R v Adomako (1994)

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 Stephenson (1979)

English Criminal Law

R v Stephenson
‘The Hay Bales’ by Roger Bansemer

Subjective ‘recklessness’ and the complexities of mental illness, are given equal weight when a charge of arson is levelled against a man who while apologetic for his actions, was astute enough to undertake, and become convicted of burglary, an act which in itself paradoxically requires a degree of foreseeability.

In the winter of 1977, the appellant trespassed upon farmland before climbing into a large straw stack to fall asleep. Suffering from the cold, the appellant decided to use the straw to build a small fire from which to keep warm. Unfortunately the fire quickly spread, before catching light to a Nissen hut containing farming equipment, resulting in damages of around £3,500.

Having fled the scene, he was later arrested, whereupon he immediately apologised and explained that the whole incident was an accident, and that he never intended to cause such destruction. When indicted, he was charged with burglary under s.9(1) of the Theft Act 1968 and arson under s.1(1)(3) of the Criminal Damage Act 1971, yet at trial, the appellant failed to give any evidence aside from the medical testimony of a consultant psychiatrist, who confirmed that the appellant was suffering form schizophrenia, and as such, was unable to appreciate the obvious risks attached to starting a fire in such a hazardous environment.

When directing the jury, the judge used the phrase:

“[A] man is reckless if he realises that there is a risk, but nevertheless presses on regardless.”

While reiterating the words of the Appeal Court in an earlier case, which were:

“A man is reckless in the sense required (that is to say, in the sense which leads to conviction) when he carried out a deliberate act knowing or closing his mind to the obvious fact that there is some risk of damage resulting from that act, but nevertheless continuing in the performance of that act.”

At which point the jury returned a guilty verdict on both counts, whereupon the appellant took issue in the Court of Appeal on grounds of severe misdirection when applying the subjective principle of recklessness. Here, the definition of recklessness in R v Briggs was held as being that:

“A man is reckless in the sense required when he carries out a deliberate act knowing that there is some risk of damage resulting from that act but nevertheless continues in the performance of that act.”

While in the Law Commission Working Paper No.31 (Codification of the Criminal Law: General Principles. The Mental Element in Crime) it was explained how:

“A person is reckless if, (a) knowing that there is a risk that an event may result from his conduct or that a circumstance may exist, he takes that risk, and (b) it is unreasonable for him to take it having regard to the degree and nature of the risk which he knows to be present.”

Perhaps more importantly, the root definition of recklessness was outlined by Donovan J in R v Bates, when he said:

“The ordinary meaning of the word ‘reckless’ in the English language is ‘careless,’ ‘heedless,’ ‘inattentive to duty.’ Literally, of course, it means ‘without reck.’ ‘Reck’ is simply an old English word, now, perhaps, obsolete, meaning ‘heed,’ ‘concern,’ or ‘care.’”

Contrastingly, in Shawinigan Ltd v Vokins & Co Ltd the objective purpose of recklessness was defined by Megaw J who said:

“In my view, ‘reckless’ means grossly careless. Recklessness is gross carelessness – the doing of something which in fact involves a risk, whether the doer realises it or not; and the risk being such, having regard to all the circumstances, that the taking of that risk would be described as ‘reckless.’”

Yet in the House of Lords, Salmon J had recently promoted the subjective definition in Herrington v British Railways Board when he explained how:

“Recklessness has, in my opinion, a subjective meaning: it implies culpability. An action which would be reckless if done by a man with adequate knowledge, skill or resources might not be reckless if done by a man with less appreciation of or ability to deal with the situation.”

And so it was with full consideration of the effects and medico-legal opinion of schizophrenia, coupled with the perhaps ironically unstable history behind ‘recklessness’, that the Court found the arson conviction unsafe when knowing the jury were unable to wholly determine the mental limitations of the appellant. It was therefore on that basis that the burglary charge remained valid, while the arson charge was quashed on principles of natural justice.

R v Lawrence (1982)

English Criminal Law

R v Lawrence
‘Ducati Scrambler Cafe Racer’ by Unknown Artist

Reckless driving, while contextually similar to the criminal charge of recklessness, was at the time of this case, still unclear in terms of the mens rea of drivers brought to trial. Unfortunately for the victim’s family, this uncertainty resulted in an acquittal from the offence on grounds of a confused and thereby ineffective, jury.

In 1979, a couple took a visit to their local off-licence in order to purchase some soft drinks for their children. Parking opposite the shop, the mother entered the store, before standing at the kerbside in preparation for crossing back over the road. Moments after blowing her husband a kiss, the victim stepped into the road before being struck by one of two motorcycles, dying instantly, while being carried at speed on the front of the driver’s vehicle.

Upon indictment, the defendant was convicted by a majority jury of reckless driving under s.1 of the Road Traffic Act 1972. There were also questions raised at the time around the exact speed at which the motorcycle was travelling, with opinions ranging from 30 -80mph, resulting in a lengthy trial, and one in which despite an absolute conviction, left the jury seeking clarification as to exactly what reckless driving required, and whether there was a need to appreciate the mindset of the defendant at the time both before, and during, the time of the offence.

