Homicide Flashcards

Question

2.4 Substantial impairment of Defendant's ability

Answer 1

Thirdly, under s 2(1)(b), the abnormality of mental functioning must have substantially impaired the defendant’s ability to do one of the things stated within s 2(1A). These three things are: to understand the nature of D’s conduct, to form a rational judgment and to exercise self-control.

Answer 2

The meaning of the word ‘substantial’ has been considered by the Supreme Court. It held that ‘substantial’ should have its ordinary meaning and therefore there is generally no need to direct the jury on the meaning. However, if the court felt it was necessary to provide further guidance then the judge should explain that ‘substantial’ means something greater than ‘more than merely trivial’.

Answer 3

Law Commission, Report No 304 provided the following example. A boy aged 10 who has been left to play very violent video games for hours on end for much of his life, loses his temper and kills another child when the child attempts to take a game from him. When interviewed, he shows no real understanding that, when a person is killed they cannot simply be later revived, as happens in the games he has been continually playing.

Answer 4

A woman suffering from post-traumatic stress disorder, following violent abuse suffered at her husband’s hands, comes to believe that only burning her husband to death will rid the world of his sins. A mentally sub-normal boy believes that he must follow his older brother’s instructions, even when they involve taking part in a killing. He says: ‘I wouldn’t dream of disobeying my brother and he would never tell me to do something if it was really wrong’. A depressed man who has been caring for many years for a terminally ill spouse kills her, at her request. He found it progressively more difficult to stop her repeated requests dominating his thoughts.

Answer 5

Law Commission, Report No 304 provided the following example. A man says that sometimes the devil takes control of him and implants in him a desire to kill, a desire that must be acted on before the devil will go away. The question of whether the defendant’s ability is substantially impaired is one of fact and is for the jury to decide, however, guidance can be taken from the above examples. The above definitions tend to allow the jury a wide discretion and much will depend on the extent to which the jury feel the defendant is morally culpable.

Answer 6

Finally, under s 2(1)(c), the abnormality of mental functioning must provide an explanation for the defendant’s acts and omissions in doing or being a party to the killing. The defendant’s act will provide an explanation for D’s conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct (s 2(1B)).

Answer 7

Therefore, a causal link between the abnormality of mental functioning arising from a recognised medical condition and the killing must be established. It is clear from the wording of this section that it need not be the only cause. The defence can still operate, even if the jury consider that alcohol may have played a part (Dietschmann [2003] 1 AC 1209). Another section will cover this in more detail.

Answer 8

Facts: In this case Brennan had been convicted of murder despite a psychiatrist’s evidence that all the elements of the test had been satisfied. Her evidence had not been contradicted. Held: Davies LJ, in overturning the conviction, held that a judge should withdraw the murder charge from the jury when either the expert medical evidence is uncontested or when there is no other evidence which is capable of rebutting the medical evidence. It was held to be legitimate and helpful for expert psychiatrists to give evidence. All four of the elements of the defence are concerned with psychiatric matters.

Answer 9

- D must have an abnormality of mental functioning (s 2(1)), meaning ‘state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal’ (R v Byrne).

Answer 10

Once the D has fulfilled the actus reus and mens rea of murder, D’s conviction can be reduced to voluntary manslaughter (s 2(3)), if D proves, on the balance of probabilities, that they were acting under diminished responsibility (s 2(2)). Medical evidence will be helpful for all elements of the defence (R v Brennan).

Answer 11

◦ Arise from a recognised medical condition (s 2(1)(a)) which can be diagnosed or not at the time of the killing. D must not be acting out of hatred, jealousy or bad temper. ◦ Have substantially impaired (something greater than ‘more than merely trivial’, R v Golds) the defendant’s ability (s 2(1)(b)) to understand the nature of D’s conduct, form a rational judgment and/or exercise self-control (s 2(1A)). ◦ Provide an explanation for D’s conduct (s 2(1)(c)), even if it is not the only cause (s 2(1B) and R v Dietschmann).

Answer 12

* Diminished responsibility is not available for attempted murder (R v Campbell).

Answer 13

The Law Commission published a report in 2006 proposing a wholesale restructuring of the law of homicide. The government’s response was the Coroners and Justice Act 2009 (CJA). This made significant changes to the special defences to murder. The defence of provocation was abolished and was replaced with ‘loss of control’.

Answer 14

Loss of control is a partial defence to murder. The burden of proof rests with the prosecution once the issue is raised (s 54(5) CJA). The prosecution need to prove that only one of the components is absent for the defence to fail, this is clear from the statute and was confirmed in the first case on the new defence (R v Clinton, Parker and Evans [2012] EWCA Crim 2).

Answer 15

It will be a matter for the judge to decide whether the defence can be put before the jury (s 54(6)). The power of the judge to remove the issue of loss of control from the jury may prove to be a significant change from the old law of provocation (R v Jewell [2014] EWCA Crim 414).

Answer 16

If this defence is successful, the conviction is reduced from murder to voluntary manslaughter, which means that the defendant will avoid the mandatory life sentence (s 54(7)). As some aspects of the defence are yet to be defined and tested by the courts, you will be expected to rely on your statutory interpretation and analysis skills.

Answer 17

Section 54(1) Coroners and Justice Act 2009 provides: Where a person (‘D’) kills or is a party to the killing of another (‘V’), D is not to be convicted of murder if— (a) D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control, (b) the loss of self-control had a qualifying trigger, and (c) a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.

Answer 18

Firstly, under s 54(1)(a), the defendant’s act or omission in killing, must have resulted from a loss of self-control.

Answer 19

The Court of Appeal made it clear that this defence had replaced the old law on provocation and that application of this defence should be made with reference to the Coroners and Justice Act 2009. The judges were of the opinion that the old common law is now largely irrelevant. It seems that the use of old case law is now very limited. It can be referred to, but any use must be justified. The element of loss of self-control can be assessed by looking at its literal meaning. As under the old law, whether the defendant actually lost control is a question for the jury, taking into account all of the evidence.

Answer 20

Loss of self-control was a necessary part of the old law and reference can be made to the legal principle from this case, which stated that, although there need not be a complete loss of control so that defendants do not know what they are doing, defendants must be unable to restrain themselves. A mere loss of temper would not be enough.

Answer 21

The defence will be lost should it be established that the defendant was acting out of a ‘considered desire for revenge’ (s 54(4)). The judges in R v Clinton directed that this should be considered within this aspect of the defence.

Answer 22

A case on the old law, where it was noted that the jury in deciding whether there was a loss of self-control should consider the length of any delay between the provocation and the killing and it was noted that the longer the delay, the less likely it was that the defendant had lost self-control. This observation would apply to the loss of control defence.

