Law N.A. Crimi

Answer 1(a).

In accordance with the provisions of The Police and Criminal Evidence Act of 1984, a police constable is empowered to arrest without warrant an individual who is guilty of an offence that has been committed or a person whom the officer suspects, on reasonable grounds, of having committed that offence[1].

Arrests under section 24 of this act require that first, the arrested person’s involvement, suspected involvement or attempted involvement should be present. Second, reasonable grounds exist for establishing that such arrest is essential and these are that the person should be either about to or should be in the act of committing the offence, belief of the police officer that the person is about to commit or is committing an offence, the suspicion entertained by the police officer that the person is guilty of the offence committed and lastly the person should be guilty of having committed the offence.

 First, John allowed his step daughter Zoe to fall into the water, second, he did not pay any heed to her cries for help, third, he took no steps to come to her rescue even when other bystanders had asked him to do so and fourth, he did not even phone the ambulance service. All this goes to show that his intention was to ensure Zoe’s death, because he hated her. Thus John is guilty of manslaughter and his arrest by PC Khan is lawful.

Answer 1(b)

Criminal offences fall under three categories, namely, those that can be tried summarily, those that require indictment before being tried and finally offences that can be tried in either manner. The offence of manslaughter belongs to the group of offences that require indictment prior to being tried. These are some of the worst type of offences and include murder, manslaughter, wounding with the intent to cause grievous bodily harm, sodomy, rape, aggravated burglary, robbery, arson with the intent to endanger life, blackmail, treason, kidnapping, etc[2].

Since John’s has committed a serious indictable offence, he will be tried at the Crown Court before a judge and jury. However, before the Crown Court trial, one or more pre – trial hearings are conducted in order to enable the judge to sort out the preliminary issues, which will increase the competence and usefulness of the trial. The parts of this procedure are first, plea and case management hearing, in which it is ensured that the trial has been properly made and the defendant has been correctly arraigned.

Second, preparatory hearing, in which the issues of likely importance for the jury and that will hasten the proceedings or help the judge in the management of the trial are identified. Lastly, the pre – trial rulings, which consist of rulings made by the judge and which will be legally binding, in respect of “the admissibility of evidence or even issues of law[3].”

Initially, the accused will be presented in the Magistrates’ Court and the issues of bail and legal aid will be discussed. Subsequently, the case is forwarded to the Crown Court for working out details in respect of the time schedule for trial, etc. The trial will be conducted in the trial court and the indictment will be sent to the Crown Court for adoption[4].

This in brief is the trial procedure adopted in the United Kingdom in respect of indictable offences.

Answer 2.

The actus reus requirements for the offence of gross negligence manslaughter are that

The accused had owed a duty of care to the deceased. John as a parent has a duty of care towards Zoe his step daughter. This duty was breached by the accused and as to the test of whether John had acted or omitted to act like a reasonable person it has to be concluded that John’s actions were not that of a reasonable person. The cause of death of the deceased could be attributed to such a breach. Since, John just kept watching while Zoe was drowning, his omission to take any step whatsoever, resulted in the death of Zoe. Therefore, it can be construed that Zoe’s death was due to John’s breach of duty.

Such breach was serious enough to be classified as gross negligence and therefore a crime. John’s behaviour was definitely not that of any reasonable person placed under similar circumstances. In fact his behaviour is positively malafide. Therefore, the breach indulged in by John is tantamount to gross negligence.

In Gibbins & Proctor v R, the defendant and his mistress abstained from feeding the child leading to its death due to starvation. The court convicted them for murder holding that the parent’s duty towards a young child is self evident and does not require analysis or authority and that therefore the defendants had the necessary mens rea[5]. John’s behaviour is similar to that of this woman as he hated Zoe.

In R v. Instan, the defendant neither fed her aunt nor did she inform the hospital authorities and eventually her aunt expired. The court’s verdict was that of manslaughter, because it was the defendant’s duty to provide the deceased with an adequate of food in order to maintain life, and that; the death of the deceased had been hastened by the neglect of such duty[6].

Answer 3.

