R v Adomako

English Criminal Law

R v Adomako
‘The First Operation with Ether’ by Robert Cutler Hinckley

The difference between criminal negligence and manslaughter is discussed in a case that showcased the immense vulnerability with which we place our care, and therefore our lives, in the hands of medical professionals on any given day.

Having been summoned to serve as a locum anaesthetist at Mayday Hospital, London, during a routine eye operation, the appellant was alerted by an alarm on the Dinamap machine, whereupon he immediately administered two intravenous doses of atropine on the assumption that the patient was having what he thought was an ocular cardia reflex, even though the actual cause of the alarm had resulted from a disconnection of the endotracheal tube providing oxygen to the patient, some four and a half minutes earlier.

In fact, it wasn’t until the appellant noticed how the patient had begun to turn blue, that he attempted to perform cardiopulmonary resuscitation (CPR), which proved ultimately futile when the patient then suffered a cardiac arrest and died, all of which resulted in the appellant appearing before the Central Criminal Court on charges of manslaughter, wherein the jury found him guilty.

Having challenged the judgment in the Court of Appeals, the appellant argued that while a failure to notice the disconnection was short of the duty of care prescribed him, his actions following his discovery were reasonable given the circumstances, and that the court ought to have found him culpable only of misdiagnosis and not criminal negligence, or even manslaughter as convicted.

However with consideration of the proportional trial direction, the court explained that when attempting to determine involuntary manslaughter, a jury must first establish (i) the existence of a duty, (ii) a breach of that duty that amounts to a death, and (iii) negligence sufficient enough to warrant a criminal conviction, and so having deliberated upon the facts presented, the court held that:

“It was in our view clearly open to the jury to conclude that the appellant’s failure to perform his essential and in effect sole duty to see that his patient was breathing satisfactorily and to cope with the breathing emergency which should have been obvious to him, justified a verdict of guilty. They were entitled to conclude his failure was more than mere inadvertence and constituted gross negligence of the degree necessary for manslaughter.”

Whereupon the appellant’s case was presented to the House of Lords on the question as to whether in cases of manslaughter the jury ought to be guided by the test first used in R v Lawrence and now commonly applied in motor vehicle related deaths, or by those principles used in the trial court.

Here the House first turned to R v Bateman, in which the Court of Appeal had held that:

“[I]n 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.”

 While the House noted that in Andrews v Director of Public Prosecutions it had similarly held that:

“Simple lack of care such as will constitute civil liability is not enough: for purposes of the criminal law there are degrees of negligence: and a very high degree of negligence is required to be proved before the felony is established.”

However in Lawrence the test for recklessness was reliant upon the fact:

(i) “[T]hat the defendant was in fact driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to property…”

And:

(ii) “[T]hat in driving in that manner the defendant did so without having given any thought to the possibility of there being any such risk or, having recognised that there was some risk involved, had nonetheless gone on to take it.”

Thus the House held that when ascertaining liability for manslaughter, the courts ought only to rely upon the  Bateman and Andrews tests in order to simplify their application and assist a jury, although should the judge feel so compelled, he might also consider the Lawrence test where wholly applicable, upon which the court dismissed the appeal in full, while holding that:

“To make it obligatory on trial judges to give directions in law which are so elaborate that the ordinary member of the jury will have great difficulty in following them, and even greater difficulty in retaining them in his memory for the purpose of application in the jury room, is no service to the cause of justice.” 

 

R v Williams (Barry Anthony)

English Criminal Law

Williams (Barry Anthony)
‘Glastonbury Mud at Sunset’ by Kurt Jackson

The importance, if not imperative demonstration of causation lies at the heart of a case in which a jury was led to believe that manslaughter by way of robbery was unquestionably evident, when in fact the circumstances behind the event were such that prevented any reasonable direction, or sustainable conviction thereafter.

In June of 1989, the appellant was driving a vehicle with two passengers when a hitch-hiker attempted to obtain a lift to Glastonbury Festival. Having entered the car, the now deceased was subjected to what was held as a pre-meditated robbery attempt, during which he threw himself from the vehicle at speed, an action that resulted in severe head trauma and his subsequent death.