Answer 23

Secondly, under s 54(1)(b), there must be a qualifying trigger. The ‘qualifying trigger’ that must be identified as the cause of the loss of control is defined in s55. Lord Judge in R v Clinton, made it clear that it would be more difficult to raise the loss of control defence than the old defence:

Answer 24

In section 55(3) it is not enough that the defendant is fearful of violence. He must fear serious violence. In subsection (4)(a) the circumstances must not merely be grave, but extremely so.

Answer 25

In subsection (4)(b) it is not enough that the defendant has been caused by the circumstances to feel a sense of grievance. It must arise from a justifiable sense not merely that he has been wronged, but that he has been seriously wronged. By contrast with the former law of provocation, these provisions, as Mr Michael Birnbaum QC, on behalf of Clinton submitted, have raised the bar.

Answer 26

(1) This section applies for the purposes of section 54. (2) A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies. (3) This subsection applies if D’s loss of self-control was attributable to D’s fear of serious violence from V against D or another identified person. (4) This subsection applies if D’s loss of self-control was attributable to a thing or things done or said (or both) which- (a) constituted circumstances of an extremely grave character, and (b) caused D to have a justifiable sense of being seriously wronged

Answer 27

(5) This subsection applies if D’s loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4). (6) In determining whether a loss of self-control had a qualifying trigger— (a) D’s fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence; (b) a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence […]

Answer 28

The first trigger (s 55(3)) ‘attributes’ the loss of self-control to the defendant’s fear of serious violence. There is no specific direction on the way in which the defendant should fear serious violence; this would suggest that this defence will have a broader application than it previously did.

Answer 29

In Dawes, Hatter and Bowyer [2013] EWCA Crim 322, the Court of Appeal directed that, despite the fact that there may be factual overlaps, loss of control and self-defence are two distinct defences. The court highlighted some important differences: for example, self-defence requires only that the defendant fears violence, whereas the s 55(3) requires the defendant to fear serious violence.

Answer 30

It seems that in part, this ‘trigger’ is designed to cover a situation where a jury might conclude that the defendant was justified in using defensive force, but that the level of force used was unreasonable, thus preventing the defence of self-defence from operating. D cannot rely on the fear trigger if D incited it as an excuse to use violence (s 55(6)(a)). This will be covered in more detail in another element.

Answer 31

Mr Martin, having suffered a number of burglaries at his isolated farmhouse in Norfolk, decided to take matters into his own hands. He had placed various security measures/booby traps around his property and then shot at two suspected burglars, who had entered his farmhouse during the night, with his pump-action shot gun. One of the victims (16-year-old Fred Barras) died. Mr Martin pleaded self-defence at his trial, but was unsuccessful due to the excessive force used. Defence may now be available under loss of control using a fear of serious violence as a qualifying trigger.

Answer 32

The second qualifying trigger, informally referred to as the anger trigger, is a more nebulous concept and has three parts to it: * Things said and/or done; * That constitute circumstances of an extremely grave nature; and * That caused D to have a justifiable sense of being seriously wronged. None of these elements are defined in the CJA 2009. Although we have clear direction that both the ss 55(4)(a) and (b) require objective evaluation, confirmed in Clinton and Dawes.

Answer 33

Limitations D cannot rely on the anger trigger if: * D incited it as an excuse to use violence (s 55(6)(b)); or * The thing said/done constituted sexual infidelity (s 55(6)(c)). This will be covered in more detail in another section.

Answer 34

This was a requirement under the old law, and confirms that there must be something actually said or done. Therefore, circumstances on their own will not be enough.

Answer 35

Lord Steyn made it clear, by way of example, that if a person was driving in slow-moving traffic caused by snow and lost self-control, they would not be able to rely on this defence.

Answer 36

The phrase, ‘constitutes circumstances of an extremely grave nature’ is not defined in the CJA. What we do know is that the presence of this phrase must be determined objectively, and these circumstances should not be established easily

Answer 37

Jonathan Herring says he believes: […] the circumstances facing the D must have been unusual, and not part of the normal trials and disappointments of life. The circumstances could not be events which ordinary people would regard as trivial. So being jostled in a supermarket, having someone queue jump in front of you, or being sworn at would not amount, in themselves, to grave circumstances.

Answer 38

Reference has been made to the explanatory notes for some guidance on the meaning of the phrase, ‘caused D to have a justifiable sense of being seriously wronged’. Although the phrase is not defined, the notes do emphasise that the issue of whether this sense of being seriously wronged is justifiable is an objective question. This has since been confirmed in R v Clinton.

Answer 39

Similarly, the word “justifiable” in s 55(4)(b) of the Coroners and Justice Act 2009 means that the defendant’s sense of being seriously wronged must be one that accords with contemporary society’s norms and values. In other words, it must be shown that a normal person in contemporary Britain would have felt seriously wronged in the same situation.

Answer 40

Additionally, he may have in fact felt seriously wronged by his daughter’s conduct, but this will not qualify as an ‘objective’ trigger for his loss of control. The fact he ‘personally’ felt wronged and ‘subjectively’ viewed the circumstances as being of an extremely grave character is irrelevant as far as the new defence is concerned.

Answer 41

A normal person communally situated in contemporary Britain would not consider discovering his adult daughter dating someone of a different race or religious faith as constituting extremely grave circumstances. A normal relationship between a consenting adult couple does not constitute extremely grave circumstances, and a normal parent in contemporary Britain would not be unjustifiably wronged in an objective sense by having to deal with his or her adult daughter’s decision to choose her own partner.

Answer 42

Compare this with the situation where a parent arrives at a kindergarten to pick up her child and finds a paedophile teacher molesting her child. Clearly, the latter would constitute objective provocation when measured against contemporary standards in Britain. A normal parent communally situated in contemporary society would have a justifiable sense of being seriously wronged by such conduct.

Answer 43

It would be enough if it were ‘said’ to him or her that there is a teacher in the building who has just been caught molesting your toddler. For example, if the mother uses her smartphone to inform her husband, who is waiting outside the kindergarten, that she has just found a paedophile teacher molesting their child, the husband could raise the defence if what has been ‘said’ to him (ie ‘I found the teacher molesting our child’) causes him to lose control and run into the kindergarten and kill the paedophile teacher. The husband is provoked by the paedophile’s act, even though he did not witness it. Second-hand word of such an act would have the same objective provocative effect as witnessing it.

Answer 44

Finally, under, s 54(1)(c): a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.

Answer 45

In subsection (1)(c) the reference to “the circumstances of D” is a reference to all of D’s circumstances other than those whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance or self-restraint

Answer 46

(a) The gravity of the qualifying trigger to a person in the defendant’s circumstances; then (b) Whether as a result of that trigger a normal person might have done what the defendant did or something similar.

Answer 47

To taunt a person because of his race, his physical infirmities or some shameful incident in his past may well be considered by the jury to be more offensive to the person addressed, however equable his temperament, if the facts on which the taunt is founded are true than it would be if they were not. The test for determining the proportionality of D’s reaction remains a wholly-objective one.

