion about omission NHS Trust A v M and NHS trust B v H (2001) R v Cox (1992) Khan and Khan 1998 which key cases describe duty, comment on each case Example of state of affairs as an actus reus

removing nasogastric tube is an omission=> failure to treat does not cause liability=> Acquit.


ruled that removing life support from a person in a vegetative state is not against ECHR art. 2 Cox: doctor convicted of murder even if patient requests lethal injection.


dealers supplied heroin to victim who died. D failed to summon medical help. Convicted, but CA quashes because judge had not considered duty and did not direct the jury with respect to duty. Khan v Khan 1998: drug dealers do no summom aid, conviction quahsed, no direction given on duty by judge. Singh 1999: CA held that question of duty to act is of law and for judge to determine. Willoughby 2004: question of duty is for jury provided there is sufficient evidence of establishing duty in law. R v Evans 2009: CA quashes appeal against conviction. for gross neg. manslaughter when D contributes to state of affairs which he knew or ought reasonably to have known had become life threatening, duty to act arises. she had in effect created a dangerous situation and failed to take action to reduce the risk by summoning medical assistance which would have saved her. Road Traffic Act 1998 any person who, when in charge of a mechanically propelled vehicle in road or other public place is unfit to drive through drink or drugs commits an offence may happen even when D is sleeping. also theft Act 1968: if in charge of an article to be used in connection with burglary.




What 2 types of crimes without an act Melli v R 1954

State of affairs actus reus and omissions.


D struck V over head, believer dead then rolled over cliff, was found that real cause of death was exposure. D claims mens rea never accompanied actus reus. Held - It was impossible to divide up what was really one series of acts; the crime was not reduced from murder to a lesser crime, merely because the appellants were under some misapprehension for a time during the completion of their criminal plot; similar to Melli 1954, series of acts leading to death cannot be decoupled. if mens rea is in effect to one D can be convicted even if mens rea did not apply in final act. Here, D thought V was dead when she was thrown in river. D convicted of manslaughter, held on appeal. note that Meli is for murder. possession fraud having an offensive weapon (if weapon is offensive depends on intention at the time).


R v Church 1966 examples of crimes where AR and MR are combined Result v conduct crimes M'Naghten Rules



result: law is interested in result not the conduct that brought about result. conduct : "do not have to wait to see if something happens as a result of what D does". the jurors ought to be told in all cases that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.



Comparison of Automatism and Insanity

Both are mental condition defences 2. Both affect capacity 3. Both operate as excuses, ie no conviction 4. Automatism and insanity negate mens rea and actus reus. 5. Both require support of medical evidence 6. Autom (always) and insanity (usually) both require the defendant's mental condition to affect D's understanding of the nature and quality of his act Insanity unlike automatism requires disease of the mind. External/internal dichotomy. 2. Automatism is an absolute defence. Insanity is a qualified defence. Special verdict available. 3. Prior fault operates for automatism (Lipman, Quick, Bailey). Not for insanity. 4. Burden of proof differences. Bratty, McNaghten Rules, Burgess, Sullivan, Quick actus non facit reum, nisi mens sit rea


Contrast between Automatism and Insanity


Automatism /insantiy defintion cases latin: the act itself does not constitute guilt unless it was done with a guilty mind. Actus reus Mens rea



This is the 'external' element of a crime - i.e. conduct, circumstances and, in the case of a result crime, the consequences. the 'internal' element of a crime. It must be proved that at the time the defendant was responsible for the actus reus of the offence with which he is charged, he behaved with the state of mind relevant to that offence. must coincide. officer shot and wounded an escaping thief. At the time, any degree of force could be used to arrest a fleeing felon but, when he fired the gun, he did not know who the thief was. He was convicted of intentionally causing grievous bodily harm because the thief was shot and the gun was fired by a man not caring whether the shot was lawful or not. That the thief was later proved to be a felon did not prevent a concurrence between actus reus and mens rea at the instant the shot was fired, i.e. no retrospective justification is allowed. example where men rea without actus rea led to quashed conviction in a case of hire purchase of car. D had intended to make a false representation which turned out to be true. The mens rea requirement for the offence of criminal damage contrary to s.1(1) of the Criminal Damage Act 1971 is intention or recklessness on the part of the defendant as to the damage or destruction of the property which belongs to another.



R v Dadson (1850)


Deller (1953) What mens rea needs to be proved on the part of a defendant who has been charged with criminal damage contrary to s.1(1) of the Criminal Damage Act 1971? What is the conduct element of the offence of criminal damage contrary to s.1(1) of the Criminal Damage Act 1971? lawful excuse Dadson, Deller



The conduct element of the offence of criminal damage contrary to s.1(1) of the Criminal Damage Act 1971 is any conduct which results in the damage to or destruction of property belonging to another. Note that this could include an omission to act.


