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TUTORIAL TWO: CULPABLE HOMICIDE AND OMISSIONS Before the Tutorial Individually 1. Read the factual scenario set out below. 2. Read P R Ferguson and C McDiarmid, Scots Criminal Law: A Critical Analysis, 2nd edn (2014) sections 6.5-6.7 [you can skip over section 6.6 (“by statute”) for the purposes of this tutorial] 3. Read C H W Gane, C N Stoddart and J Chalmers, A Casebook on Scottish Criminal Law, 4th edn (2009) paras 2-04 to 2-16 [digitised excerpt available via Reading Lists] 4. Read the following cases [on Westlaw]: a. Bone v HM Advocate 2006 SLT 164 b. R v Stone; R v Dobinson [1977] QB 354 In your groups Prior to the tutorial, your group should discuss the liability of the three individuals mentioned in the scenario. While you should consider all three of them, group A should focus on Becca, group B on Carrie and group C on Delia, and be prepared in particular to present your views on the relevant individual during the discussion. Factual scenario Annie, Becca, Carrie and Delia are all students at the University of Glasburgh who are sharing a flat during their final year. The flat belongs to Annie’s mother, Emily. Annie and Becca are in a sexual relationship and at the end of the previous academic year they entered into a civil partnership. Carrie is Annie’s cousin. Delia did not know any of the other women before renting a room in the flat. The flat has three bedrooms. One is shared by Annie and Becca. Carrie and Delia occupy a bedroom each. Since she started University three years previously, Annie has experienced bouts of severe depression and has twice attempted suicide. Over the summer, Annie and Becca lived with Emily. Emily became very worried about Annie over the course of the summer. Annie did not appear to be eating and seemed very withdrawn, even during her civil partnership ceremony. Just before the start of the new term, Emily contacted Carrie and asked her if she would keep an eye on Annie and let her know if Annie seemed unwell, which Carrie agreed to do. In return, Emily agreed that Carrie could live rent free at the flat. A few weeks into the term, Annie started to miss classes and spend more and more time in her bedroom. When she did emerge from her room, it was only to get water and she looked unwell and abnormally thin. During this time, Becca continued to share the bedroom with Annie and to attend classes as normal. Matters came to a head on a Friday night, when Becca

was away on a study visit to the European Court of Human Rights. Delia realised that it had been two weeks since she had seen Annie and knocked on Annie’s bedroom door. Annie told her to go away. Delia tried to open the bedroom door but it was locked. Later that evening, Delia heard a faint moaning sound coming from Annie’s bedroom. Delia phoned Becca in Strasbourg and told her everything. Becca seemed entirely unconcerned and told Delia not to worry as “Annie often does things like this to seek attention”. Delia was not reassured and called Carrie, who was rarely at the flat as she spent most of her time with her boyfriend. Carrie came over to the flat immediately. She agreed that something ought to be done and told Delia she would ask her criminal law tutor first thing on Monday morning whether it would be lawful to break down Annie’s bedroom door. On Saturday evening, having seen or heard nothing from Annie in 24 hours, Delia decided to take action alone. She forced Annie’s door open and discovered her unconscious. She called an ambulance but Annie died later in hospital. The cause of death was starvation. Forensic investigators recovered hundreds of text messages on Annie’s mobile phone from Becca, telling Annie she was fat and useless and threatening to leave her if she did not lose weight. Becca, Carrie and Delia are charged with the culpable homicide of Annie. Discuss the likelihood of the Crown securing the conviction of each of the three accused on this charge. FORMATIVE ASSESSMENT: All students must submit a written answer to this question online via Moodle by 12 noon on Wednesday 28 October. The answer should not exceed 1,200 words in length. Please note this is a strict limit: there is no “10% grace” rule and answers in excess of 1,200 words will be subject to a marking penalty.

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The issue was to find that the defendants owed a duty of care to the victim Offences which consist simply in a failure of doing something which one is required to do Issues of causation Maybe duty assumed towards the sick or helpless It was common ground that wilful failure to protect the child involved "a wilful failure to take steps that could reasonably have been taken to protect her. Victim: Annie Becca: in a sexual relationship with Annie and at the end of the previous academic year they entered into a civil relationship Carrie: Annie’s cousin o Between Carrie and Emily was and understanding that Carrie would look out for Annie Delia: did not know Annie before

Becca and Annie– culpable homicide Actus reus (act; not always an act) - Here: not an act because becca didn’t do anything physically (doing nothing – an omission)  crimes of commission by omission: e.g. William Hardie (1847) Ark 247 I-ssue - The issue is culpable homicide – omissions liability for culpable homicide - All we are interested in is culpable homicide; route 2, recklessness type culpable homicide o The mens rea is recklessness (Transco PLC v HM advocate 2004 JC 29) o Actus rea is an act or omission that causes death or destruction of life  The actus rea in this case is omission R-ule - Omission o We don’t typically punish a failure to act o To begin considering omissions liability we need o 1. A legal duty to act (Bone v HM Advocate)  Duty arises where  There is a special relationship  Where you have created a risk  A voluntary act to accept responsibility (R v Stone)  Friends (Levin v DPP) o 2. Was the duty mischarged? Failure to mischarge (Bone v HM Advocate)  Bone tells us that in considering whether reasonable steps are taken, you must consider the circumstances in which the reasonable steps are expected; the mental capacity of the accused o 3. Failure to mischarge o 4. Causation (MacDonald case) o 5. Mens rea; were they reckless?  aware of the risk

Becca and Annie -

Definition of culpable homicide Authority (reading list)

The likelihood of the Crown securing the conviction of Bella for culpable homicide. There was no positive act as Becca simply did nothing that’s why the only issue is culpable homicide by omission. For the conviction of culpable homicide we need a legal duty to act (Bone v HM Advocate), the duty cannot be mischarged (Bone v HM Advocate), Causation (MacDonald case) and the Mens rea which is recklessness. Becca and Annie were in a civil relationship which gives Becca a duty to act towards Annie. Based on the circumstances what is reasonable for Becca to do? As she was out of town the night of Annies death it was not reasonable for her to be physically there but in fact it was reasonable for her to call an ambulance after she got the call from Carrie. There is also no sign of Becca being mentally disabled or behind therefore there is no possibility of mischarging the duty.

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Read the question Identify the people and crime Authority (actus rea and mens rea) Define Apply

Recklessness type Culpable homicide by omission recklessness (state of mind, aware of the risk) (Transco) by omission  causation

Bella Omissions liability - Parent and child (Bone v HM Advocate) - Husband and wife; civil partners (no Scottish authority, English case  Russel (no duty saving his wife) in hood (not voluntary)  krankheit discutieren - Siblings (cousins)  - Friends (lewin) no duty to act (friend died in car) - Creating a risk (not on the essay) - Voluntary accept a risk (R v Stone) obligation to act o R v instant o In this case: Carrie Duty has been discharged (subjective one; physically and psychologically) - Bone v Advocate o Mental capacity o Bella -

Duty to act (+) Discharged (-) Actus rea ( omission) Mens rera

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Causation o But for: argumentieren o Direct cause (take away food (-) o or indirect cause: recklessness o aware of the risk of desk (+), deprerssed for 3 years, does that for attention

carrie - 1. Legal dutx o Voluntary - 2. Discharged o Not taklen any steps to discharge the dury - 3. Causation o But for o Indirect or direct - 4. Recklessness o Aware of the risk

Delia -

1. Legal dury to act (-) 2. 3. 4....