Answer 48

* Bad temper * Intoxication * Extreme sensitivity * Post-traumatic stress disorder (R v Rejmankski) * Personality disorder (R v Rejmankski)

Answer 49

* Category one: Circumstances and characteristics will be taken into account under s 54(1)(c); * Category two: Circumstances and characteristics which will be excluded by s 54(3); and * Category three: Which consists of circumstances or characteristics which will be considered in assessing the magnitude of the qualifying trigger, but ignored in assessing how much tolerance and self-restraint the normal man would have. See the R v Rejmanski case below.

Answer 50

Pointed out that as the statute requires the jury to take into account all the circumstances, they could find themselves in a situation where they are expected to ignore sexual infidelity when considering the qualifying trigger but could take it into account here. If there is evidence that the jury feel is relevant to the overall evaluation, the courts have confirmed that the jury can take sexual infidelity into consideration, regardless of whether it goes towards the gravity of the taunt, provided it does not only go towards the capacity to exercise self-restraint.

Answer 51

If a mental disorder has a relevance to the defendant’s conduct other than a bearing on is general capacity for tolerance or self-restraint, it is not excluded by subs. (3), and the jury will be entitled to take it into account as one of the defendant’s circumstances under s54(1)(c).

Answer 52

However, it is necessary to identify with some care how the mental disorder is said to be relevant as one of the defendant’s circumstances. It must not be relied upon to undermine the principle that the conduct of the defendant is to be judged against “normal” standards, rather than the abnormal standard of an individual defendant […]

Answer 53

A case where the victim had taunted the defendant about his failed suicide attempts, the Court of Appeal approved the trial judge, Holroyde J’s direction: If and insofar as you conclude a personality disorder reduced his general capacity for tolerance and self-restraint, that would not be a relevant circumstance when you are considering the defence of loss of control.

Answer 54

If you thought that CW suffered from a personality disorder which made him unusually likely to become angry and aggressive at the slightest provocation, that would of course be relevant to diminished responsibility but it could not assist him in relation to loss of control

Answer 55

But if you thought that a personality disorder had caused him to attempt suicide, then you would be entitled to take into account as one of his circumstances the effect on him of being taunted that he should have killed himself.

Answer 56

Once the D has fulfilled the actus reus and mens rea of murder, D’s conviction can be reduced to voluntary manslaughter (s 54(7)), if the prosecution fail to disprove, beyond reasonable doubt, that the defendant was acting under a loss of control (s 54(5)).

Answer 57

* D lost self-control. This does not have to be complete but D must be unable to exercise selfrestraint (R v Richens). * D acted as a result of a qualifying trigger:

Answer 58

- Fear trigger: Defendant fears serious violence; and/or - Anger trigger: ◦ Things said and/or done; ◦ That constitute circumstances of an extremely grave nature; and ◦ That causes D a justifiable sense of being seriously wronged. - A normal person might have done the same or a similar thing. The jury will have to assess: ◦ The gravity of the qualifying trigger to a person in the defendant’s circumstances; then ◦ Whether as a result of that trigger a normal person might have done what the defendant did or something similar.

Answer 59

Aside from the fact that loss of control can only be used as a special defence to murder, there are some clear limitations on the use of the qualifying triggers. The defence of loss of control cannot be used: (a) In an act of ‘considered desire for revenge’; (b) As an excuse to use violence; (c) If the thing said/done constituted sexual infidelity; (d) If the defendant is charged with attempted murder.

Answer 60

This defence cannot be used if it stems from an act of revenge (s 54(4)). This would cover cases where there is clear evidence of planning. The word ‘considered’ is important here, as it implies the defendant has had time to think about the qualifying trigger. It is clear that if the defendant is acting out of planned revenge, D will not have lost self-control. The judges in R v Clinton recognised this when they made it clear that s 54(4) must be considered within the first requirement, a loss of self-control.

Answer 61

The defendant cannot create the qualifying trigger as an excuse to use violence. Further narrowing the defence, is indicated by s 55(6): (6) In determining whether a loss of self-control had a qualifying trigger— (a) D’s fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence; (b) a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence.

Answer 62

Sections 55(6)(a) and (b) were considered by the Court of Appeal in R v Clinton. Lord Judge suggested that someone who is out to incite violence may well not ‘fear’ violence, but actively welcome it, and equally such a person would not feel a sense of being seriously wronged

Answer 63

Suggested that someone who is out to incite violence may well not ‘fear’ violence, but actively welcome it, and equally such a person would not feel a sense of being seriously wronged. This suggests that in such circumstances, the defence will always be difficult to run

Answer 64

Judge goes on to point out that ss 55(6)(a) and (b) only apply where the defendant’s actions were done with a view to providing an excuse for violence; it is not enough that the defendant ‘started it’ to invoke s 55(6). D must have had the intent from the outset to provoke the reaction that then led to the killing. It is therefore only in rare cases that these subsections will apply.

Answer 65

The defence cannot be relied on if the thing said/done constituted sexual infidelity. This subsection was brought in to prevent defendants from using sexual infidelity as an excuse for killing. Section 55(6) states: In determining whether a loss of self-control had a qualifying trigger— […] (c) the fact that a thing done or said constituted sexual infidelity is to be disregarded.

Answer 66

* If sexual infidelity is in the background, but is not the true trigger or the sole trigger for the loss of control. * Where there has not in fact been any sexual infidelity because V, or someone else, has lied or made it up to taunt D. * If the sexual infidelity has not taken place yet, eg V is about to leave D for someone else, but has not yet been sexually intimate with them.

Answer 67

Lord Judge quoted from Hansard and chose to interpret the intention of those proposing the clause in the bill as being to exclude the defence only when sexual infidelity is the sole qualifying trigger. He said that if there are other things said or done or if there is also a fear of serious violence, then sexual infidelity should be considered

Answer 68

However, to seek to compartmentalise sexual infidelity and exclude it when it is integral to the facts as a whole is not only much more difficult, but is unrealistic and carries with it the potential for injustice. We do not see how any sensible evaluation of the gravity of the circumstances or their impact on the defendant could be made if the jury, having, in accordance with the legislation, heard the evidence, were then to be directed to excise from their evaluation of the qualifying trigger the matters said to constitute sexual infidelity, and to put them into distinct compartments to be disregarded.

Answer 69

In our judgment, where sexual infidelity is integral to and forms an essential part of the context in which to make a just evaluation whether a qualifying trigger properly falls within the ambit of subsections 55(3) and 55(4), the prohibition in section 55(6)(c) does not operate to exclude it.

Answer 70

There will be other factors which could make up a qualifying trigger such as the threat that the defendant will lose the children, as was the case in R v Clinton, or that they will lose their home. It will then be possible to include sexual infidelity within the argument that a qualifying trigger exists, to ensure that the jury has the ‘whole story’.