If, as stated above, without lawful excuse is an element of the offence of criminal damage, it could be argued that as D has - albeit unknown to him - a lawful excuse, he cannot be guilty of this offence. In order to convict D the prosecution must prove all of the elements of the offence with which D is charged (see Deller(1952)). However, it could be argued that rather than being an element of the offence itself, a lawful excuse is, in fact, a defence. If this is the case, then on the basis of the decision in the case of Dadson (1850) 2 Den 35, D may be found guilty of criminal damage.


Woolmington v DPP [1935] conclusions

BRD for P The requirement that it should be a voluntary act is essential... in every criminal case


Bratty v AG for Northern Ireland [1961]

Denning: No act is punishable if it is done involuntarily: and an involuntary act in this context... means an act which is done by the muscles without any control by the mind such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing such as an act done whilst suffering from concussion or whilst sleepwalking... Brake failure through no fault of the defendant would equally give the driver no control over the situation a motorist... [who] has been attacked while driving by, for example by a swarm of bees or a malevolent passenger, or because he has been affected by a sudden blinding pain, or because he has become suddenly unconscious by reason of a blackout, or because his vehicle has suffered some failure, for example, through a blow-out or through the brakes failing Broome v Perkins [1987] Isitt [1978] if D has some control, defence does not operate, driving was purposive. He had some control.


Burns v Bidder [1967] Bell [1984] (cf Bratty): examples of involuntary actions=> not criminal



cases involving partial loss of control=> no defence Isitt [1978] CA: dangerous driving there was evidence that he appeared to have been drunk. He raised psychiatric evidence claiming that the original accident had caused 'an hysterical fugue' leading to memory loss: his subconscious mind had taken over so that he did not appreciate what he was doing when he was driving. Broome v Perkins [1987]



The appellant was a diabetic. He had driven erratically while suffering from hypo-glycaemia (low blood sugar level caused by an excess of insulin in the bloodstream). His defence of non-insane automatism failed because of evidence that he had exercised conscious control over his car by veering away from other vehicles so as to avoid a collision and braking. His conviction for driving without undue care and attention was therefore upheld. D: evidential burden of adducing some medical evidence to support the plea of automatism. P=>BRD D raises it, BOP if P raises usually response to plea of sane automatism,=>BRD Insanity is one of the exceptions to the rule in Woolmington (see page 21). Therefore where the defendant raises a defence of insane automatism the burden of proof rests on him to prove on balance of probabilities (the civil standard) that, at the relevant time, he was suffering from insane automatism. Bratty 1961 Sullivan 1983: epilepsy Hennessy [1989] CA and Bingham [1991] diabetes Quick : diabetes internal/external R v Burgess : 1991 sleepwalking R v T (1990) R v Bailey [1983] : self-induced R v Hardie [1985] : Valium Lipman : voluntary intoxication Majewski :self-induced intoxication is no D to basic intent Broome v Perkins [1987]: some control=> no D


proof Sane Automatism


proof Insane Automatism Woolmington exception



cases for insanity


In R v Burgess 1991

CA ruled that the defendant who wounded a woman by hitting her with a video recorder while sleepwalking, was insane under the M'Naghten Rules. Lord Lane said, "We accept that sleep is a normal condition, but the evidence in the instant case indicates that sleepwalking, and particularly violence in sleep, is not normal." during an epileptic episode, the defendant caused grievous bodily harm: epilepsy was an internal condition and a disease of the mind, and the fact that the state was transitory was irrelevant. diseases of the mind need have no permanence!! The Court of Appeal, in confirming the correctness of the trial judge's ruling, held that the defendant's loss of awareness had not resulted from the operation of external factors upon his body, such as the injection of insulin (as in R v Quick [1973]), but instead had resulted from an inherent physical defect, ie diabetes. The hyper-glycaemia suffered by diabetics, which was not corrected by insulin, was to be regarded as a disease of the body which affected the mind for the purposes of the M'Naghten Rules. caused by an external factor such as hypoglycaemia (low blood sugar caused by, for example, a diabetic having taken too much insulin), concussion caused by a blow to the head, alcohol or drugs. In the case of R v T [1990] it was Held: The rape constituted an external factor and therefore the noninsane automatism was open to the jury despite the fact that Post Traumatic Stress Disorder is generally perceived as being a condition of the mind. Non self-induced automatism: self induced


R v Sullivan 1984)


R v Hennessy 1989 The defendant was charged with taking a motor car without authority and driving while disqualified. He claimed that he was suffering from hyper-glycaemia (high blood sugar level caused by diabetes) at the time because he had not taken any insulin to stabilise his metabolism, nor eaten properly for days, and as a result was acting unconsciously. He pleaded automatism but the trial judge indicated that he would only be prepared to direct the jury on the defence of insanity. Sane automatism



Why, in the case of R v T (1990),T took part in a robbery and was charged with robbery and causing ABH. She raised the defence of automatism since at the time of the offence she was in a dissociative state, suffering from Post Traumatic Stress Disorder caused by the external factor of rape. Sane automatism 2 categories



R v Bailey [1983]

diabetic. He visited his ex-girlfriend's new boyfriend and whilst there felt unwell. He took a mixture of sugar and water, but ate nothing. D struck V on head. D claims to have been unable to control his actions because hypo-glycaemic. The defendant was charged under ss18 and 20 of the Offences Against the Person Act 1861. CA held that as s18 created a specific intent crime, even selfinduced automatism could be relied upon as evidence that the defendant did not have the necessary mens rea for the offence (this is consistent with the availability of self-induced intoxication). In relation to the s20 offence however, the court held that self-induced automatism would not provide a defence, where there was evidence that the defendant had been reckless in failing to eat after taking the insulin.