The fault elements of mens rea are intention and recklessness. Intention was defined in

R v Moloney[7]  and R v Woollin[8]. In the former case, the defendant accidentally shot and killed his stepfather and in the latter the defendant in a fit of rage threw his son onto the floor causing his death, since the intention to kill was lacking in both these cases the court returned a verdict of manslaughter.

In Hyam v. DPP[9] the defendant wishing to startle Mrs. Booth inserted a burning newspaper into the latter’s house. This resulted in the death of two children of Mrs. Booth. Since, the defendant knew that such an act could cause death or grievous bodily harm, she was convicted of murder. In R v. Hancock and Shankland[10] the defendants caused the death of their colleague by throwing down a concrete block. The court returned a verdict of manslaughter as the intention to cause death was lacking.

In R v. Walker and Hayles[11] the defendants threw their victim from a balcony, since their intention was to cause death they were convicted of attempted murder.

John knew that Zoe was drowning to death and several bystanders brought this fact to his notice. Since, he did not make any attempt to save Zoe his intention to let Zoe die is clearly established.

Another important factor is recklessness. In R v. Cunningham[12] the defendant broke a gas meter in order to steal the coins it contained. This gas endangered the life of an adjacent house’s resident. The defendant was charged with “maliciously administering a noxious thing so as to endanger life[13].” The court of appeal held that the defendant had been reckless about the harm that could result from his actions and hence he was guilty. In MPC v. Caldwell[14] the defendant set fire to his former place of employment.

The court held his behaviour to be reckless and held him to be guilty of criminal damage with intent to endanger life or recklessness in respect of endangering life by his actions. In R v. Seymour[15] the defendant pushed his mistresses’ car with his truck causing injuries to which she succumbed later. The court held him to be guilty of recklessness and convicted him of manslaughter. Thus, John is guilty of recklessness, because he did not perform his duty of care towards Zoe.

Answer 4.

Gross negligence manslaughter occurs if first, a duty of care exists. A duty of care exists as a result of the requirements of the common law or statute, contractual obligations or acceptance by a person. Under certain circumstances a duty of care is imposed by the law, for instance, the duty of care that parents have towards their children and the duty of care that the police have towards persons arrested by them[16].

However, such a general duty of care does not exist in respect of a person towards society in general. For example, in the absence of a doctor patient relationship, the former cannot be held to be liable for manslaughter. Moreover, a doctor does not have a general duty of care in respect of the general public. In the absence of a law imposed duty of care, the acknowledgement of a duty of care towards the deceased is governed by first, the length and nature of the relation extant between the accused and the deceased.

Second, the acts of the accused that had prevented rescue by any other person. Third, declaration by the accused that they were sufficiently skilled to complete some action with competence[17].

A breach of duty of care is established by taking recourse to the civil law of negligence. The main criterion is to determine whether the commission or omission of an act had entailed a failure on the part of the accused to act like a reasonable person. To establish that there had been a death caused by breach of the duty of care, it is essential not only to prove that the accused had breached a duty of care but also that such a breach had caused the death[18].

In respect of a breach of duty of care that had transpired and where it had been proved that the death was the result of this breach, it becomes essential to determine if the breach could be classified as gross negligence. The essential factor is to determine whether the accused’s behaviour had departed from that anticipated of a reasonable person[19].

John is guilty of manslaughter by gross negligence. The reasons for arriving at such a conclusion are appended below.

If death occurs due to a lack of care then such death is termed as manslaughter, provided such lack of care is of a gross nature. Manslaughter is of three kinds, first inadvertent manslaughter, which requires that, the prosecution to establish a duty and a high degree of lack of care in the accused's actions, and that these actions should have resulted in a serious and obvious risk of death or grievous bodily harm.

Second, unlawful act manslaughter, which requires the prosecution to prove that an unlawful criminal and intentional act had transpired, and that this act was dangerous (inevitably involve the risk of some harm but not necessarily serious harm.