Answer 71

The CJA is silent on this point. However, provocation was not available as a defence to a charge of attempted murder (R v Campbell [1997] Crim LR 495). Smith, Hogan and Ormerod’s Criminal Law states that loss of control ‘is not a defence to a charge of attempted murder or any other charge other than murder’.

Answer 72

The defence of loss of control cannot be used: * In an act of ‘considered desire for revenge’ (s 54(4)). * As an excuse to use violence (ss 55(6)(a) and (b)). It is not enough that the defendant ‘started it’. * If the thing said/done constituted sexual infidelity (s 55(6)(c)). However, it is likely that in most cases where sexual infidelity has caused the defendant to lose their self-control, there will be other factors which could make up a qualifying trigger. It will then be possible to include sexual infidelity within the argument that a qualifying trigger exists, to ensure that the jury has the ‘whole story’. * For attempted murder, see R v Campbell and Smith, Hogan and Ormerod’s Criminal Law.

Answer 73

You will come across intoxication in two different forms in this element: * As a way to negate the mens rea of murder; or * As an influencing factor on the special defences of loss of control and diminished responsibility. If D is intoxicated loss of control and/or diminished responsibility can still be potentially argued as partial defences to murder, reducing the conviction to voluntary manslaughter if successful. Intoxication can mean with drugs or alcohol.

Answer 74

A defendant can use evidence of their intoxication to show that they did not form the necessary mens rea for murder - that the defendant did not form the mens rea of intention to kill or cause grievous bodily harm to the victim. Remember, the prosecution need to prove, beyond reasonable doubt, that the defendant has committed the actus reus and the mens rea of murder. If, due to intoxication, the defendant did not form the mens rea of murder, then the defendant will be entitled to an acquittal.

Answer 75

The interaction between intoxication and the defence of loss of control was explained in this case of where Lord Judge stated: It does not mean that the defendant who has been drinking is deprived of any possible loss of control defence: it simply means, as the judge explained, that the loss of control defence must be approached without reference to the defendant’s voluntary intoxication. If a sober individual in the defendant’s circumstances, with normal levels of tolerance and self-restraint might have behaved in the same way as the defendant confronted by the relevant qualifying trigger, he would not be deprived of the loss of control defence just because he was not sober.

Answer 76

This is a case under the old law on provocation. The defendant was addicted to glue and had been taunted about his glue-sniffing habit and how it made him a hopeless character, incapable of employment. The fact that he was addicted to glue was relevant in assessing the gravity of the provocation, but the jury had to consider whether a reasonable man, who was not high on glue, would have done what he did

Answer 77

(a) Defendant is not precluded from using the defence just because he is drunk; (b) His intoxication will be ignored in accordance with the CJA 2009, s 54(3) (as a circumstance whose only relevance to D’s conduct is that it bears on D’s general capacity for tolerance or self-restraint), if it has no connection to the things said or done which make up the qualifying trigger; and (c) If there is a connection between the things said or done which make up the qualifying trigger eg when the defendant is taunted about his intoxication, then the jury can take that intoxication into account in assessing the gravity of the qualifying trigger.

Answer 78

The impact of intoxication on the defence of diminished responsibility is an issue with which the courts have long struggled.

Answer 79

The courts have taken two approaches, depending on whether the intoxication is: * Independent of the abnormality- the defendant has an abnormality of mental functioning and is voluntarily intoxicated; or * As a result of alcohol dependency syndrome (ADS).

Answer 80

A defendant might, at the time of the killing suffer from both an abnormality of mental functioning and from the effect of alcohol taken before the killing. The leading authority on this situation before the amendments was R v Dietschmann [2003] 1 AC 1209, where the House of Lords suggested that it would be an impossible task for the jury simply to ignore the effect of the alcohol and decide whether the defendant, sober, would still have killed as a result of the abnormality

Answer 81

Instead, the jury must first consider the effect of the matters other than the alcohol and determine whether they amounted to such abnormality of mental functioning as might have substantially impaired the defendant’s ability to do one of the things in the 2(1A) HA. From that case, the jury should consider: If the defendant was intoxicated at the time of the killing, the jury should then ask themselves: has the defendant satisfied you that, despite the drink, (1) he was suffering from mental abnormality; and (2) his mental abnormality substantially impaired his mental responsibility for his fatal acts?

Answer 82

The Court of Appeal in considering the amended defence of diminished responsibility said that it was bound by the case of R v Dietschmann, so it is clear that this case remains the authority to be applied.

Answer 83

Hughes LJ (as he then was) said: It is enough to say that it is quite clear that the reformulation of the statutory conditions for diminished responsibility was not intended to reverse the well-established rule that voluntary acute intoxication is not capable of being relied upon to found diminished responsibility. That remains the law. The presence of a “recognised medical condition” is a necessary, but not always a sufficient, condition to raise the issue of diminished responsibility.

Answer 84

We will consider a series of cases which make up the courts approach to D’s seeking to rely on diminished responsibility with alcohol dependency syndrome (ADS).

Answer 85

The Court of Appeal acknowledged that it was somewhat artificial to draw a distinction where that defendant has ADS between purely involuntary drinking and drinking where the defendant has some ability to stop.

Answer 86

Instead, the jury must decide whether the ADS was a significant factor in leading the defendant to consume the alcohol, even if there was an element of voluntary choice either to start drinking or not to stop at some point. If they decide that it was a significant factor, they can conclude that the defendant’s responsibility was impaired as a result of the abnormality of mental functioning.

Answer 87

First, they pointed out that the jury must be satisfied that there was an abnormality of mind (which would now be an abnormality of mental functioning). Evidence of ADS may well assist the jury here. However, it would, depending on the evidence, be open to them to conclude that, notwithstanding the existence of the condition, at the time of the killing, the defendant was not suffering from an abnormality of mental functioning.

Answer 88

Second, if the jury are satisfied that the defendant was suffering from an abnormality, they then need to be satisfied that this arises from a recognised medical condition. If there is clear evidence of ADS, then this requirement is likely to be satisfied. Any attempt to rely on voluntary and temporary drunkenness, even when based on habitual heavy binge drinking, will not be sufficient.

Answer 89

Third, under the old law, the Court of Appeal directed that the jury must consider whether the ADS substantially impaired the defendant’s mental responsibility. The Court of Appeal suggested a number of factors that may assist the jury in deciding this: (a) The extent and seriousness of the defendant’s dependency; (b) The extent to which his ability to control his drinking was reduced; (c) Whether he was capable of abstinence and if so; (d) For how long; and (e) Whether he was choosing for some particular reason (such as a birthday) to decide to get drunk or to drink more than usual.

