Criminal Law L5&6 - Lecture notes PDF

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Criminal Law – Lecture 5 - 15/10/18

Actus Reus  Voluntariness, causation, omissions Voluntariness:  No act is punishable if it is done involuntarily - ‘automatism’ - e.g. doing something whilst suffering from concussion  An act done by a person who is not conscious of what he is doing  e.g. Bratty v Attorney General of Northern Ireland [1963] Exceptions to voluntariness:  Liable for other acts – vicarious liability and innocent agency  Pure status offences – e.g. Larsonneur 1993, Winzar v Chief Constable Kent 1983 – man found drunk on highway, but this was the case because the police took him from the hospital to the highway – still convicted  Robinson-Pierre [2014]  Parliament has authority to enact such offences – even if so absolute Causation:  In conduct crimes and result crimes  Necessary to prove defendant was cause of conduct or result  Factual and legal (more complex) causation  “w Causation is heavily context-specific --> parli. May apply different rules of causation in diff. Situations” Factual causation = the ‘but for’ test General rule --> it must be proved that but for D’s act or omission the event or result would not have occurred e.g. R v White [1910]  Defendant put poison in mothers drink  Mum died – doctor claimed it was due to heart attack  Convicted but on appeal – But for D’s actions would V have died? Yes, she would have did either way so there is no causation in fact (still liable for attempted murder) Most cases clear that there is fact/legal cause – but there are more complex cases: Multiple factual causes: o X orders y to seriously injure Z o Y stabs z, assisted by A o Z’s wound in negligently treated by B o Z dies of infection in the wound o Infection hastened by insanitary conditions Is everyone a factual cause? Chain of causation – how far back do we go – but for X’s dad not abusing him then he wouldn’t have done it...? - as seen below we can be sure parents are not liable Is there anything Y, B or hospital does that is significant? Two questions for legal causation:

1. Is D’s conduct more than minimal (de minimums) factual cause of result? 1. Is the ‘chain of causation’ between D’s conduct and result unbroken by intervening act?

1: R v Hughes [2013]  D driving without full license or insurance  V driving erratically, under influence crossed onto wrong side and collided with D. D convicted of…Road Traffic Act 1988, 3ZB - Causing death by driving: unlicensed,

disqualified or uninsured drivers  Appeal – there wasn’t a significant enough cause – could still say but for  He is being punished for homicide when all he did was fail to pay his insurance ‘The driving of the defendant was, no doubt, a ‘but for’ cause of the death. It set the scene or provided the background to, or occasion for, the fatal collision. But that does not resolve the question whether it was a legally effective cause.’ ‘A defendant charged with an offence under section 3ZB must be shown to have done something other than simply putting his vehicle on the road so that it is there to be struck. It must be proved that there was something which he did or omitted to do by way of driving it which contributed in a more than minimal way to the death.’ 2: Breaking the chain of causation: Legal cause and novus actus interveniens Four situations: A. Abnormal natural events B. Third party interventions C. Medical treatment D. Victim’s reaction a. Intervening natural events: o D assaults V, leaving him unconscious in a building o Before V recovers, earthquake destroys building o V dies o Chain of causation broken o Earthquake not foreseeable in normal course of events = not liable  Different if he hits them and then walks away and leaves them unconscious – tide comes in and kills them – this was foreseeable in normal course of events – so you are liable The Harlot’s Case 1560 Crompton 24

b. Third party interventions: The basic principle - ‘Free, deliberate and informed’ actions by third party will break the chain of causation Kennedy No2 [2007]  In Kennedy – there was a voluntarily act of victim after Kennedy had supplied the drugs – counts as third party intervention – the victim's action had broken the cause of causation, so he wasn’t liable for manslaughter  So, Kennedy is not the legal cause even if he is one of the factual cases 

Unfree third-party interventions:  Pagett (1983) CA – D held his pregnant girlfriend in front of him as shield – police shot

Tried to argue they killed her not him – but this didn’t break the chain of causation – police were acting for their duty, he is liable 

Uninformed third-party interventions:  Michael (1840)  D gave poison disguised as medicine to woman to give to baby, but she didn’t give it  Boy found and gave medicine to baby  Baby died  Only D liable Abnormal and extraordinary interventions:  Environmental Agency v Empress Car Co  Pollution offence when oil entered river after trespasser turned on an oil tap. Surely a ‘free, informed and deliberate’ act of a third party?!?  Trespasser – breaks chain of causation and becomes liable? But no Lord Hoffman disagreed – a trespasser was a normal/nothing extraordinary he wasn’t liable – foreseeable act of life – the company was liable Conflicting principles? Self-injection’ cases:  D knowingly provides V with a prohibited drug in a syringe. V injects him or herself with the drug, which causes V’s death.  Does D cause V’s death by supplying the drug?  Empress Car Co test: even if death unforeseeable, was it a ‘normal and familiar fact of life’? (Lord Hoffmann).  Kennedy (No.2) test [[2007] UKHL 38: was there a ‘voluntary and informed decision to act’? Handling the conflict: ‘D is not to be treated as causing V to act in a certain way if V makes a voluntary and informed decision to act in that way rather than another.’ c. Intervening medical errors  Medical intervention are deliberate and informed  But medical staff under a duty to intervene where a person is injured  Their mistakes may cause death, but intervention is not normally ‘free’ (unless perhaps it is in some way outside scope of their medical duty) C. Medical errors that break the chain: R v Cheshire  D shot V, who was recovering in hospital when died from a complication of a tracheotomy that was negligently missed by medical staff CA held no break in chain ‘The accused’s acts need not be the sole cause or even the main cause of death, it being sufficient that his acts contributed significantly to that result. Even though negligence in the treatment of the victim was the immediate cause of death [it is only if] the negligent treatment was so independent of his acts, and in itself so potent in causing death that it will be regarded as supervening the acts of the accused.’ Red = will be a legal cause R v Jordan 1956