Majewski [1977]

self-induced intoxication is no defence to a basic intent crime applies equally to automatism. The defence may not be relied upon as the defendant will be deemed to have been reckless in allowing himself to get into that state in the first place


Lipman 1970

establishing that voluntary intoxication, however extreme, can not be a defense to manslaughter. The defendant in voluntarily taking dangerous drugs was found to have taken a dangerous risk which ordinary individuals would foresee, with his lack of intention to carry out dangerous acts not thereafter being relevant to a conviction of manslaughter 1. voluntary intoxication (alcohol, drugs) : Lipman 1970 2. recklessness (not alcohol or drugs): Bailey, standard of prior fault is subjective recklessness D may use defence UNLESS HE foresaw risk. 3. antecedent actus reus: fall asleep driving, was careless when he was still awake. Court of Appeal held that the trial judge should have distinguished valium, a sedative, from other types of drugs, such as alcohol, which were widely known to have socially unacceptable side effects. Whilst the voluntary consumption of dangerous drugs might be conclusive proof of recklessness, no such presumption was justified in the case of non-dangerous drugs. The jury should have been directed to consider whether the defendant had been reckless in consuming the valium, in the sense that he had been aware of the risks associated with its consumption, although not necessarily aware of the risk that he would actually commit aggravated criminal damage. If he was acting as an automaton, then as his automatism was caused by an external factor, i.e. the insulin it would be sane automatism (R v Quick; R v Sullivan). He chose not to eat any breakfast after having taken his insulin so we now have to consider whether his automatism was self-induced. If the offence with which he is charged is a specific intent crime then provided he did not have the mens rea for the offence it matters not that there was prior fault. He will be acquitted. If, however, the offence was a basic intent crime then the rule in Majewski that self-induced intoxication is no defence to a crime of basic intent applies to automatism. If John did not foresee that taking his insulin without food would make him uncontrollable and aggressive then he will be able to take advantage of the defence. If he is successful then the verdict will be an unqualified acquittal. It is therefore the diabetes which has caused his state of automatism. Diabetes is a disease and, according to Lord Diplock in Sullivan, any disease (whether temporary or permanent, functional or organic) which causes an impairment of mental faculties is a disease of the mind within the M'Naghten Rules It does not have to be a disease of the brain (see also Hennessey). Therefore if John pleaded automatism as a defence, the court would rule that it was insane automatism which, if John's plea was successful, would result in a qualified acquittal - the special verdict of 'not guilty by reason of insanity'.


3 situations where involuntariness can lead to liability R v Hardie [1985]



Having taken the required prescription of insulin for his diabetes, John decided not to eat any breakfast. On his way to work, due to hypoglycaemia he stumbled and fell against Susie who fell over and hurt herself. Having forgotten to take his insulin, John, on his way to work and suffering from hyperglycaemia stumbled and fell against Susie who fell over and hurt herself. R v Hennessy [1989]



The Court of Appeal, in confirming the correctness of the trial judge's ruling, held that the defendant's loss of awareness had not resulted from the operation of external factors upon his body, such as the injection of insulin (as in R v Quick [1973]), but instead had resulted from an inherent physical defect, ie diabetes. The hyper-glycaemia suffered by diabetics, which was not corrected by insulin, was to be regarded as a disease of the body which affected the mind for the purposes of the M'Naghten Rules. The facts here are very similar to those in Sullivan. Epilepsy is a disease and for these purposes would be classed as a disease of the mind. If John wished to plead automatism it would be insane automatism.


While recovering from an epileptic fit, John beat Susie up causing her injury. crime of omission


if D was under a duty to act in a particular situation and has unreasonably failed to do so, the burden on Pto prove all the other ingredients of the offence (i.e. any remaining elements of the AR+MR required for the particular offence with which the defendant has been charged). So, if the court finds that A was under a duty to B, if A has allowed B to die and has been charged with murder or manslaughter, it will still need to be proved that A's conduct was unlawful and that it caused B's death. need MR! includes murder (Procter and Gibbons and manslaughter offence of assault cannot be committed by omission

77. 78.

omission cases Fagan v MPC [1969]


Gibbins and Proctor [1918]

Wretched parents were accused of murder after their children starved to death. were convicted of the murder of Gibbins seven-year-old daughter, by starving her to death. The evidence in this case agrees says that the evidence was less against Gibbins than Proctor. This was because Gibbins gave Proctor money which was sufficient enough to provide for the wants of themselves and their children. Although this may be the case Gibbins was still convicted along with Proctor. . The defendant was subsequently found guilty of an assault occasioning actual bodily harm on these facts. applied principles from Miller.