Answer 90

The approach was approved for the amended law by the Court of Appeal in this case. Hallett LJ: [W]e see no reason to depart from the approach in R v Stewart. Coupled with the provisions of section 2(1) of the Homicide Act 1957(as substituted), it provides a clear and sensible approach for directing the jury. The approach is neither binary nor simplistic but is flexible enough to encompass a wide variety of factual circumstances in a manner that is fair to all. It is suggested that the same considerations will be made when determining whether the defendant is able to do one of the things (s 2(1A) HA).

Answer 91

Murder * Actus reus - Unlawful - Killing - Human being - Queen’s peace * Mens rea: Even though intoxicated, did D form the mens rea of intention to kill or intention to cause grievous bodily harm? A drunken intent is still intent (Kingston)

Answer 92

Did D lose self-control? * Did D act due to the fear or anger qualifying trigger? D’s drug or alcohol addition can be taken into account in assessing the magnitude of the qualifying anger trigger if D was taunted about the addiction. * Normal person test- an intoxicated person is not precluded from using the defence. If D is addicted to drugs or alcohol this will be a characteristic given to the normal person but the normal person will still have normal levels of tolerance and self-restraint and be sober (Asmelash).

Answer 93

Voluntary intoxication is not, on its own, capable of being relied upon to found the defence of diminished responsibility (Dowds). If the defendant has an abnormality of mental functioning (AMF) and is voluntarily intoxicated (Dietschmann).

Answer 94

* D must have an AMF. * AMF must arise from a recognised medical condition. * AMF must have substantially impaired the defendant’s ability to do one of the things in s2(1A). * AMF must provide an explanation for D’s conduct, even if it is not the only cause - alcohol can be another reason.

Answer 95

* D must have an AMF: At the time of the killing due to ADS. Factors to be taken into account include the extent and severity of the ADS. * AMF must arise from a recognised medical condition: The alcohol dependency syndrome. * AMF must have substantially impaired the defendant’s ability to do one of the things in s 2(1A). * AMF must provide an explanation for D’s conduct, even if it is not the only cause (s 2(1B)).

Answer 96

Involuntary manslaughter includes all varieties of unlawful homicide other than murder. It is distinguished from murder by the lack of ‘malice aforethought’. In Andrews v DPP [1937] AC 576, Lord Atkin at 581, alluded to the difficulties of defining an offence (or offences) which cover a wide range of circumstances

Answer 97

Of all crimes manslaughter appears to afford most difficulties of definition, for it concerns homicide in so many and so varying conditions […] the law […] recognises murder on one hand based mainly, though not exclusively, on an intention to kill, and manslaughter on the other hand, based mainly, though not exclusively, on the absence of intent to kill, but with the presence of an element of ‘unlawfulness’ which is the elusive factor

Answer 98

Unlawful act (or constructive) manslaughter.

Answer 99

The modern definition of unlawful act manslaughter arises from this case. The defendants had pushed a concrete paving slab onto an oncoming train, killing the guard. The court stated that to be guilty of the offence the prosecution must prove that: (a) The defendants intentionally (voluntarily) did an act; (b) The act was unlawful; (c) The unlawful act was dangerous; and (d) The unlawful act caused the death of the victim.

Answer 100

The accused must intentionally, ie voluntarily, have carried out an act, which results in the death of a person. This refers to intention with regard to the doing of the act, not to the consequences which flow from it.

Answer 101

There are three aspects to the defendant’s act being unlawful. It must be: * A criminal act; * An intrinsically unlawful act; and * An act rather than an omission.

Answer 102

Key case: R v Franklin (1883) 15 Cox CC 163 Initially, it was accepted that the unlawful act could be civil or criminal. However, since this decision it has been settled law that the unlawful act must be criminal. The mere fact of a civil wrong committed by one person against another ought not to be used as an incident which is a necessary step in a criminal case.

Answer 103

The criminal act must be independent of the fact that it has caused death. Both the actus reus and mens rea of the criminal act must be proven. The defendant pointed a revolver at the victim as a practical joke. Both parties believed that there was no risk of the revolver firing a bullet. Unfortunately, a bullet was fired and the victim was killed. Lamb was convicted of manslaughter.

Answer 104

The Court of Appeal allowed the appeal against conviction on the basis that there had not been an unlawful act. The defendant had no intention of committing an assault (at that time, intention was the only mens rea for assault) and therefore all elements of the offence had not been proven.

Answer 105

The defendant was the landlord of a pub. He believed the deceased was about to hit him and therefore the defendant physically removed him from the premises. The deceased fell down some steps and suffered a head injury from which he died. The Court of Appeal held that if the defendant was using reasonable force in acting in self-defence or to prevent a crime, there would be no unlawful assault and accordingly the defendant’s conviction for unlawful act manslaughter was quashed. The unlawful act need not be serious and can simply be a common assault. Typically, the unlawful act will be an offence against the person, but it can also be any offence eg theft or criminal damage.

Answer 106

The unlawful act cannot be based on a lawful act, which becomes unlawful only because of the negligent or reckless manner in which it is performed eg driving.

Answer 107

The principle that the act must be intrinsically unlawful came from this case. Lord Atkin stated: There is an obvious difference in the law of manslaughter between doing an unlawful act and doing a lawful act with a degree of carelessness which the Legislature makes criminal. If it were otherwise a man who killed another while driving without due care and attention would ex necessitate commit manslaughter.

Answer 108

A person cannot be guilty of unlawful act manslaughter by an omission. A failure to do something while under a duty to do it would correctly be charged as gross negligence manslaughter.

Answer 109

The Court of Appeal quashed the defendant’s manslaughter conviction, which had resulted from his criminal omission to look after his nine-week-old daughter. Phillimore LJ stated: If I strike a child in a manner likely to cause harm it is right that if the child dies I may be charged with manslaughter. If, however, I omit to do something with the result that it suffers injury to its health which results in its death, we think that a charge of manslaughter should not be an inevitable consequence, even if the omission is deliberate

Answer 110

Edmund Davies J stated that: […] the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm.

Answer 111

Whether the act is dangerous is an objective test and depends not on the accused’s appreciation of the likely harm, but on what the sober and reasonable person would appreciate. This was affirmed in DPP v Newbury.

Answer 112

The Court of Appeal said that the type of harm likely to result from the unlawful act must be physical and not emotional harm. However, Watkins LJ said: […] there seems to us to be no sensible reason why shock produced by fright should not come within the definition of harm in the context […]. Shock can produce devastating and lasting effects, for instance upon the nervous system. That is surely harm.

Answer 113

The Court of Appeal said that the type of harm a reasonable person would have foreseen does not have to be that actually caused.

Answer 114

The dangerousness of the act is judged from the viewpoint of a sober and reasonable person. The reasonable person will have knowledge of the circumstances that they would have had if they had been in the accused’s shoes at the time of the offence.