 V stabbed, almost recovered given anti-biotics by staff which he was allergic to and died  This was potent and so independent of Jordan’s acts that it renders Jordan’s acts insignificant  He wasn’t liable for the death Why diff for Cheshire and Jordan? Only if second cause is so overwhelming – so independent of first cause that it would break the chain of causation Class readings = Essential case - Textbook - Extra reading - Cases on reading list – minimum to

know to do well – read some in full Recap: 1. Factual causation – necessary condition – but for cause 2. Legal causation – sufficient condition – significant cause - More than a minimal factual cause - No intervention to break chain of causation Lecture 6 – 16/10/18 (continued) d. Victim’s reaction: R v Roberts (1971) - Victim jumped out of moving car after driver made suggestive remarks to passenger - Charged for bodily harm but appealed that it wasn’t his fault – but court didn’t agree – An intervening reaction by V only breaks the chain of causation if it is not the natural result of what the alleged assailant said and did - Was the victims reaction so daft that a reasonable person would have not foreseen it? Court concluded it wasn’t so daft – it made sense Other cases Martin (1872) 3 C&P 211 – Son drank wine died even though father thought he’d only have a sip – wasn’t liable Dhaliwal [2006] EWCA Crim 1139 – wife commits suicide after abuse, court agreed this was a reasonable reaction so husband was liable Who is the reasonable person? R v Blaue [1975] D stabbed V piercing lung. V was a Jehovah’s witness and refused blood transfusion on religious grounds and died as result – CA upheld the homicide conviction – does her action breaks the chain of causation? Court claimed no –  

Was it reasonably foreseeable at moment of stabbing that she would not change her religious believes? “the thin skull rule” – you must take your victim as you find them - if you hit someone lightly and he dies tough, still killed them

R v Wallace [2018]  D poured acid on ex-boyfriend in 2015

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V was left disfigured, visually impaired, completely paralyzed and in a permanent state of unbearable constant physical and psychological pain that could not be ameliorated by his doctors. V moved to Belgium to be cared for by father Applied for and granted voluntary euthanasia under Belgian law (illegal in UK) Carried out in 2017 V applied and was granted euthanasia under Belgium’s law D prosecuted for murder – D’s lawyers argued the Belgium doctors broke the chain of causation – euthanasia would have been murder in English law so not foreseeable Court of appeal agreed

Were the Belgian doctors acts free?  Doctors don’t necessarily have to carry out mercy killing – it’s a choice – so it was free – under no positive duty – didn’t break chain of causation (Lord Justice Lawton) Judges suggestion to jury: If you’re sure it wouldn’t have come to this but for the acid attack ask the following questions:  Are you sure that the defendant’s unlawful act of throwing acid over Mr van Dongen was a significant and operating cause of death?  Are you sure that at the time of the acid attack it was reasonably foreseeable that the defendant would commit suicide as a result of his injuries? (see PP) Legal doubts: do you need both of these questions? If it isn’t reasonably foreseeable then logically those actions must not be significant? Too many principles? • No free, deliberate and informed intervening act (Kennedy) • No abnormal and extraordinary intervening act (Empress Cars) • Significant and operating cause (Cheshire/Smith) • Reasonable foreseeability of result (Roberts) • Thin skull rule (Blaue) • Significant/operating cause + reasonable foreseeability (Wallace) Do these principles genuinely conflict or are they different accounts of a common underlying principle? Can they be reconciled by confining them to particular factual situations? ? Alternative: factual cause plus sufficient MR for the result -

So many principles that allow you to come to so many different decisions – too much discretion? Is there a pattern?

Omissions:  In English law there is no general duty of easy rescue (cause harm)  Diff to USA - Rhode Island Legislation  Act liability – free to choose to do whatever the law does not prohibit  Omissions liability – free to choose to do only what the law requires

Duty of easy rescue: • Child drowning in the pond – not under any duty to act • Problems with duty of ease: Scope of liability – multiple bystanders, who should be responsible? Causation – which of them caused the death? • General rule in E&W - omissions liability is an exception

Exceptions = omissions liability  Two types of exceptions to the general rule 1. Judge-made exceptions:  Law enforcement Dytham (1979) 69 Cr App R 387 – police officer who failed to stop killing  Contract - Pittwood (1902) – manual train gates -Pittwood had duty to bring gate down and his failure to act had caused death so liable  Dangerous situation - Miller [1983] – homeless person, drunk – smoke on bed caught fire – charged with arson, by the time he had mens rea the actus rea had ended was his defence – court disagreed - Interesting application of Miller is in R v Evans [2009] – Evans supplied drugs her half-sister, victim died – looked after her before but with their mum didn’t call for help so liable – this overrules Kennedy?? Well, no because here drug dealer hung around and new they were creating a situation  Assumed responsibility – - family: Parents – Gibbins v Proctor (1919), But not half-sisters – Evans [2009] (mum was liable but not half-sister) - Other relationships Stone and Dobinson – Stone’s sister comes to stay, anorexic – ends up dying – they were held liable for gross negligence manslaughter – tried to help so became responsible but didn’t notify anyone else (complicated case as they were educationally challenged) - Sinclair, Johnson and Smith (1998) 21 Aug, CA Duty to act – people will rely on you – you yourself volunteered – autonomy is not violated then 2. Statutory duties  E.g. Failure to report info about terrorism: offence if “he does not disclose the information as soon as reasonably practicable”  This has been imposed on us – not something we volunteer to When is an omission not an omission? - Fagan v Commissioner of Met police - Airdale NHS Trust v Bland [1993] – switching of machine was an omission to treat not to act...