Santana-Bermudez [2004] A police officer had decided to undertake a search of the defendant, as she suspected that he was a ticket tout. Initially she had asked him to empty his pockets and in doing so he revealed that he was in possession of some syringes without needles attached to them. The police officer asked the defendant if he was in possession of any needles or sharp objects. He replied that he was not. The police officer proceeded to put her hand into the defendant's pocket to continue the search when her finger was pricked by a hypodermic needle. When challenged that he had said he was not in possession of any other sharp items, the defendant shrugged his shoulders and smirked at the police officer Miller 1983


accidentally set fire to a mattress in a house in which he was sleeping. Rather than taking action to put out the fire, he moved to a different room; the fire went on to cause extensive damage to the cost of 800.[2] He was subsequently convicted of arson, under Sections 1 and 3 of the Criminal Damage Act 1971. Miller's defence was that there was no actus reus coinciding with mens rea. Although his reckless inattention to the fire could be said to constitute mens rea, it was not associated with the actus reus of setting the fire. Nevertheless, the defendant was convicted for recklessly causing damage by omission. Miller: arson, Criminal Damages Act Sanatana Bermudez OAPA Gibbins and Proctor: murder D was employed as a gatekeeper at a railway crossing. One day he went for lunch leaving the gate open so that road traffic could cross the railway line. A hay cart crossing the line was hit by a train. One man was killed, another was seriously injured. Pittwood was convicted of manslaughter based on his failure to carry out his contractual duty to close the gate when a train approached. One day they were visited by S's sister Fanny and took her in providing her with a bed but over the following weeks she became ill. She did not eat properly, developed bed sores, and eventually died of blood poisoning as a result of infection. The defendants had not obtained any medical assistance for Fanny although they had known that she was unwell. convicted of manslaughter. CA held that the defendants had been under a common law duty to care for Fanny. This duty had arisen from their voluntarily assuming the responsibility for looking after her,


Examples of crimes by omission




R v Stone and Dobinson [1977]


compare airdale NHS trust v Bland and Re A conjoined twins NHS Trust A v M, NHS Trust B v H [2001] Willoughby [2004] duty R v Evans 2009

surgery to separate the twins was an act. Although not apparently so at first glance, this case is in one sense analogous with Bland. This is because in A the separation of the twins would result in the removal of the blood supply to the weaker twin causing her death and in Bland the removal of the nasogastric tube resulted in the withdrawal of nutrition and hydration causing his death. Court of Appeal did not agree. The blood supply received by the weaker twin was not medical treatment: the operation to separate them would be a positive act. Although the Court of Appeal agreed that the surgery could go ahead without legal consequences for the doctors it was on different grounds. held that the withdrawal of artificial nutrition and hydration from a patient in a persistent vegetative state would not breach Article 2 of the European Convention on Human Rights.



confirmed that, although there may be special cases where a duty obviously exists (such as that between doctor and patient) and where the judge may direct the jury accordingly, the question whether a duty was owed by the defendant to the deceased will usually be a matter for the jury provided there is evidence capable of establishing a duty in law. Held: The judge was wrong to leave the jury to decide the issue of duty of care. The existence, or otherwise, of a duty of care or a duty to act, is a question of law for the judge: the question whether the facts establish the existence of the duty is for the jury. However, the mis-direction did not render the conviction unsafe. The appellant's duty of care arose not out of her familial relationship, nor from her actions in seeking to care for Carly, but from her supplying the heroin. She had in effect created a dangerous situation and failed to take action to reduce the risk by summoning medical assistance which would have saved her. For the purposes of gross negligence manslaughter, when a person had created or contributed to the creation of a state of affairs that he knew, or ought reasonably to have known, had become life threatening then, normally, a duty to act by taking reasonable steps to save the other's life would arise. duty of care owed to patient Child and Young Persons Act (1933) R v Pittwood (1902) - Railway crossing attendant case R v Dytham - Policeman who watched while a man being thrown out of club house was being beaten to death R v Instan (1893) - Anty gave D money for grocery and did not take care of the Anty. It was held that the arrangement was a domestic and did not legal duty of care R v Gibbon and Proctor (1981) - Extreme neglect of an ill sister in law by a couple R v Miller (1983) - the defendant sleeping rough who caused fire by his cigarette Lewin v CPS. the duty to the friend had not continued because death was not reasonably foreseeable. => normally friends will owe each other a duty to act Stone and Dobinson : invitation => duty? Stone and his mistress agreed to care for his sister who was suffering from anorexia. As her condition deteriorated, she became bed-ridden but no help was summoned and she died. They were convicted of her manslaughter because they had accepted her into their home and so assumed a duty of care for her. where a person has created a dangerous situation and has become aware of it but has failed to take steps to rectify it. This can give rise to criminal liability if the defendant has failed 'to take measures which lie within [his] power to counteract' (Lord Diplock in Miller) it is most important that those considering the issue should not confuse the question of mental capacity with the nature of the decision made by the patient, however grave the consequences, here removing life support



Adomako [1995] legal duty cases



Miller principle Ms B v An NHS Hospital 2002 Stone and Dobinson: conclusion for breach of duty



. The issue is whether a defendant who was under a duty to act has discharged that duty to a reasonable standard. If Luke was under a duty to act, what he did or did not do in discharging that duty will be judged according to how the court considers a reasonable person would have acted under the particular circumstances. It is an objective test. if that was an 'incompetent best' it will not be sufficient to discharge his duty (Stone and Dobinson).