Answer 115

The defendant and accomplices, wearing masks and armed with an imitation gun and a pickaxe handle, robbed a petrol station. The cashier suffered from a heart condition and died shortly after the robbery. The trial judge had directed the jury that the reasonable person would know of the victim’s bad heart. This was held to be a misdirection and their appeals were allowed on the basis that a sober and reasonable person present at the scene of the crime would have known the robbery could cause fear but could not have known of the heart condition

Answer 116

This test can only be undertaken upon the basis of the knowledge gained by a sober and reasonable man as though he were present at the scene of and watched the unlawful act being performed […]. In other words, he has the same knowledge as the man attempting to rob and no more. The Court of Appeal overturned the conviction because the jury had been misdirected. It is possible that a properly directed jury could have found what the defendants did to be dangerous.

Answer 117

Facts: In Watson, the defendants broke into the house of an elderly and frail man. The elderly man confronted the defendants and died of a heart attack shortly after the burglary. The defendants appealed against their conviction for manslaughter on the basis that when they entered the house they did not know that the elderly man was present and consequently the reasonable person would not know this. As a result, their act of burglary was not dangerous.

Answer 118

Dr West, who was called on behalf of the prosecution, had performed the autopsy. He was sure that the burglary was the cause of death. He described for the benefit of the jury how excitement causes the production of adrenalin making the heart beat faster. The heart therefore needs more blood and oxygen, but is unable to obtain it if there is a chronic heart disease, as there was here, with the result that the arteries leading to the heart are substantially narrowed. The heart then begins to beat irregularly, it eventually stops beating and thus death ensues

Answer 119

The Court of Appeal stated that a reasonable person in the defendant’s shoes would have realised the act was dangerous once they became aware of the particular circumstances. It did not matter that the defendants did not know this information (frail, elderly man) when they first entered the house. The unlawful act comprised the whole of the burglarious intrusion during which time they were gathering knowledge and information about the victim.

Answer 120

Hence, following this rationale in Watson, the action of burglary became dangerous once they realised the elderly man was in the house. A reasonable person would consider that there was the risk of some harm being caused to an elderly and frail man.

Answer 121

The defendant kept a mixture of live and blank cartridges for his gun in his overall pockets. He picked up his gun and a handful of cartridges and went out of his house to confront the victim. He fired at the victim and killed him. Ball claimed that he had mistakenly thought he had put a blank cartridge in the gun. The court held that the reasonable person would have been aware of the difference in weight and would not have made that mistake. Therefore the act was dangerous.

Answer 122

In R v Ball the reasonable person was given knowledge they would have gained from being in the defendant’s shoes a while before the unlawful act. The reasonable person will therefore have any special knowledge which the defendant has. This has now been confirmed by the Court of Appeal in R v Farnon [2015] EWCA Crim 351 at pp 12 and 22.

Answer 123

We could summarise the legal principles from the cases on the act being dangerous as follows: * The sober and reasonable person knows everything they would have known if they had been in the defendant’s shoes at the time of the offence. * The sober and reasonable person has any special knowledge that the defendant has or ought to have known. * Being reasonable, they do not make any unreasonable mistakes made by the defendant.

Answer 124

Normal rules of causation apply (Chapter 1). The act must have both factually and legally caused the death of the victim. The issue of causation is the last stage in the four-part test for unlawful act manslaughter.

Answer 125

The courts have faced particular difficulties in applying the rules relating to unlawful act manslaughter to deaths arising from the supply, by the defendant to the victim, of controlled drugs, such as heroin, cocaine, etc. In order to understand the rules relating to this issue, it is helpful to distinguish between two situations.

Answer 126

(a) Directly administers the drug to V, for example by taking a syringe and injecting V with it; and (b) Merely supplies V with the drugs, or assists V, such as by mixing a particular ‘cocktail’ of drugs, or filling the syringe before passing it on to V, who then takes the drugs themselves.

Answer 127

Previously, the courts, through some ingenious mental gymnastics, successfully managed to bring cases falling under (b) into the ambit of unlawful act manslaughter. The confusion in law that these efforts caused has been resolved to a large extent by the case of R v Kennedy [2007] 3 WLR 612, discussed on the pages which follow.

Answer 128

The deceased asked Cato to inject him with heroin. Cato obliged and the victim died as a result. Cato was convicted of manslaughter. He appealed on the basis that there had been no unlawful act as the victim had consented. The Court of Appeal upheld Cato’s conviction for unlawful act manslaughter, holding that, by injecting the deceased with heroin, Cato had acted unlawfully by administering a noxious thing contrary to s 23 Offences Against the Person Act 1861 (OAPA), and the deceased’s death was caused by this unlawful act. Consent by the victim was no defence to this. R v Kennedy confirmed the decision of R v Cato on this point.

Answer 129

This concerns situations where the deceased voluntarily consumes the drug, in awareness of what they are taking. Where the deceased is deceived, or is otherwise unaware of what they are taking, the supplier of the drug may still be guilty of an offence under s 23 OAPA. This offence could form the basis of a conviction for unlawful act manslaughter.

Answer 130

Where the deceased is aware of what they are taking, could the supplier of drugs still be convicted? Does it make a difference if the supplier of drugs does more than simply supplying, such as by mixing a particular ‘cocktail’ of drugs, or filling the syringe before passing it on to V? The issues fell to be determined by the House of Lords in R v Kennedy [2007] 3 WLR 612. The offence of unlawfully by administering a noxious thing contrary to s 23 OAPA is beyond the scope of this Workbook.

Answer 131

Kennedy supplied a dose of heroin in a syringe, which he handed to the victim, who injected himself, and almost immediately suffered an adverse reaction. The victim later died of the consequences of intoxication by opiates and alcohol. Kennedy was convicted of unlawful act manslaughter and his conviction was upheld by the Court of Appeal on two separate occasions.

Answer 132

When is it appropriate to find someone guilty of manslaughter where that person has been involved in the supply of a class A controlled drug, which is then freely and voluntarily self-administered by the person to whom it was supplied, and the administration of the drug then causes his death?

Answer 133

‘In the case of a fully-informed and responsible adult, never.’ (Per Lord Bingham.) Lord Bingham: The criminal law generally assumes the existence of free will. The law recognises certain exceptions, in the case of the young, those who for any reason are not fully responsible for their actions, and the vulnerable, and it acknowledges situations of duress and necessity, as also of deception and mistake. But, generally speaking, informed adults of sound mind are treated as autonomous beings able to make their own decisions how they will act, and none of the exceptions is relied on as possibly applicable in this case. Thus 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.

Answer 134

In this case the heroin is described as “freely and voluntarily self-administered” by the deceased. This, on the facts, is an inevitable finding. The appellant supplied the heroin and prepared the syringe. But the deceased had a choice whether to inject himself or not. He chose to do so, knowing what he was doing. It was his act.

Answer 135

* The defendant intentionally (voluntarily) did an act which results in the death of a person (D does not need intention regarding the consequences which flow from the act).