Third, foresight manslaughter in which the accused continues to proceed regardless of the subjective realisation that there is a risk. Such foresight can be accepted as evidence of the intention to kill and constitutes the basis for a murder conviction.[20] However, if the evidence falls short of such proof then a verdict of manslaughter will be returned by the court.[21]

Manslaughter had always been considered to be a crime, however mere negligence was insufficient to establish this crime, accordingly in a medical negligence case, it was held that the carelessness had to go beyond a matter of compensation between subjects and show such disregard for the safety of others as to amount to a crime against the state[22]. This approach was emulated in another case in which death occurred due to negligent driving[23].

The main criterion adopted was one of gross negligence but subsequent to the decision in Caldwell[24] it was assumed that inadvertent manslaughter required an objective approach and that the jury had to be directed in respect of the meaning of reckless as had been described in Lawrence.[25] This approach was more complicated than the gross negligence approach and required the jury to be directed to the fact that the accused who failed to recognize the obvious and serious risk that any reasonable person would have been aware of was liable for manslaughter if that failure led to the victim’s death.

In the case of Adomako[26]  a tube became disconnected during an operation, resulting in the death of the patient. It was established that there was a gross dereliction of care. The Court of Appeal requested the House of Lords to clarify as to whether the gross negligence test set out in Andrews was adequate.[27]

Their Lordships opined that the decision in Bateman[28] and Andrews[29]  was to be the basis for determining the crime of involuntary manslaughter as recklessness in respect of manslaughter had become very difficult to define exactly. Further, they held that this case had introduced the concept of gross negligence to the already existing concepts of intention, foresight and inadvertent recklessness and that it was no longer necessary to give detailed directions in respect of the term reckless.

Answer 5.

The courts have attributed liability to people who watch a person dying, without rendering any assistance. This is because such behaviour is indefensible on moral grounds. Therefore several statutes have enjoined that the actus reus comprises of any act of commission or omission. The current trend in the courts is to employ objective tests in order to determine whether the accused could have acted, without endangering himself, in such manner as to avert injury or death of a victim.

In the case of R v. Dytham[30]  a police constable merely watched as a person was being beaten to death. The court was held to be guilty of wilful misconduct in public office. In another case some police officers arrested an inebriated person with head injuries as he was indulging in aggressive behaviour at the hospital. The court held these policemen to be guilty of manslaughter by gross negligence[31].

In respect of children, parents, legal guardians and spouses have to exercise a duty of care because of the tender age and immaturity of their wards. The moral duty to help a drowning child is converted into a legal obligation if some special relationship exists between the beholder and the victim. In this regard a parent who does nothing to save his child from death or grievous injury is liable. In R v. Miller[32] the defendant went to sleep on a mattress with a lighted cigarette in his hand. On awakening he realized that the mattress was on fire. Nevertheless, he took no measures to extinguish the fire and the result was extensive damage to the premises. The House of Lords held that he was guilty of recklessly damaging the premises.

Their Lordships established in R v. Adomako that the basis of manslaughter was gross negligence and that an accused would be deemed to be guilty of manslaughter if:

a.       The accused was duty bound to care for the victim.

b.      Such duty was not upheld.

c.       The accused had indulged in what could be construed to be grossly negligent conduct.

d.      The result of such conduct had resulted in the demise of the victim[33].

In general, the criminal law has always distinguished between actions and omissions. The duty to act, in the context of criminal liability, usually arises in contracts of employment. For example in R v. Pittwood the railway level crossing gate operator left the gate open resulting in the death of a person and the court held him to be guilty of manslaughter[34].

In R v. Gibbins and Proctor the court opined that parents owed a duty of care towards their children, who were living with them[35].  In R v. Stone and Dobinson Stone who was mentally impaired lived with his incompetent mistress and his mentally retarded son.

They were joined by Stone’s eccentric sister Fanny, who suffered from anorexia nervosa. Over a period of time Fanny decided not to leave her room and as none of the other residents of that household made any effort to check on her condition, her condition gradually deteriorated resulting in her death. They were held to be guilty of manslaughter by the court and in the words of Lord Lane CJ, “Whether Fanny was a lodger or not she was a blood relative of Stone; she was occupying a room in his house, and Dobson had undertaken the duty of looking after her[36].”