Susan is a doctor. One day on her way to work she comes upon the aftermath of a road accident. Jane is lying at the side of the road, badly injured. The ambulance has not yet arrived. Susan is late for work so she rushes on. Jane dies but would have survived had she received earlier medical treatment. i. Was Susan under a duty to act? Susan is a doctor. One day on her way to work she comes upon the aftermath of a road accident. Jane is lying at the side of the road, badly injured. The ambulance has not yet arrived. Susan is late for work so she rushes on. Jane dies but would have survived had she received earlier medical treatment. Jane is her patient. Winzar v Chief Constable of Kent (1983)

Susan would not be under a legal duty to act. It may be that many people would consider her to have been under a moral duty, but that is all. Breach of a moral duty cannot of itself attract criminal liability. Although she is a doctor that is her job; it does not impose on her any special general duty.


Doctors are under a duty towards their patients. There are a number of civil and criminal authorities for this proposition. One criminal case which confirms this is the case of Adomako. Therefore it is likely that a court would hold that Susan was under a duty to act towards Jane but this might also depend upon the circumstances. For example, if she did not know it was a patient of hers lying in the road and it was not reasonable to expect her to have known, then a court is very unlikely to rule that she was under a specific duty at that particular time. However, if she was deemed to have been under a duty it is likely that she would also be deemed to have been in breach of that duty. the defendant was convicted of being found drunk on a highway contrary to the Licensing Act 1872. The defendant was drunk and slumped on a chair in a corridor within the hospital. The police were called and removed him from the corridor to the street whereupon they charged him with the offence. Blaue [1975] ; Pagett [1983]; Smith [1959] Cheshire [1991 he defendant's conduct must be both the factual and legal cause of the result. sine qua non (or 'but for') test. a precondition of proof of causation but is not sufficient White [1910] Carey [2006] The defendant placed poison in a glass containing his mother's drink. She drank the contents of the glass, but died of heart failure before the poison could take effect. The defendant was charged with murder but convicted of attempted murder. With regard to causation in fact, the defendant's act in placing poison in his mother's drink did not in any way cause her death. If one were to ask, "But for the defendant's act would his mother have died?", the answer would obviously have to be yes; she would have died anyway, thus disproving causation in fact. An argument became violent D1,D2,D3 assaults V , runs away, after which she felt faint, and later died of a heart condition CA, it was inappropriate to hold the defendants liable for the death. There must be an unlawful act that was dangerous in the sense that sober and reasonable persons would recognise that the act was such as to subject Y to the risk of physical harm. In turn, that act must cause the death. When deciding whether an act is dangerous, knowledge of the victim's characteristics may be relevant. In this case, no reasonable person would have been aware of the victim's heart condition which distinguishes this case from Dawson, and from R v Watson Instan [1893] defendant was convicted of the manslaughter of her elderly aunt with whom she lived and who became very ill and unable to fend for herself. The defendant had made no attempt to help her aunt, she had not given her food and neither had she tried to obtain medical help.



causation key cases:

98. 99.

issue of causation Factual causation


White [1910]


Carey [2006]


Causation by omission


Legal causation

judge will direct the jury as to whether something is capable of being the legal cause according to legal principles and the jury will decide on the basis of what the judge has told them whether or not it was in the case under consideration. In other words, whereas whether there was factual causation is a question of fact for the jury, it is a question of law as to whether a factual cause is capable of amounting to a legal cause of an event 'operating', 'substantial', 'substantive' and 'significant'. Smith [1959] Cato [1976] Dalloway (1847) Cheshire [1991] Blaue [1975] R v Campbell , R v Yateman , R v Henry [2009] Essence of causation test - is that if at the time of death, the wound is still an operating and substantial cause, then death is caused by the wound, even though another operating cause may be present. This is often referred to as the chain of causation. If the original wound is merely a setting in which another cause operates, then it cannot be said that death resulted from the stab wound. Is the second cause overwhelming ? convicted of manslaughter because the wound was in fact the "operating and substantial cause of death". As a matter of law it was sufficient if the prosecution could establish that [the heroin] was a cause [of death] provided it was a cause outside the de minimis range, and effectively bearing upon the acceleration of the moment of the victim's death. The Court of Appeal held that the defendant had been properly convicted. Lord Widgery CJ stated that heroin was a noxious substance on the basis that it was likely to injure in common use, and that the defendant had administered it knowing of its noxious qualities. The victim's consent to suffer harm of this nature could never relieve the defendant of his liability, or destroy the unlawfulness of the defendant's act. ot guilty of manslaughter at trial, the jury having been directed by Erle J that if they thought that if the defendant had been holding the reins and had used them the child would have been saved they must find him guilty but if they thought that, under the circumstances, this would not have saved the child, then they must acquit. This case is authority for the point that the result must be caused by a culpable act. Here the culpable act was not holding the reins, which was not the cause of death.


