GRAY v THAMES TRAINS LTD

When the victim of a large-scale train crash becomes subject to a manslaughter charge, the latent need for compensatory remedy is awoken with claims for damages stemming from the punishment dispensed by the courts.

Public policy, pain and suffering, diminished responsibility and the intricacies of criminal sentencing, are all brought to bear in a case broaching tortious claims and unlawful actions.

In 1999, the now cross-appellant, was one of a number of survivors travelling on the Thames Trains Turbo Train when it collided with a First Great Western High Speed Train near Paddington Station.

Known as the ‘Ladbroke Grove Train Crash’, the aftermath left thirty-one people dead and another five hundred injured.

Fortunate enough to sustain only minor injuries, the appellant later attempted to return to normality, despite suffering from panic attacks, mood swings, flashbacks, nightmares and grief symptoms; although within a number of months, he found himself unable to cope with work, travel, social interaction and even close relationships. 

After unsuccessfully attempting to hold down a number of jobs, the appellant wound up unemployed and a semi-functioning alcoholic, while it was during this period that he was attacked by a drunken stranger while driving his car.

After leaving the car to defend himself, the appellant was further subjected to hostile behaviour by a passing group; after which, he drove away in state of heightened fear.

Shortly afterwards, the appellant stole a knife from his partner’s parents, before finding the man and stabbing him repeatedly.

After the victim later died of his injuries, the appellant turned himself in, and was summarily convicted of manslaughter on grounds of diminished responsibility.

In passing sentence, the court chose to detain him using a section 37 hospital order and section 41 restriction order under the Mental Health Act 1983.

Such decisions were typical in instances where a defendant is found guilty of a criminal act while suffering from a recognised psychological abnormality; which in this case, had been established as Post-Traumatic Stress Disorder (PTSD) by a psychiatrist during the trial.

Roughly five years after his conviction, the appellant initiated proceedings against the respondents Thames Trains and Network Rail, for lost earnings arising from the PTSD during the period between the accident and his incarceration.

However, the claim was then extended to include lost future earnings as well as those during the period before and after the trial.

Relying upon the maxim ‘ex dolo malo non oritur actio’, meaning:

“No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted.”

The respondents made clear that while they admitted full liability for the period between the accident and the unlawful act, they were protected by public policy not to compensate a party who relied upon their own misdeeds when laying claim.

While there had been numerous cases touching upon the indivisible nature of tort and criminal matters, strong argument for the ‘novus actus interveniens’ principle suggested that tortious claims preceding criminal acts were by virtue of the unlawful event, separable and therefore distinct.

This gave rise to the notion that liability could extend only so far as the symptoms directly appropriate to, and displayed by the claimant, in relation to the cause of the tort.

However, it was equally held that whatever separating act took place, it must be of such magnitude that it ‘obliterates’ the wrong doing of the defendant’.

On this occasion, it was held by the appellant that without the accident and concluding PTSD, there would have been no loss of earnings, and no act of manslaughter, and so without sufficient evidence to the contrary, the respondents were still liable for the compensation claimed.

In the first instance, the judge awarded in favour of the appellant, while the Court of Appeal reversed the decision and allowed the respondents’ appeal.

Taken to the House of Lords, the appellant then cross-appealed, while the respondents pursued the same ends as before.

Having examined the position taken by the Court of Appeal, the House gave consideration to the manner of sentencing, and the rights of those convicted to claim for loss of earnings.

In R v Birch, Mustill LJ examined the principles behind section 37 hospital orders before explaining that:

“A hospital order is not a punishment. Questions of retribution and deterrence, whether personal or general, are immaterial. The offender who has become a patient is not kept on any kind of leash by the court, as he is when he consents to a probation order with a condition of inpatient treatment.”

R v Birch

However, when coupled with a section 41 restriction order, it was further noted that:

“A restriction order has no existence independently of the hospital order to which it relates; it is not a separate means of disposal. Nevertheless, it fundamentally affects the circumstances in which the patient is detained. No longer is the offender regarded simply as a patient whose interests are paramount. No longer is the control of him handed over unconditionally to the hospital authorities. Instead the interests of public safety are regarded by transferring the responsibility for discharge from the responsible medical officer and the hospital to the Secretary of State alone (before 30 September 1983) and now to the Secretary of State and the Mental Health Review Tribunal.”