Answer 136

- A criminal act rather than a civil one (R v Franklin), the actus reus and mens rea of the offence must be proven (R v Lamb) and there must be no valid defence (R v Scarlett). - An intrinsically unlawful act: It cannot be a lawful act which becomes which becomes unlawful only because of the negligent or reckless manner in which it is performed eg driving (Andrews v DPP). - An act rather than an omission (R v Lowe).

Answer 137

An objective test which asks if all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm, albeit not serious harm (R v Church).

Answer 138

- The sober and reasonable person knows everything they would have known if they had been in the defendant’s shoes at the time of the offence (Dawson, Watson). - The sober and reasonable person has any special knowledge that the defendant has or ought to have known (Ball). - Being reasonable, they do not make any unreasonable mistakes made by the defendant (Ball).

Answer 139

- Directly administers a drug to V, D causes V’s death as consent by the V is no defence (Cato). - Merely supplies V with the drugs, or assists V, D does not cause V’s death, so long as V is a fully informed and responsible adult who freely and voluntarily self-administers (Kennedy)

Answer 140

Involuntary manslaughter includes all varieties of unlawful homicide other than murder. It is distinguished from murder by the lack of ‘malice aforethought’. This element will consider one of two main forms of involuntary manslaughter: gross negligence manslaughter

Answer 141

The basis of a gross negligence manslaughter charge will be that the defendant has breached a duty of care owed to V. This can be done through a positive act or by an omission which must be considered so bad that it necessitates a criminal charge.

Answer 142

The classic definition of negligence in relation to manslaughter was given in this case: […] in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.

Answer 143

Defining the precise nature of negligence has proved problematic for the courts. In this case the House of Lords summarised the degree of negligence as being close to reckless, but not completely the same

Answer 144

Probably of all the epithets that can be applied “reckless” most nearly covers the case […] but it is probably not all-embracing, for “reckless” suggests an indifference to risk, whereas the accused may have appreciated the risk and intended to avoid it and yet shown in the means adopted to avoid the risk such a high degree of negligence as would justify a conviction.

Answer 145

The leading case on gross negligence manslaughter is this House of Lords decision. In Adomako, the defendant was a locum anaesthetist during an operation to correct a detached retina. He failed to notice that a tube had become dislodged during the course of the operation, and this resulted in the patient being deprived of oxygen. The patient suffered a cardiac arrest and died. The defendant was convicted of manslaughter

Answer 146

The Lords dismissed his appeal and expressed the view that Andrews v DPP had not been overruled by the House, and that, therefore, gross negligence and not recklessness was the correct test for this form of manslaughter.

Answer 147

In my opinion the law as stated in these two authorities [Bateman and Andrews] is satisfactory as providing a proper basis for describing the crime of involuntary manslaughter […]. On this basis in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim

Answer 148

The basic requirements for gross negligence manslaughter as laid down in Adomako are as follows: (a) The existence of a duty of care; (b) Breach of that duty; (c) That the breach causes death; (d) That there was a risk of death; and (e) That the breach of duty was so bad as to amount to ‘gross negligence’.

Answer 149

Duty of care is essentially given the same meaning it has in the law of tort, and a defendant will owe such a duty towards anyone where harm caused by their acts was foreseeable

Answer 150

In certain situations, this can be easy to establish as it is now settled in the law of tort that everyone has a general duty to take care to avoid injury by a positive act to their neighbour.

Answer 151

You also know that liability can arise for an omission in circumstances where the defendant is under a specific duty to act. This duty can arise by statute or by contract. It can also arise as a result of a special relationship between the defendant and the victim, as a result of the defendant’s voluntary assumption of a duty of care, or as a result of the defendant creating a dangerous situation.

Answer 152

Even if the defendant’s act does not fall neatly in to either category set out above, there may still be liability. The judge will decide whether there is sufficient evidence to go before the jury based on the specific facts of each case.

Answer 153

The deceased tenant had died from carbon monoxide poisoning as a result of a faulty gas fire. The defendant was the maintenance man for the lodging house where the deceased had been staying and he was in charge of the lodging house while his father, the owner, was away in India. The trial judge summed up the duty of care owed.

Answer 154

In [the defendant’s] case there existed a close relationship between him and his father’s tenants […] Mr Gurpal Singh was […] the “maintenance man” he was also one of the two people to whom tenants could bring any complaints or inquiries that they had with the prospect of there being dealt with […]. Therefore Mr Gurpal Singh had assumed a duty of care towards his father’s tenants. The Court of Appeal approved ‘as a model of its kind’ the judge’s direction and the appeal against conviction was dismissed.

Answer 155

In this case R had supplied drugs to the victim who had clearly suffered a severe adverse reaction to the drugs. R did various things, such as putting the V in a cold bath, to try to revive him. The next day R rang the V’s mother and said he was going to work, and she would find her son outside R’s house. The mother asked R to bring V in and cover him with a blanket. R agreed, but left V outside. It was very cold weather and V died from a combination of hypothermia and the drugs.

Answer 156

The Court of Appeal, in reviewing the sentence, found that the defendant had breached a duty of care towards the victim even though it is not clear from the judgment on what basis the duty arose. It could have been that R had voluntarily assumed a duty or care, or it could have been that R had created a dangerous situation as in R v Miller. The courts have made it clear that the defendant could still have a duty of care within criminal cases, even though such liability would be avoided in tort.

Answer 157

The appellant, a lorry driver, was convicted of killing by gross negligence after 58 illegal immigrants were suffocated while being transported in his lorry. The defendant argued that the law of negligence did not recognise a duty of care arising between parties to a criminal enterprise. The Court of Appeal upheld his conviction stating that it was inappropriate to apply the tortious principle of ex turpi causa non oritur actio in a criminal action.

Answer 158

The House of Lords in Adomako held that the ordinary principles of negligence apply in deciding whether the defendant had breached their duty of care. The question is one of whether the defendant’s acts fell below the standard expected of a reasonable person. The reasonable person will be attributed with any special skill used by the defendant. In Adomako the question was whether the defendant’s actions had fallen below the standard of a reasonable anaesthetist.

Answer 159

The normal causation principles apply

Answer 160

In Adomako, Lord Mackay referred to the risk of death, but then quoted the test in Bateman, which refers to a disregard to the ‘life and safety of others’. However, in Singh it was held that there must ‘be an obvious and serious risk not merely of injury or even serious injury, but of death’.

Answer 161

That there must be an obvious and serious risk not merely of injury or even serious injury, but of death was confirmed by the Court of Appeal in this case. Lord Judge stated: In our judgment, where the issue of risk is engaged, Adomako demonstrates, and it is now clearly established, that it relates to the risk of death, and is not sufficiently satisfied by the risk of bodily injury or injury to health. At this point he does not appear to require an obvious and serious risk. However, later in his judgment he refers to the quote from R v Singh, above, with approval.