Upon indictment to the Bristol Crown Court, the appellant and the co-defendants were accused of threatening the victim so as to take all of his money, whereupon he had reluctantly offered to pay a nominal sum to the appellant rather than risk suffering possible violence while travelling inside the car.

Despite a lack of causative evidence aside from the witness testimonies of the three men accused, the presiding judge explained to the jury that:

“[W]hat he was frightened of was robbery, that this [money] was going to be taken from him by force, and the measure of the force can be taken from his reaction to it. The prosecution suggest that if he is prepared to get out of a moving car, then it was a very serious threat involving him in the risk of, as he saw it, serious injury.”

And so when reaching a verdict, the jury held that two of the men were guilty of manslaughter, with the appellant found to have been the one threatening the victim shortly before his death, a decision which was challenged in the Court of Appeal on grounds of misdirection and lack of causation between the actual threat and subsequent death.

Here the court turned to R v Roberts, in which the Court of Appeal had held that:

“[I]f of course the victim does something so “daft,” in the words of the appellant in this case, or so unexpected, not that this particular assailant did not actually foresee it but that no reasonable man could be expected to foresee it, then it is only in a very remote and unreal sense a consequence of his assault, it is really occasioned by a voluntary act on the part of the victim which could not reasonably be foreseen and which breaks the chain of causation between the assault and the harm or injury.”

While in R v Mackie, the court had further held that:

“Where the injuries are fatal, the [escape] attempt must be the natural consequence of an unlawful act and that 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’….”

A fact that on this occasion, was far from proven, but instead relied upon the urgency of the judge when directing the jury. This translated that the court was unable to sustain the previous verdict of either count, as neither robbery nor manslaughter had been proven beyond any reasonable doubt, therefore the appeal was allowed in full, while the court held that in matters of manslaughter:

“[T]he nature of the threat is of importance in considering both the foreseeability of harm to the victim from the threat and the question whether the deceased’s conduct was proportionate to the threat….”

Commonwealth v. Couch

U.S. Criminal Law

Commonwealth v. Couch

While there is a fine line between the deliberation of murder and recklessness of manslaughter, on this occasion the defendant found himself charged with the death of a complete stranger, roughly a year after his unlawful act had transpired.

In a moment of wanton stupidity, the now appellant took it upon himself to fire his pistols towards a public highway in the State of Kentucky, after which a pregnant woman went into premature labour, due to the shock of hearing the gunfire. 

Following an abortive birth and prolonged illness resulting from the failed delivery, the woman sadly died, whereupon the appellant was indicted for her murder by the State. Having been heard in the Perry County Circuit Court, the trial judge upheld the complaint against the charge, on grounds that the two incidents were separate and thus insufficient to sustain a conviction for murder, rather at best the appellant was guilty of the unlawful discharge of his weapons in a public place.

Taken to the Kentucky Court of Appeals, the court reviewed the facts, while reminding the parties that under the terms of his indictment, the court was empowered to convict anywhere between murder, involuntary manslaughter and manslaughter, while also referring to Sparks v. Commonwealth, in which the same court had held that:

“If a man, contrary to law and good order and public security, fires off a pistol in the streets of a town, and death be thereby produced, he must answer criminally for it, whether it be malum in se or merely malum prohibitum; and especially so when he knows, as in this instance, he is violating law.”

However in the later Hendrickson v. Commonwealth, the court had contrastingly noted that:

“Forcing a person to do an act which causes his death renders the death the guilty deed of him who compelled the deceased to do the act. And it is not material whether the force were applied to the body or to the mind; but, if it were the latter, it must be shown that there was the apprehension of immediate violence, and well grounded from the circumstances by which the deceased was surrounded; and it need not appear that there was no other way of escape; but it must appear that the step was taken to avoid the threatened danger, and was such as a reasonable man might take.”