'legal' cause of death synonyms cases


Smith [1959] Smith stabbed the victim who died 4 hours later; A fellow member of his company had dropped the stab victim on the way to the hospital to get treatment. Once in emergency care, there was no blood transfusion. The victim was given saline solution (which, medically, is a gross error), and used artificial respiration - not knowing that the victim was suffering from a pierced lung). It was stated that with proper treatment, chances of the victim's survival was about 75%.


Cato [1976] The defendant and the victim agreed to inject each other with heroin. The victim had consented to a number of such injections during the course of an evening. The following morning he was found to have died from the effects of the drug-taking. The defendant was convicted of maliciously administering a noxious substance contrary to s23 of the Offences Against the Person Act 1861, and of manslaughter, either on the basis that his unlawful act had caused death, or on the basis that he had recklessly caused the victim's death.


Dalloway (1847) The defendant was driving a horse and cart down a road without holding on to the reins. A child ran in front of the cart and was killed. The defendant was not liable as he would not have been able to stop the cart in time even if he had been holding the reins.


Cheshire [1991]

negligent medical treatment could only break the chain of causation where it was so independent of the defendant's acts, and in itself so potent in causing death that the jury regard the contribution made by the defendant's acts as insignificant. had been attacked by a number of men including Campbell and Henry. Sometime later, Yateman, who had been a member of the original group of attackers, committed another assault on the victim and attempted to rob him. The victim subsequently died. Campbell and Henry appealed against their convictions for murder and manslaughter. They argued that the victim's death was caused by the subsequent attack, with which they were not involved. The Court of Appeal dismissed their appeals. There was medical evidence on which the jury was entitled to conclude that their actions in the earlier incident were a significant cause of death and that causation could be established from the injuries sustained by the victim before Yateman's attack. different religions=> different results does not lie in the mouth of the assailant to say that the victim's religious beliefs which inhibited him from accepting certain kinds of treatment were unreasonable. The question for decision is what caused her death. The answer is the stab wound


R v Campbell (Andre), R v Yateman (Jermaine), R v Henry (Lloyd Rudolf) [2009]


Blaue [1975] (similar to R v Holland (1841) where V refuses treatment) The defendant stabbed a woman who needed surgery and a blood transfusion to save her life. She refused the transfusion as she was a Jehovah's Witness and it was contrary to her beliefs. She died. The defendant, appealing to the Court of Appeal against his conviction for manslaughter argued that the jury should have been directed that if they thought the victim's refusal of blood was unreasonable then the chain of causation would have been broken Pagett [1983] gf as human shield killed by police


Court of Appeal held that the defendant's act had caused the death and that the reasonable actions of a third party by way of self-defence could not be regarded as a novus actus interveniens (new act intervening). The defendant had caused the death as the intervening act had been a foreseeable consequence of his action and had not broken the chain of causation. The defendant was liable for manslaughter. Once the defendant's conduct has started a chain of events he will be legally responsible for the result unless the chain is broken by some novus actus interveniens or supervening event. This might be the act of a third party, the act of the victim or an act of God/nature which has become the operating cause. CA quashes "The nature of the threat is of importance in considering both the foreseeability of harm to the victim from the threat and the question whether the deceased's conduct was proportionate to the threat, that is to say that it was within the ambit of reasonableness and not so daft as to make it his own voluntary act which amounted to a novus actus interveniens and consequently broke the chain of causation. It should of course be borne in mind that a victim may in the agony of the moment do the wrong thing."


novus actus interveniens: inervening causes, killing by fright, neglect by V , medical intervention, Acts of God /nature, drugs R v Williams & Davis [1992] The defendants picked up a hitchhiker on the way to Glastonbury festival. The hitchhiker jumped out of the car when it was travelling at 30 mph, hit his head and died. The prosecution alleged that the defendants were in the course of robbing him when he jumped out and thus their actions amounted to constructive manslaughter.



compare Williams and Davis with Blaue (Jehvas Witness)