Answer 162

The Court of Appeal overturned the conviction of an optometrist due to this element of the offence not being fulfilled. Rose had performed a routine sight test on a seven-year-old boy, but failed to use an ophthalmoscope to view his optic nerves. Rose had a duty to do this internal examination which would have revealed he was suffering from hydrocephalus. At her trial it was found that a competent optometrist would have carried out such an examination and having done so would have seen that the optic nerve was swollen and immediately referred the boy for medical treatment which would have saved his life.

Answer 163

Held that test for the fourth element of gross negligence manslaughter was whether a reasonable and competent optometrist would have seen an obvious and serious risk at the time of the breach of duty. It was not whether a reasonable and competent optometrist would have seen an obvious and serious risk if she had not breached her duty. A mere possibility that an assessment might reveal something life-threatening was not the same as an obvious risk of death: an obvious risk was a present risk which was clear and unambiguous not one which might become apparent on further investigation.

Answer 164

Judges have struggled with how to direct juries to differentiate between negligence causing death justifying a successful civil action for compensation, and negligence, which is sufficiently serious to justify a conviction for manslaughter. In Adomako, the House of Lords acknowledged that the infinite variety of circumstances in which the issue may arise precludes any more precise definition of the distinction and therefore left the issue to the jury with relatively little guidance.

Answer 165

The difficulty of explaining the distinction to a jury between civil negligence and criminal gross negligence is illustrated in this case. The captain of a schooner was convicted of manslaughter by gross negligence when three of his crew members died after he sailed perilously close to the Cornish coast, knowing that he would have to rely on his engines and knowing that they may break down as a result of him using contaminated fuel.

Answer 166

According to the trial judge ‘with his vast experience of sailing, he must have appreciated the obvious and serious risk of death to his crew in navigating his ship in the way he did’. The Court of Appeal upheld his conviction based on the trial judge’s direction that the question for the jury was whether the captain’s conduct was:

Answer 167

[…] so bad, so obviously wrong, that it can be properly condemned as criminal, not in some technical sense of the word, like somebody might be regarded as criminal if they did not have a light on the back of their bicycle, but in the ordinary language of men and women of the world. In this case, the fact that the defendant had recognised the risk made it easier for the jury to find he had been grossly negligent.

Answer 168

Adomako was an anaesthetist attending an operation. The defendant did not appreciate that there had been a disconnection of the oxygen tube. After 4 mins an alarm sounded. Despite resuscitation attempts, the patient died 9 minutes after the disconnection. At no stage between the alarm and the death was the connection checked. This was despite the fact that the patient started to turn blue after the oxygen tube had been disconnected. The prosecution called witnesses who stated that: ‘the standard of care that the patient received was abysmal’. Checking the oxygen tube would have been absolutely basic procedure.

Answer 169

This is necessarily a question of degree and an attempt to specify that degree more closely is I think likely to achieve only a spurious precision. The essence of the matter which is supremely a jury question is whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission.

Answer 170

The Court of Appeal held that proof of gross negligence did not require proof of any particular state of mind, and did not require evidence as to the accused’s state of mind.

Answer 171

The victim developed an infection following a routine operation. The two defendants were between them the doctors responsible for V’s post operative care over a period of 48 hours from the time of his operation until the time of death (S on night shift, M on days). Despite numerous signs of significant post-operative problems (raised temperature, low blood pressure, high pulse) they took little action. They did not check blood tests that had been ordered, ignored advice from senior nurses and other doctors, recorded the patient as being fine and basically did nothing to treat the patient. Such a catalogue of errors could not realistically be anything other than grossly negligent.

Answer 172

S was the son of the owner of a building split into bedsits. S acted as rent collector, maintenance man and main link between the tenants and his father. At the time of the death, he was in charge as his father was in India. Several tenants told him of problems with their gas fires, including the smell of gas and symptoms suggestive of carbon monoxide poisoning over a period of four months. S acknowledged he was aware of the dangers of carbon monoxide poisoning. One of the tenants died of carbon monoxide poisoning. S, his father and the fitter who inspected the fires the previous year were all convicted of manslaughter. Given the number of complaints, his direct involvement and his knowledge, S’s conviction was upheld.

Answer 173

Their appeal was heard with Adomako in the Court of Appeal. Both were junior doctors. P was required to administer a routine lumbar injection to a 16-year-old cancer sufferer. He had not done this before and was concerned about whether he should. He consulted the registrar, who arranged for S (who had only done the procedure once) to supervise. S took the wrong drug from a box of drugs provided and handed it to P who injected. Because it was the wrong drug, the patient died from a reaction to it.

Answer 174

In the circumstances, the mistakes by the defendants were in part brought about by the failures of others, including the failure of more senior doctors to prepare and advise them or supervise them properly, inadequacies in the way the drugs were stored (different drugs with similar labels in the same box). Therefore the mistakes of the defendants were not ‘grossly negligent’ – contrast with Singh where there were also multiple people responsible but all were experienced and individually able to address the problems.

Answer 175

It is not possible to draw firm conclusions from these cases, given that the issue of what constitutes gross negligence is fact sensitive. However, here are some themes which can be used to guide your application of the law to the facts of any scenario you are given

Answer 176

Where the defendant is responsible for a series of acts/omissions rather than a single event, this may make it easier for the jury to find gross negligence

Answer 177

A single devastating act can be grossly negligent

Answer 178

Where the defendant’s mistakes are themselves in part or in whole brought about by mistakes of others, this may be a reason for not convicting

Answer 179

There can be gross negligence by the defendant, even if others are also responsible for the circumstances leading up to the death, for example where, despite the involvement of others, the defendant has a clear personal responsibility and the ability to discharge it

Answer 180

If the defendant has knowledge/experience that should alert them to the danger, this may be a helpful fact for the jury to take into account: contrast Singh and Litchfield with

Answer 181

There is no requirement for any mental state, Adomako. However the defendant’s state of mind is not irrelevant eg it was a key point in Litchfield that Litchfield would have seen the serious risk of death.

Answer 182

If someone has seen a high risk of death or has a ‘couldn’t care less’ attitude to a high risk of death, it seems clear that they are highly likely to be convicted. * The defendant’s state of mind may also work in their favour: if the defendant genuinely did not believe there was a risk, this is a factor that the court can take into account.

Answer 183

* The existence of a duty of care: Everyone has a general duty to take care to avoid injury by a positive act to their neighbour. Liability can arise for an omission in circumstances where the defendant is under a specific duty to act. * Breach of that duty: The question is one of whether the defendant’s acts fell below the standard expected of a reasonable person. The reasonable person will be attributed with any special skill used by the defendant. * The breach causes death: Factual and legal causation principles apply. * There was a risk of death: There must ‘be an obvious and serious risk not merely of injury or even serious injury, but of death’ (Singh). * The breach of duty was so bad as to amount to ‘gross negligence’: Whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission (Adomako). Factually specific but some themes can be drawn from the case law in this area

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