|
||||||||||||||||||||
|
||||||||||||||||||||
The subjectivist theory of choice
But Duff proposes the case of a bridegroom who misses his wedding because it slips his mind when he is in the pub. Orthodox subjectivity represented by mistake as to the victim's consent in rape cases (see DPP v Morgan (1976) AC 182 albeit now repealed by the Sexual Offences Act 2003) either accepts subjective beliefs at the relevant time as a potential defence, or otherwise deems the accused less culpable for sentencing. The bride, however, would rightly condemn the bridegroom because he obviously did not care, and this attitude is sufficient to make him blameworthy. Duff argues that this example bases condemnation on a subjective basis because all currently held attitudes are subjective, and the failures to remember or foresee are an existing state of mind at the time the actus reus occurs and should considered culpable, particularly when death is the consequence. Manslaughter by gross negligenceUnder English law, where a person causes death through extreme carelessness or incompetence, gross negligence is required. While the specifics of negligence may vary from one jurisdiction to another, it is generally defined as failure to exercise a reasonable level of precaution given the circumstances and so may include both acts and omissions. The defendants in such cases are often people carrying out jobs that require special skills or care, such as doctors, police or prison officers, or electricians, who fail to meet the standard which could be expected from a reasnoble person of the same profession and cause death. In R v Bateman (1925) 19 Cr. App. R. 8 the Court of Criminal Appeal held that gross negligence manslaughter involved the following elements:
The House of Lords in Seymour (1983) 2 AC 493 sought to identify the mens rea for "motor manslaughter" (negligently causing death when driving a motor vehicle). Reference was made to Caldwell (1982) AC 341 and Lawrence (1982) AC 510 which held that a person was reckless if:
In Adomako (1995) 1 AC 171 an anaesthetist failed to notice that a tube had become disconnected from the ventilator and the patient died. Lord Mackay disapproved Seymour and held that the Bateman test of gross negligence was the appropriate test in manslaughter cases involving a breach of duty, allowing the jury to consider the accused's conduct in all the surrounding circumstances, and to convict only if the negligence was very serious. Individuals have a duty to act in the following situations:
In Attorney-General’s Reference (No 2 of 1999) (2000) 3 AER 182, a case on corporate manslaughter that arose out of the Southall rail crash, the Court of Appeal decided the defendant's subjective state of mind (i.e. whether there was conscious risk-taking) is irrelevant and, therefore, so is the question of recklessness, leaving the objective test as the only test for liability. Rose LJ, said:
Motor manslaughterBecause of a reluctance by juries to convict when the charge was manslaughter, a statutory offence of "causing death by dangerous driving" was introduced. Following the Road Traffic Law Review Committee (1988), the Road Traffic Act 1991 abandoned recklessness in favour of the pre-statutory objective test of "dangerousness", i.e. did the driving fall far below the standard of the competent and careful driver. The Committee also recommended that manslaughter should be an optional charge for the more serious driving cases. Note the possibility of charging an aggravated TWOC for less seriously dangerous driving where death results. Unlawful act manslaughterUnder English law, according to R v Creamer (1966) 1 QB 72, a person is guilty of involuntary manslaughter when he or she intends an unlawful act that is likely to do harm to the person, and death results which was neither foreseen nor intended. The alternative name for this crime is constructive manslaughter. Although the accused did not intend to cause serious harm or foresee the risk of doing so, and although an objective observer would not necessarily have predicted that serious harm would result, the accused's responsibility for causing death is constructed from the fault in committing what might have been a minor criminal act. In R v Dawson (1985) 81 Cr. App. R. 150 a petrol station attendant with a weak heart died of heart failure when the appellant attempted a robbery of the station. In judging whether this act was sufficiently dangerous, the Court of Appeal applied a test based on the "sober and reasonable" bystander who could be assumed to know that the use of a replica gun was likely to terrify people and so be a danger to those with a weak heart. Note the aggravated form of criminal damage with intent to endanger life under s1(2) Criminal Damage Act 1971 which could provide the unlawful act if the damage actually causes death. But R v Carey, C and F (2006) EWCA Crim 17 limits the scope of unlawful act manslaughter. An argument became violent and the first defendant punched and kicked one victim. The second defendant assaulted the deceased by pulling her hair back and punching her in the face. The third defendant assaulted another. The deceased was one of the first to run away, after which she felt faint, and later died of a heart condition (ventricular fibrillation or dysrhythmia) which was congenital but which had not been diagnosed before her death. The unlawful act was said to be the affray and the judge held that it was legitimate to aggregate the violence by the other defendants in order to decide whether the affray had subjected the deceased to the threat of at least some physical harm, and so had been a cause of death. On appeal, it was inappropriate to hold the defendants liable for the death. There must be an unlawful act that was dangerous in the sense that sober and reasonable persons would recognise that the act was such as to subject Y to the risk of physical harm. In turn, that act must cause the death. When deciding whether an act is dangerous, knowledge of the victim's characteristics may be relevant. In this case, no reasonable person would have been aware of the victim's heart condition which distinguishes this case from Dawson, and from R v Watson (1989) 1 WLR 684 in which the victim's approximate age (he was 87 years old) and frail state would have been obvious to a reasonable person. A sober and reasonable person would not have foreseen that an apparently healthy person of 15 years would suffer shock as a result of it. The court held that the deceased's death was not caused by injuries that were a foreseeable result of the affray. The assault by the second defendant was an unlawful act causing death. The other two defendants could have been convicted by virtue of common purpose given that the death was an accidental departure from the general plan of the affray. But the Crown did not elect to present the case in this way, but pleaded the case as a public order group activity. The result would be that if anyone died in a general disturbance amounting to an affray, all those who participated could be convicted of manslaughter which would be against public policy. Deaths in a general disturbance are too remote to be caused by all participants. Thus, a punch which causes a person to fall will almost inevitably satisfy the test of dangerousness, and where the victim falls and suffers a fatal head injury the accused is guilty of manslaughter. It is foreseeable that the victim is at risk of suffering some physical harm (albeit not serious harm) from such a punch and that is sufficient. Physical harm includes shock. The reason why the death resulting from the attempted robbery of the 60 year old petrol station attendant was not manslaughter was that the attempted robbery was not dangerous in the relevant sense. It was not foreseeable that an apparently healthy 60 year old man would suffer shock and a heart attack as a result of such an attempted robbery. But the jury properly found that it was foreseeable that an obviously frail and very old man was at risk of suffering shock leading to a heart attack as a result of a burglary committed at his home late at night. In R v Charles James Brown (2005) EWCA Crim 2868, following the break-up of his relationship with his girlfriend, at about 3 pm., the applicant sent a text message to his mother saying that he did not want to live any more. He then drove his car against the flow of traffic along the hard shoulder of the A1(M) at high speed, before moving into the carriageway, still accelerating and straddling the centre line. He then crashed, head on, into an oncoming car, killing the passenger and injuring many others in the resulting consequential crashes. A sentence of 10 years' detention in a young offender institution was upheld because although the intentional focus might have been only on suicide, the defendant must have known from the way he was driving that he would kill or injure at least one other person. See alsoReferences
|
Sites |
Searched sites for "Manslaughter in English law" |
|
No sites found. |
Sorry, no matching site records were found. |
Want your site listed here?
|
||||||||||||||