Roberts and Williams and Davis concern a decision taken by the victim in a moment of panic when he is under threat from the defendant. Here, the issue of reasonable foreseeability is relevant. Where the victim's conduct was reasonably foreseeable it will not break the chain of causation. Where, however, the victim's conduct was 'daft' and therefore not reasonably foreseeable it may break the chain of causation between the defendant's conduct and the result. This seems to be in conflict with the decision in Blaue. Both Roberts and Williams and Davis hold that a response which is not reasonably foreseeable will break the chain of causation. In Blaue, on the other hand, as we have seen, the fact that the refusal was not reasonably foreseeable did not prevent attribution of the death to D. Note that in an 'escape' case the jury must take into account that the victim was acting in the 'agony of the moment' when determining whether the victim's conduct was within the range of responses which might be expected from a victim placed in his situation. Following threats to the victim, the defendant broke down her door. The victim jumped or fell out of the window suffering severe injuries. The defendant was convicted of inflicting grievous bodily harm, contrary to Offences Against the Person Act s20. On appeal it was held that the prosecution had to prove causation and could do so by showing that the victim's escape through the window was a natural result of the defendant's actions. The defendant is the cause of death / injury if that death / injury is the result of the victim reacting to the defendant's conduct and such a reaction is reasonably foreseeable. When a victim dies as the result of fright - where, for example, the fear caused by the defendant causes a physiological reaction such as a heart attack - then the defendant takes the victim as he finds him. Hayward (1908 Watson [1989] carey Dawson 1985 The abnormal state of the deceased's health did not affect the question whether the prisoner knew or did not know of it if it were proved to the satisfaction of the jury that the death was accelerated by the prisoner's unlawful act. found that where the victim had died of a heart attack, a jury could have decided that the appellants' acts of burgling the house of a frail 87-year-old and verbally abusing him when he awoke had caused his death. The defendants robbed a petrol station attendant who was 60 years old and threatened him with a fake firearm and pickaxe handle. The victim suffered from a severe heart condition and upon seeing the robbers, he became scared, had a heart attack and died. The defendant's conviction for manslaughter was quashed. The facts which should have been known to the sober and reasonable person when deciding whether the act was dangerous did not include the attendant's heart condition. The sober and reasonable person should have the same knowledge as the man committing the robbery it is likely that the defendant will be held to be responsible for the death, Holland, Blaue Jordan [1956] Smith [1959] Malcherek [1981] Cheshire [1991] Gowans [2003] Smith was stabbed twice by a bayonet and one wound pierced his lung. He received bad treatment in hospital but at the time of death, the original injury was still a substantial and operating cause of death even though it was not the only cause. Negligent maltreatment as a result of an injury caused by the defendant will not break the chain of causation. The defendant inflicted injuries upon the victim which caused brain damage. The victim was placed on a life support machine but was declared brainstem dead. The doctors then turned off life support. The Court of Appeal stated that the wounds caused by the def were a substantial and operating cause of death and that the doctors turning off the life support machine, did not constitute a novus actus interveniens. "The fact that the victim has died despite or because of medical treatment for the initial injury given by careful and skilled medical practitioners, will not exonerate the original assailant from responsibility for the death" per Lord Lane.


Marjoram 2000


Killing by fright: cases


Hayward (1908 Watson [1989] Dawson 1985




Neglect by the victim Medical interventions: cases



Smith 1959


Malcherek [1981]


Jordan [1956] contrast Smith, here wound was no longer operating cause,

D stabbed the victim was held not to be liable for his death. The victim had died after receiving 'palpably wrong' medical treatment when his wounds had almost healed. According to the court, death which resulted from 'normal medical treatment' would not break the chain of causation. the court decided that negligent medical treatment could only break the chain of causation where it was so independent of the defendant's acts, and in itself so potent in causing death, that the jury regard the contribution made by the defendant's acts as insignificant. They were entitled to conclude on the basis of the evidence that the attack necessitated treatment which had rendered the victim vulnerable to the infection and therefore that the death was attributable to the acts of the defendants. The court added that if the hospitalised victim of an attack contracted a fatal infection 'purely by chance' - for example by breathing in airborne germs - the attack would merely amount to the setting in which another cause operated. In those circumstances, the death of the victim would not be attributed to the acts of the assailant. Kennedy (No.1) [1999] Dias [2002] Rogers [2003] Finlay [2003] Kennedy (No.2) [2005]


Cheshire [1991], similar to Smith


Gowans [2003]


Unlawful administration of controlled drugs: cases recent cases concerning constructive manslaughter and involving the administration of drugs has proved controversial. In these cases the defendant supplied a controlled drug to a user who consumed or selfinjected the drug and then died from its effects. John has been convicted of the rape of Betty. Six months after the rape Betty has still not recovered psychologically. She feels ashamed. She commits suicide. Should John be liable for Betty's death? Dear 1996


The decision leaves open the question as to whether it could be said in a situation such as this that John's act caused the act that caused Betty's death. Equally, it could be argued that suicide (something that might be considered to be a voluntary act) six months after a rape is not reasonably foreseeable and would thus break the chain of causation. Nevertheless the court in Dear seemed to view the fact that the victim's conduct in that case was unforeseeable as immaterial. There is no definitive or easy answer to this question: you must examine the, sometimes conflicting, principles. English criminal law case, dealing with homicide and causation. The court ruled that even if a victim aggravates his wounds sufficiently to cause otherwise avoidable death, the chain of causation is not broken. The defendant must take his victim as he finds him. Therefore if A inflicts a slight wound on a haemophiliac, or lightly hits the head of a person with a thin skull, A will be liable for the consequences. The victim's weakness will not break the chain of causation. his is a very straightforward question based on the facts of Roberts where it was held that where the defendant has frightened the victim to the extent that the victim has killed or injured himself trying to escape the danger then provided the victim's reaction was not so 'daft' as to make it the victim's own voluntary act, it will not break the chain of causation. Therefore if the jury is of the view that Sabina's response was within the range of responses which might be expected from a victim in her position, bearing in mind that she was acting in the 'agony of the moment' (Williams and Davis) then Freddie may be criminally responsible for her injury.