John had the necessary mens rea to establish manslaughter as he was fully aware that Zoe was about to die if no help was rendered to her and therefore the criminalization principle of harm is applicable to his conduct.

Bibliography

Andrews v DPP (1937) AC 576.

Gross Negligence Manslaughter and Corporate Manslaughter. Retrieved from

http://www.cps.gov.uk/publications/docs/fs-grossneg.pdf.

Hyam v DPP (1975) AC 55.

Lawrence (1982) AC 510.

Legal Research. (2005) Retrieved December 3, 2006 from http://www.law.ox.ac.uk/opbp/OPBPBosniaLegalResearch06.12.05.pdf

MPC v Caldwell (1982) AC 341.

R v Gibbins & Proctor (1918) 13 Cr App R 134.

R v Instan (1893) 1 QB 450 (CCR).

R v Moloney (1985) 1 All ER 1025.

R v Wollin (1998) 4 All ER 103.

R v Hancock and Shankland (1986) 2 WLR 257.

R v Walker and Hayles (1990) 90 Cr App R 226.

R v Cunningham (1957) 2 QB 396.

R v Seymour (1983) 2 AC 493.

R v Nedrick (1986) 83 Cr. App. R. 267.

R v Bateman (1925) 19 Cr App R 8.

R v Caldwell (1981) 1 All ER 961.

R v Adomako (1994) 3 All ER 79.

R v Dytham (1979) QB 722.

R v Miller (1983) 2 AC 161.

R v Pittwood (1902) 19 TLR 37.

R v Gibbins and Proctor (1918) 13 Cr App R 134.

R v Stone and Dobinson (1977) 2 All ER 341.

Section 24 of the Police and Criminal Evidence Act 1984.

Section 110 of the Serious Organized Crime and Police Act 2005.

Section 23 of the Offences Against the Person Act 1861.

The Criminal Justice (Mode of Trial) (No.2) Bill. Research Paper 00/23 3 March 2000. House of Commons.

[1] Section 24 of the Police and Criminal Evidence Act 1984 as substituted by section 110 of the

Serious Organized Crime and Police Act 2005. [2] The Criminal Justice (Mode of Trial) (No.2) Bill. Research Paper 00/23 3 March 2000. House of Commons. [3] Legal Research. (2005) Retrieved from http://www.law.ox.ac.uk/opbp/OPBPBosniaLegalResearch06.12.05.pdf on December 3, 2006 [4] Ibid. [5] R v Gibbins & Proctor (1918) 13 Cr App R 134 [6] (1893) 1 QB 450 (CCR) [7] (1985) 1 All ER 1025 [8] (1998) 4 All ER 103 [9] (1975) AC 55 [10] (1986) 2 WLR 257 [11] (1990) 90 Cr App R 226 [12] (1957) 2QB 396 [13] Section 23 Offences Against the Person Act 1861 [14] (1982) AC 341 [15] (1983) 2 AC 493 [16] Gross Negligence Manslaughter and Corporate Manslaughter. Retrieved from http://www.cps.gov.uk/publications/docs/fs-grossneg.pdf. [17] Ibid. [18] Ibid. [19] Ibid. [20] R v Nedrick (1986) 83 Cr. App. R. 267 [21] Hyam v. DPP (1975) AC 55 [22] R v. Bateman (1925) 19 Cr App R 8 [23] Andrews v. DPP (1937) AC 576 [24] R v Caldwell [1981] 1 All ER 961 [25] Lawrence [1982] AC 510 [26] R v Adomako (1994) 3 All ER 79 [27] Ibid. [28] R v. Bateman (1925) 19 Cr App R 8 [29] Andrews v. DPP (1937) AC 576 [30] (1979) QB 722 [31] Attorney General's Reference (No 3 of 2003) (2004) EWCA Crim 868 [32] (1983) 2 AC 161.

[33] R v Adomako (1994) 4 All ER 935 [34] R v Pittwood (1902) 19 TLR 37 [35] R v Gibbins and Proctor (1918) 13 Cr App R 134 [36] R v Stone and Dobinson (1977) 2 All ER 341