A2 last minute revision on Gross Negligence

Gross Negligence and Involuntary Manslaughter

1. Duty of care – Donoghue v Stevenson  &  Caparo means:

·         Damage foreseeable that victim be injured

·         Claimant not too remote

·         Just to impose duty

But R v Singh says requires reasonable person to foresee a serious risk not merely serious injury but death. Brown v R suggests must be only a high degree of risk.

If reckless to lesser degree of harm but causes death maybe reckless manslaughter – category of manslaughter Lord Mackay in Adamako left open but causes considerable academic speculation.

Duty of care situations: doctor-patient, landlord-tenant

2.  Breach Of Duty

Conduct below standard expected of reasonable person – risk factors probability of harm/seriousness of injury and

3 . Breach caused Death

  causation legal and factual test so but for defendants actions would defendant still be alive.

4.  Conduct so bad

that in opinion of jury the act or omission is criminal. The gross negligence is the mens rea for the offence.

R v Adomako gross negligence could include the following:

• Indifference to obvious risk of injury to health
• Actual foresight of risk but nevertherless go ahead
• Appreciate a risk and intends to avoid it but highly negligent in the attempt to avoid
• Inattention or failure to address a serious risk that their duty demanded.

Adomako case – returned to traditional rules of R v Bateman and Andrews v DPP after wrong turn R v Lawrence and R v Seymour

RECKLESS MANSLAUGHTER

After Adomako believed it had been absorbed into gross negligence m/s.

However in R v Lidar the CA developed test for reckless m/s – was defendant aware of a risk of death or serious injury and proceeds to take that risk.

It is a subjective test  in Lidar driving car which victim was clinging on to bonnet driven over held reckless m/s.

Difficulty is distinguish recklessness from oblique intention. In Hyam was convicted of murder because foresaw high probable risk of death or GBH but no certainty. Court held then was sufficient mens rea for murder. Today would not be murder but subjectively reckless and guilty of unlawful and dangerous act M/s.

A2 last minute revision on defences

Defences

When looking at the criminal liability after discussing the actus reus and mens rea you should consider whether any defences are available.

Consent

Limited and controlled applications. Test is a legal one rather than medical

General Rule: Not a defence where non-fatal crimes are concerned.

CA where two people fight blows can be battery cant plead other consented to the fight.

First rule – consent must not be obtained by deception R v Richardson suspended dentist worked on patients. Convicted for ABH appealed argued they had consented was allowed as no deception as to the nature and quality of the dental work. But if a mistake as to qualifications then did not know quality of work and this could negate consent.

Second rule – only applies to Assault and Battery not any more serious crime unless in following circumstances:

• Sports eg football and rugby – where physical contact part of game. Players deemed to have consented to even serious injuries provided within rules of game R v Billinghurst
• Rough Horseplay. - Rv Jones gang threw boys in air one ruptured spleen and broke arm defence allowed as no intention to cause injury and GBH convictions quashed.

R v Richardson & Irwin – students drinking horseplay dropped one 30 metres CA quashed s20 offence as original judge confused subjective and objective and more importantly a plea of voluntary intoxication in response to offence of basic intent, need to prove defendant foreseen the risk had he not been intoxicated. Held mistaken belief by defendant that victim consented to risk of personal injury enable defendant to avoid liability even if the mistake was induced by intoxication.

• Surgery includes tattooing and body piercing. R v Wilson branding wife fell within tattooing unlike R v Brown sadomasochism.

Insanity

The M’Naghten rules 1843

            “defect of reason from disease of the mind as not to know nature quality of act”

3 things need to be proved:

• Defendant disease of mind
• Disease produced defect of reason
• Defect reason meant did not know nature and quality of act did

Disease of Mind – psychiatric illnesses but courts gone further any disease affecting functioning of mind resulting in physical illnesses being “disease of mind mind”

• Epilepsy R v Sullivan
• Diabetes R v Hennessy
• Arteriosclerois r v Kemp
• Sleepwalking r v Burgess

Disease must be Internal and not external so a blow on head, drugs, alchol or hypnotic influences -  (might plea automatism or intoxication)

Distinction between internal and external factors strange result where diabetics – In Hennessy diabetic held insane when didn’t take insulin the hyperglycaemia was caused by internal diabetes. But R v Quick held sane when having taken insulin but didn’t eat his hyperglycaemia was classed as being external.