This meant that instead of proving an exception to the rule of unlawful conduct, the appellant was instead denied his right to earnings while detained, as was illustrated in British Columbia v Zastowny, where the Supreme Court held that:

“When a person receives a criminal sanction, he or she is subject to a criminal penalty as well as the civil consequences that are the natural result of the criminal sanction. The consequences of imprisonment include wage loss.”

British Columbia v Zastowny

This line or argument was bolstered by the outcome of Clunis v Camden and Islington Health Authority; in which, a former patient stabbed an innocent stranger within days of their release, before claiming diminished responsibility and suing the local authority for negligence.

There, it was held that:

“A plea of diminished responsibility accepts that the accused’s mental responsibility is substantially impaired but it does not remove liability for his criminal act . . . The court ought not to allow itself to be made an instrument to enforce obligations alleged to arise out of the plaintiff’s own criminal act…”

Clunis v Camden and Islington Health Authority

This decision had been given full support of the Law Commission in its consultation paper ‘The Illegality of Defence in Tort’; and so, it was for these reasons that the House reversed the decision of the Court of Appeal in lieu of the original judgment, and allowed the respondents’ appeal, while reminding the parties that:

“[A] civil court will not award damages to compensate a claimant for an injury or disadvantage which the criminal courts of the same jurisdiction have imposed on him by way of punishment for a criminal act for which he was responsible.”

R v WOOLLIN

Loss of life arising from recklessness or deliberate action, is one decided by a jury; however, when the scope of murder is extended beyond reasonable bounds, the verdict does not always reflect the evidence.

When a father became enraged to the point of throwing his three-month old son onto a hard surface, his actions resulted in a fractured skull and death. When indicted, the evidence presented to the jury left questions as to the mens rea of the defendant; and so, it was then left to the presiding judge to direct them accordingly.

In previously similar cases, the test for murder relied upon guidance constructed in R v Nedrick, and one which asked that any jury must avoid the implication of intent, unless they could believe that death or serious bodily harm was ‘virtually certain’ as a result of the defendant’s actions.

This approach narrowed the charge of murder, while allowing for anomalies (such as those presented in the evidence) to contribute towards an alternate conviction for manslaughter.

However, on this occasion the judge derogated from the explicitness of the Nedrick test, using instead, guidance that the appellant:

“[M]ust have realised and appreciated when he threw that child that there was a substantial risk that he would cause serious injury to it…”

Here, the jury found the appellant guilty of murder and dismissed the defence of provocation; and so, when taken to the Court of Appeal, the appellant argued that the widening of the mens rea of murder by the judge, amounted to a gross misdirection and error in law.

The Court dismissed the appeal, while holding that the virtual certainty of death or serious bodily harm was one reserved for cases with limited evidence relating to the actus reus of the accused; and that on this occasion there was sufficient grounds for a widening of the meaning of murderous intent.

However, questions were raised around the need for jury direction in the absence of compelling evidence; in particular whether the defendant intended to kill or cause serious bodily harm, and whether it was virtually certain that in such events, death or serious bodily harm would occur, and that it had been appreciated by the defendant at the time of the act.

Having been brought before the House of Lords, the integrity of the Nedrick test was scrutinised, along with the relevance of judicial direction in matters where the balancing of evidence, and the mens rea of the defendant were pivotal to a fair conviction, as outlined in section 8 of the Criminal Justice Act 1967.

Here, it was found that in the twelve years that the courts had relied upon the Nedrick test, there had been no difficulties in it’s application due to it’s simplicity; and despite some shortcomings in terrorism cases, the test itself was adaptable enough to withstand changes in circumstance.

It was also agreed that by widening the scope of the test through the misuse of words, the trial judge had himself been reckless in his misdirection, and that the conviction was to be quashed in lieu of a manslaughter charge, while further reminding the parties that:

“A jury cannot be expected to absorb and apply a direction which attempts to deal with every situation which might conceivably arise.”