Victims must be taken as found


Sabina accepts a lift in Freddie's car. Whilst driving at 30 miles per hour Freddie touches Sabina's breast and asks her if she will have sexual intercourse with him. Sabina is frightened. She panics and jumps out of the car, breaking her ankle. Should Freddie be liable for Sabina's injury?


Roberts [1990]

The defendant was charged with assault occasioning actual bodily harm. The defendant picked up a hitchhiker and threatened to rape and sexually assault her. When the victim jumped out of the car, as a result of these threats, she suffered bruising. The defendant argued that the causative link was missing and that her reaction was unreasonable and this caused her injuries. It was held that the defendant caused assault occasioning actual bodily harm as the victim's reaction to the threats was reasonably foreseeable. There is causation if the actual bodily harm is a reasonably foreseeable consequence of the defendant's actions. Anna's conduct is the sine qua non of Iqbal's death. But for her stabbing him he would still be alive. However, this factor alone will not make her criminally responsible. The question now to be determined is whether her conduct was also the legal cause. You will remember that in Malcherek where the doctors switched off the victim's life support, this did not break the chain of causation. V=brain stem dead before the ventilator was turned off.D liable as the injuries he inflicted were an operative and substantial cause of death. Anna's case is different, however, in that the nurse, without authorisation, took it upon herself to switch off the machine. This was not medical treatment so the case of Cheshire would not be directly relevant. In Pagett it was said that a free, deliberate and informed intervention by a third party could have the effect of relieving a defendant of criminal responsibility. The nurse's intervention was free, deliberate and informed and is likely to break the chain of causation between Anna's conduct and Iqbal's death. Note that even if, on the basis of the nurse's intervening voluntary act, it was decided that Anna was not criminally liable for Iqbal's death she would, nevertheless, be likely to be found guilty of an offence contrary to s.20 of the OAPA or, depending upon her mens rea, s.18 of the OAPA S.18 carries a maximum penalty of life imprisonment whilst the maximum sentence on conviction for a s.20 offence is five years. If she intended to kill Iqbal she would be guilty of attempted murder, for which the maximum penalty is life imprisonment.


Anna has a fight with Iqbal and stabs him. Iqbal is seriously injured. He is taken to hospital and placed on a lifesupport machine. One night a nurse, who hates money being wasted on expensive lifesupport machinery and without being authorised to do so, switches off the lifesupport machine. Iqbal dies. Should Anna be liable for Iqbal's death?


Lee attacks Sam and beats him up. Sam is injured and taken to hospital. The doctor who attends to Sam has avian flu. The doctor does not know this. The doctor recovers, but Sam who contracts the virus from the doctor does not and dies some days later. Should Lee be liable for Sam's death?

injuries inflicted by Lee on Sam could be said to be the factual cause of Sam's death. The issue is whether they are the legal cause of death. Again, this is not medical treatment as such but one difference between the two questions is that in Anna's case the nurse's conduct was advertent - she deliberately killed Iqbal - whereas in Lee's case the doctor's infection was inadvertently passed on to Sam. However, it does not necessarily follow that this, in itself, will determine the outcome, although generally where intervening conduct is free, deliberate and informed it is far more likely to break the chain of causation. What will fall to be decided here is whether or not the injuries were, or may have been, merely the setting in which what happened at the hospital caused Sam's death (Jordan; Smith). If that is all they were, Lee is unlikely to be criminally liable for Sam's death. (Gowan 2003). Note that, as with Anna above, even if Lee is held not to be liable for Sam's death he is likely to be prosecuted for a range of non-fatal offences depending upon the extent of the injuries he inflicted on Sam (see Chapters 9 and 10) and, if it can be proved that he intended to kill then he would face a charge of attempted murder (see Chapter 14). However, please also note that for the purposes of discussing the issue of causation in relation to these facts you were not expected to speculate and hypothesise as to the actual nature of the injuries.


Natalia, intending to seriously injure him, stabs Ivan. Ivan is taken to hospital where he is told that he needs emergency surgery and a blood transfusion. Ivan is a Jehovah's Witness. One of the tenets of this religion is that its adherents must not accept the blood of another. Ivan, despite being told that if he does not have a transfusion he will probably die, refuses the blood. He dies. Should Natalia be liable for Ivan's death?

This is another straightforward question based on the facts of Blaue. The issue is whether Ivan's voluntary refusal of a blood transfusion breaks the chain of causation between Natalia's act and his death. Such a refusal would not normally be reasonably foreseeable but, applying the principle in Blaue, Natalia must take her victim as she finds him and that includes the whole and not just the physical person, so would include Ivan's beliefs. Ivan's refusal of blood, therefore, would not break the chain of causation between Natalia's act and his death and she would thus be criminally responsible for his death