Defect of Reason

Powers of reason must be impaired a mere failure to use your powers of reasoning not enough. R v Clarke

Not know the Nature

Refers to the physical nature not its morality. Eg insane delusions to cut throat thinking was bread also temporary unconscious or automatic state.

Not know what he was doing wrong

If know it is against the law then knew it was “wrong” for present purposes and can’t claim insanity. R v Windle upheld in R v Johnson

Evaluation

Criticisms are:

• Based on outdated medical views Royal Commission on Capital Punishment described M’Naghten Rules obsolete & misleading
• Defence too narrow excludes many people who ought not to be held criminally responsible like those suffering from irresistible impulses cant plead as they know the nature & quality of their acts and that they are wrong they simply can’t stop themselves (could plead if charged with murder partial defence of diminished responsibility r v byrne)
• Defence too wide results in epileptics, diabetics and sleepwalkers classed as insane.
• Medical witnesses give conflicting views so medically unqualified jurors having to choose.

Contravening the ECHR?

To detain defendants who are epileptics, diabetics or sleepwalkers is arguably a breach of Article 5.

M’Naghten rules seen as contrary to the presumption of innocence enshrined in ECHR Article 6 because burden of proof on defendant.

Should mental illness be a legal defence seems to adopt mad not bad but cannot you not be mad and bad while might be a relationship between mental illness and crime but seems stronger link between adverse social circumstances and crime  so why not a defence of social adversity.

Think of taking A level law read on...

Law

“If there were no bad people, there would be no good lawyers.”  Charles Dickens

Subject title: A Level Law

You are

Your own experience and the media’s fascination with law-related stories

means that this subject is relevant, interesting and popular. Quite apart from

 the capacity to work hard, law students require good communication, logical

reasoning, analytical, problem-solving and time-management skills.

You will need

A minimum of 5 A* - C grades at GCSE level including a C in English.

The qualification is assessed by examinations. The AS qualification is two units the first looks at sources of law how the law is interpreted and how precedent works. The second unit we study judges, juries and the workings of criminal justice system with a focus on assault & battery, actual bodily harm and GBH. Finally, we look at contract law and how to make a civil claim for breach.

In the second year students in Unit 3 will study homicide by looking at murder and manslaughter and the defenses available.  In Unit 4 the crimes of Theft, Robbery and Burglary are explored and we end with a study of the theories of Law.

In the examinations there will be a mixture of short questions which test knowledge and questions which are based on a problem scenario and require students to apply their knowledge to give a legal opinion.  

We offer

We are an established and thriving department. Law is taught in a well

resourced subject base, with the most up-to-date materials and ICT facilities.

Trips and visits are arranged with local law enforcement agencies, legal

professionals and the criminal courts like the famous Old Bailey.

Other students combine this subject with

Typically students have chosen English Literature, Psychology,

Business Studies, Sociology, Politics and History (Students should be careful

about combining three subjects from Business Studies, Economics, Law and

Accounting as some universities view these as being too similar.)

Later you might become

A Level Law provides an excellent background for university and careers

not only in law, but also in Journalism, Local and Central Government, Public

Relations, Teaching, and a range of Management and Business areas. Some famous lawyers that you might have heard of include: Abraham Lincoln, Gandhi , Kafka, Barrack Obama, Bill & Hillary Clinton, Tony & Cherie Blair, Lenin.

Welcome

Welcome to my new Law blog this is a resource which you can use to help keep up to date with where you are and where you want to be.

The Old Bailey as Dr Crippen arrives.