R v HOWE

In a conjoined appeal, the murder of two men in separate circumstances, led to enquiry as to the extent of duress in criminal acts; and where used as a defence to murder, whether it was capable of effecting sentencing reduction or even acquittal where two parties were liable for the act.

Howe and Bannister 

In the first matter, it was argued by two of four defendants, that their participation in a number of killings and acts of abhorrent violence, was based upon a fear of retribution by the older of the men (M).

There were two counts of murder and one of conspiracy to murder, as the third man narrowly escaped death; and on both occasions, the two named appellants were present, albeit jointly culpable only for the killing of the second victim.

After the third defendant and M pleaded guilty to murder under section 1 of the Criminal Law Act 1977, it was then left to the appellants to submit pleadings that they had acted under duress while subject to the instructions of M; and that subsequently, their conviction for murder should be one reduced to manslaughter.

Burke and Clarkson

In this instance, the premeditated killing of a man was brought about through fear of his providing evidence against the second appellant in court.

It was argued by the first appellant, that his willingness to shoot the man was tempered by his fear of what might happen to him if he didn’t act on the second appellant’s instructions.

Further to this, was the contention that when confronted on his doorstep, the victim was killed through accidental firing of the gun, and not by a deliberate act.

For this reason, the first appellant pleaded manslaughter through accidental death, while the second appellant claimed to have had nothing to do with the shooting whatsoever.

When first argued, the jury were directed as to the merits of manslaughter under duress; and on both occasions, found the appellants equally liable for murder.

When taken to the Court of Appeal, the jury were again asked to take an objective view when considering the influence of those providing instructions, and those that committed the criminal acts; where again, the appeals were dismissed and the convictions upheld.

When presented to the House of Lords, it was argued that where objective reasoning for the crime of murder could not allow for a reduction through duress, it was only fair that the appellants were afforded the right to subjectively defend their actions in the face of perceived threats.

This approach ran contrary to English criminal law, and was subject to previous instances where similar claims had been presented and denied (R v Kray and R v Lynch as two such examples).

In Lynch however, the Court of Appeal had been willing to allow a defence of duress, when the appellant had merely driven the killer(s) to their destination.

Through careful examination of the facts behind Lynch, the House found that while duress was acknowledged in matters of serious wounding, it would constitute an affront to the principles of law if those accused of murder, or even as accomplices to murder, were entitled to reason away their actions on grounds of weakness or fear.

For that reason, the appeals were dismissed, whilst a deeper conviction of the all-encompassing weight of murder remained firm when the House reminded the parties that:

“The justification for allowing a defence of duress to a charge of murder is that a defendant should be excused who killed as the only way of avoiding death himself or preventing the death of some close relation such as his own well-loved child.”

R v AHLUWALIA

Victim to an arranged marriage and having endured years of systematic and debilitating abuse at the hands of her husband, the defendant in this appeal case found herself subjected to yet further suffering through the absence of vital medical evidence when her case was presented at trial.

Having been introduced by her brother and sister-in-law while abroad, the defendant, who had been previously studying towards a degree in law, was by cultural obligation and the wishes of her family, forced into marrying the man who later became the subject of her actions.

Prior to their starting a family, the husband began a campaign of mental and physical abuse spanning a decade, until such time as her spirit was broken and death seemed the only solution.

After two failed suicide attempts, the defendant, who herself had been subjected to continuous death threats and physical battery, discovered that her husband was now having an affair with another woman, while uncompromisingly flaunting it with little thought to how degrading and shameful such deceit was to both them and their children.

It was after pleading for him to remain in the marriage, that the defendant set aside a bucket of petrol and a bottle of caustic soda until the time came for her to retaliate.

Unable to sleep one evening, the defendant entered the marital bedroom and proceeded to throw the contents of the bucket over the husband, before lighting a stick and igniting the petrol, whereupon the husband ran screaming from the house before being taken to hospital suffering major burns and dying days afterwards.

At trial, the court found itself with no evidence to support her actions, and after examining both defences offered, the judge explored the argument that her actions represented the cumulative effect of years of provocation by the husband, and that the jury should interpret her actions as that of manslaughter and not murder.