And so in this instance the appeal court held that while the sound of gunfire had unquestionably caused the deceased to commence premature labour, any illness arising from complications associated with the birth could not be construed as a continuance of the shock, therefore the appellant was lawfully entitled to complain against the indictment, thus accordingly the court upheld the trial court judgment in full, while noting that had the woman died during labour, the outlook would have proved starkly different.

People v. Berry

US Criminal Law

People v Berry
Image: ‘It’s Hard to Explain Murder’ by Dean Cornwell

First degree murder and involuntary manslaughter fall within the same category of unlawful killing, however when the defendant is subject to the misdirection of a jury, the sentence can be one in excess of the prescribed term. In this matter, a man convicted of strangling his wife challenged the trial court decision on grounds of both emotional and mental vulnerability.

In summer of 1974, the appellant married a woman more than half his age, before she travelled back to her home country of Israel. Upon her return, she declared her love for another man with whom she had enjoyed sexual intercourse with on a number of occasions. What then followed was a series of emotional inducements and sexual engagements with the appellant that preceded almost immediate emotional and physical rejections and spurning of his advances.

This pattern of behaviour lasted for a period of around ten days, after which the appellant choked his wife to the point of unconsciousness. Having reported him to the police authorities, the appellant was arrested and charged with assault likely to produce great bodily injury, as per s.245(a)(4) of the California Penal Code, which reads:

“Any person who commits an assault upon the person of another by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine…or by both the fine and imprisonment.”

Within twenty-four hours of her returning home, the two parties began arguing, whereupon the appellant again strangled his wife, instead using a telephone cord until she was dead. Having confessed, the appellant was charged with first degree murder under ss. 187 and 189 of the California Penal Code which read:

“187(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought”

189. All murder which is perpetrated by means of…lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing…with the intent to inflict death, is murder of the first degree.”

Upon which the appellant appealed on grounds that the jury were misdirected when failing to consider the defence submitted by his instructed psychiatrist of voluntary manslaughter under s.192 of the Penal Code, which states:

Manslaughter is the unlawful killing of a human being without malice. It is of three kinds: (a) Voluntary – upon a sudden quarrel or heat of passion (b) Involuntary and (c) Vehicular…”

And that due to his mental instability, he was entitled to mitigation under a defence of diminished responsibility as per People v. Mosher, in which malice was eliminated by way of mental defect.

Upon presentation, the California Supreme Court examined s.192 of the California Penal Code and drew reference to People v. Logan, in which the court held that:

“[I]t is left to the jurors to say whether or not the facts and circumstances in evidence are sufficient to lead them to believe that the defendant did, or to create a reasonable doubt in their minds as to whether or not he did, commit his offense under a heat of passion…[F]or the fundamental of the inquiry is whether or not the defendant’s reason was, at the time of his act, so disturbed or obscured by some passion—not necessarily fear and never, of course, the passion for revenge—to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.”

While noting that in People v. Valentine, it had been agreed that verbal provocation would be sufficient to constitute arousal of heat or passion.

With regard to the claim of diminished responsibility, it was also agreed that while diminished capacity typically required evidence of mental illness, mental defect or intoxication, it had been recently held in People v. Long, that mental illness or defect without intoxication was equally sufficient as a defence.

Unfortunately for the appellant, there had at no time, been any mention of mental deficiency within his defence, and so while it was held that the jury were incorrectly directed to determine guilt without consideration of s.192, there could be no mitigation for diminished responsibility, therefore only the first element of the appeal was reversed.

 

Bush v. Commonwealth

US Criminal Law

Bush v Commonwealth
Image: ‘Kentucky Derby 2017’ by Jim Cantrell

Murder and involuntary manslaughter, while both implicated as a cause of death, stem from quite different modus operandi, and so on this occasion, the misdirection of a jury almost led to the hanging of an innocent man.