Relying on the changes made to the Homicide Act 1957, there was greater emphasis on the expanse of time between causative actions and those of the defendant, rather than instantaneous responses to attacks.

However, insufficient emphasis was placed upon the mental state of the defendant at the time the act took place, which subsequently resulted in a murder charge, despite the background to the matter.

When taken to the Appeal Court, the judges held that arguments of misdirection were insubstantial to the effect that the jury might have mitigated the verdict.

However, there was the discovery of medically professional evidence that relied upon the Mental Health Act 1983 when describing the defendant as suffering from ‘a major depressive disorder’, thus allowing for diminished responsibility as an alternate defence.

Although the Court typically frowned upon the late presentation of key evidence, it made allowances on this occasion under the powers of section 23(1) of the Criminal Appeal Act 1968, before moving to request a new trial, on grounds that fair and balanced representation was critical to the maxim that ‘Justice should not only be done, but should manifestly and undoubtedly be seen to be done’, while reminding the parties that:

“The phrase “sudden and temporary loss of self-control” encapsulates an essential ingredient of the defence of provocation in a clear and readily understandable phrase.”

R v ADOMAKO

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.”

R v Bateman

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.”

Andrews v Director of Public Prosecutions

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…”

R v Lawrence

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.”

R v Lawrence

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 reminding the parties 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)

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 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.”

R v Roberts

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’….”

R v Mackie

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

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.”

Sparks v. Commonwealth

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.”

Hendrickson v. Commonwealth

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 holding that:

“Involuntary manslaughter is the killing of another in doing some unlawful act, but without intent to kill.”

PEOPLE v. BERRY

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, when in the 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 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.”

People v. Logan

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

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, while reminding the parties that:

“Under an indictment for murder or manslaughter, when there is evidence from which the jury might find the existence of facts constituting involuntary manslaughter, it becomes the duty of the court to instruct the jury as to the law of this offense.”

R v BLAUE

The right to manifest one’s religious beliefs, and the right to prove ‘novus actus interveniens’ within a criminal trial are equally valid, and yet when brought together, the finer points of law and natural justice must always prevail.

In spring of 1974, the victim and now deceased, was a young eighteen year-old Jehovah’s witness, who by all accounts, considered herself a devout worshipper, and one clearly unafraid of death.

While resting at home, the appellant appeared before her and demanded sexual intercourse. After refusing to comply with his demands, the appellant stabbed her four times before fleeing the property.

When found staggering in the street outside, the victim was rushed to hospital, before being diagnosed as having a punctured lung and suffering severe blood loss.

In order to perform the required surgery, the surgical registrar confirmed that she would need an immediate blood transfusion; at which point, the deceased explained that due to her religious disciplines she would be unable to receive foreign blood; and that despite knowing the potential, if not unavoidable outcome, she was unwilling to accept the help offered.

Before passing, the deceased also acknowledged such a position in writing; and so, at trial the appellant had argued that the charge of murder be reduced to manslaughter on grounds of diminished responsibility when refusing to accept the transfusion.

Relying upon R v Smith to establish the possibility that her refusal of help had caused her own death, and that such an unreasonable act had broken the chain of causation, the judge directed the jury so as to ask themselves if, by virtue of her religious confines, the deceased had in fact been the primary contributor of her own death, or that despite her painful and somewhat illogical choices, the stab wound itself had caused her to die, and that anything afterwards was merely academic.

After returning a verdict in favour of the deceased, the appellant appealed; after which, the Court of Appeal reminded them that a long established principle of common law, as was written in ‘Hale’s Pleas of the Crown’ (1800) was that:

“He who inflicted an injury which resulted in death could not excuse himself by pleading that his victim could have avoided death by taking greater care of himself…”

It was thus established and held, that that the primary cause of death was bleeding into the pleural cavity of the lung, that any decision taken after the fact was secondary to the victim’s passing; and that regardless of the role in which religion played, the deceased was entitled to express that belief as she saw fit.

It was for this fundamental reason that the appeal was dismissed and the murder charge upheld, while the Court reminded the parties that:

“It has long been the policy of the law that those who use violence on other people must take their victims as they find them. This in our judgment means the whole man, not just the physical man.”