Around 1880, the appellant was indicted for murder, after an accidental gunshot injured a third party during a confrontation between two men. While pleaded that the shot was fired out of self-defence, the trial judge directed the jury to determine his guilt as below:

“If the jury believe from the evidence, beyond a reasonable doubt, that the defendant, John Bush, in Fayette county, and before the finding of the indictment, wilfully shot Annie Vanmeter with a pistol, and that she died from the effects of the wound then inflicted upon her, whether said wound was the sole cause or was a contributory agency in producing death, when such shooting was not necessary, and not reasonably believed by the defendant to be necessary for his own protection from immediate death or great bodily harm then threatening him, the jury should find the defendant guilty: guilty of murder, if the killing were also done with malice aforethought, or guilty of manslaughter if the killing were done in sudden heat and passion, and without malice.

Upon this, the jury returned a guilty verdict, despite the fact that the victim died, not from the wound, but from the transmission of scarlet fever from the physician treating her injury, while it was further implied that any deliberate and cruel act must stem from malice, regardless of contributory factors.

Taken to the Kentucky Court of Appeals, the court took issue with almost all of the judicial approaches, and reminded that s.262 of the Criminal Code expressly states that:

“Upon an indictment for an offense consisting of different degrees, the defendant may be found guilty of any degree not higher than that charged in the indictment, and may be found guilty of any offense included in that charge in the indictment.”

This translated that reliance upon the direction of the judge without any explanation as to how the victim died, would by default, lead to a wrongful execution, whereas observation of the events preceding her demise showed clearly that a non-fatal injury would have been equally chargeable as wilful and malicious shooting, stabbing or poisoning under s.2 art.6 ch.29 of the General Statutes of Kentucky 1873, or shooting and wounding in sudden affray, or in sudden heat without previous malice as per s.1 art.17 ch.29 of the same Act.

Thus it was for these quite distinct polarities of reasoning, that the Court reversed the judgment with instruction to retrial upon the very principles applied.

R v Woollin

English Criminal Law

R v Woolin
Image: ‘Skull Study’ by Roger Pister

To read about this case in greater depth, and with the benefit of full OSCOLA referencing, simply purchase a copy of ‘The Case Law Compendium: English & European Law’ from leading booksellers around the world.

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I cannot emphasise enough just how invaluable this book will become to you as your law course progresses, and you’ll be surprised at just how fast you learn the cases and how your confidence grows when discussing their finer points. I am supremely confident that you will also find yourself returning to the book when studying both for insight and refreshment of knowledge, and I quietly hope you will be equally excited whenever you turn to this unprecedented resource.

Please remember that it was you the worldwide readers, that inspired this book, so you owe it to yourselves to buy it (and use the hell out of it) and to tell your peers and friends everywhere, so that they too can work towards becoming an ‘A‘ student in English law.

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R v Howe

English Criminal Law

R v Howe
Image: ‘Anxiety’ by Guy Denning

To read about this case in greater depth, and with the benefit of full OSCOLA referencing, simply purchase a copy of ‘The Case Law Compendium: English & European Law’ from leading booksellers around the world.

Where can I buy it?

The book is available now through most Amazon sites thanks to the brilliance of Print on Demand (POD) technology and it is also printed through Ingram Spark (aka Lightning Source), who, through their worldwide  partnership agreements, supply ‘The Case Law Compendium’ to almost 40,000 retailers, libraries, schools and universities while providing worldwide shipping as standard.

America

Amazon.com, Barnes & Noble

Australia & New Zealand

Booktopia

Britain

 Amazon,   BlackwellWaterstones

Canada

AmazonChapters Indigo

France

Amazon

Germany

Amazon

India

Amazon

Italy

Amazon

Japan

Amazon

Latin America

Amazon Brazil

Amazon Mexico

Spain

Amazon

I cannot emphasise enough just how invaluable this book will become to you as your law course progresses, and you’ll be surprised at just how fast you learn the cases and how your confidence grows when discussing their finer points. I am supremely confident that you will also find yourself returning to the book when studying both for insight and refreshment of knowledge, and I quietly hope you will be equally excited whenever you turn to this unprecedented resource.

Please remember that it was you the worldwide readers, that inspired this book, so you owe it to yourselves to buy it (and use the hell out of it) and to tell your peers and friends everywhere, so that they too can work towards becoming an ‘A‘ student in English law.

– Remember that with ‘The Case Law Compendium’ you can do it.

Electronic Signatures Neil