Upon appeal, the Court quashed the conviction upon grounds that where uniform agreement could not be found as to how reckless driving existed under the 1972 Act, there could be no established verdict beyond any reasonable doubt. In response, the regional Chief Constable appealed on behalf of the Crown to the House of Lords, while trying to find agreement as to what s.1 of the Road Traffic Act 1972 truly meant.

Referring to the meaning of recklessness as defined by R v Murphy, the courts recognised that:

“A driver is guilty of driving recklessly if he deliberately disregards the obligation to drive with due care and attention or is indifferent as to whether or not he does so and thereby creates a risk of an accident which a driver driving with due care and attention would not create.”

However, in cases such as R v Caldwell, the jury were required to consider not only the actus reus (actions) of the accused, but the mens rea (mindset) prior to the act of arson duly charged. This by convention, had not been something applied during road traffic accidents, therefore the jury in this trial were left confused as to whether an objective evaluation was in itself sufficient, or whether subjective consideration was needed to fully contain the origin of recklessness, as opposed to arguments over which speed the defendant was travelling when the offence occurred.

Though a comprehensive chronology of reckless driving within the road traffic offences, the House held that there needed to be two elements to a conviction of recklessness, namely:

(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.”

Therefore it was left to the jury to determine if, as hypothetical road users themselves, they felt that a defendant did knowingly choose to take charge of a vehicle with the intention to cause harm, as opposed to harm being caused by means beyond their control. This by effect, also rendered the Murphy direction null and void, while paving the way clear for expeditious trials under similar circumstances.

R v Miller (1983)

English Criminal Law

R v Miller
‘Carrying Mattresses’ by Stanley Spencer

Actus reus and mens rea, are two very widely used criminal law maxims that once were essential for the clarification of intention, but sadly over the passage of time, the former has become victim to legal abuses by lawyers seeking to bend a virtue that perhaps warrants review after hundreds of years of application.

In this matter, the accused was a homeless man, who after drinking a reasonable amount of alcohol, entered a vacant home, before taking up occupancy in an empty room. After lighting a cigarette, he then fell asleep on a mattress, at which point the cigarette began to ignite the mattress fibres, thereby causing it to slowly smoulder.

Upon waking, the appellant saw what was happening, but chose to simply get up from the mattress and walk into an adjacent room, before returning to sleep. It was not until the arrival of the local fire brigade, that he awoke again to discover that the room he had since left was now ablaze, and that significant fire damage had resulted from his failure to extinguish the burning mattress.

Upon summary, the appellant stood accused of recklessness causing criminal damage to another’s property, that in turn led to a conviction of arson under s.1(1)(3) of the Criminal Damage Act 1971. While under appeal, it was argued that both mens rea and actus reus are key elements to a criminal conviction, and that because the appellant had left the room, he could not be found liable through inaction, as opposed to action (actus reus), while further arguing that he was under no obligation to extinguish the burning mattress, and that his mens rea was ultimately irrelevant to the proceeding fire.

The crux of this defence misdirection is that while actus reus explores the actions of a defendant, the reality of life is that inaction by its own virtue, is an equally destructive process when the party in question can see very clearly that it was his previous actions that initiated the root offence, and that there were sufficient steps available to the defendant to prevent the damage from spreading (including seeking the assistance of third parties to that effect). Therefore, a defence based upon the interpretation of a word does nothing to circumvent the social responsibility of those faced with potentially (yet avoidable) damaging situations.

While the appeal was dismissed, it was again put before the House of Lords who listened intently to a bargaining application for the quashing of an arson charge, before succinctly explaining that with no quarter for doubt, it was evident that the appellant had elected to recklessly avoid his personal obligation to prevent the fire from growing, in favour of distancing himself from his original action, regardless of the foreseeable consequences that followed.

R v Stone; R v Dobinson (1976)

English Criminal Law

R v Stone (John Edward)
‘The Earth (Zemliia)’ by Bohdan Pevny

In this landmark criminal law case, the distinction between indifference to, and perception of risk, are carefully weighed, in order to appreciate that when compared for their relevance to recklessness, the outcome remains the same, despite differing routes to dire consequences.

In 1972, an eccentric sibling moved into the home of her older disabled brother after a falling out with her sister. The terms of the living arrangement was that of a landlord and tenant, in so much that rent was paid and each were free to live their lives independently of one another. While the brother lived with his mistress and housekeeper along with his mentally challenged son, the sister occupied the front room of the home and maintained a high degree of privacy, despite openly suffering from anorexia nervosa (although undiagnosed at the time); a condition that precluded regular meals in favour of a low bodyweight, that in many instances was known to result in premature death, or at best, extreme immobility.

After a period of almost nearly three years, the sister’s health deteriorated to a point that she became permanently bedridden and unable to clean or feed herself. Despite repeated express concerns from the mistress to the brother regards his sister’s condition, there were no attempts made by the either party to extend their efforts in seeking medical help beyond that of unsuccessfully trying to locate her doctor. When matters continued with no real intervention, the now seriously ill woman was eventually found dead in her bed, amidst evidence that no care had been taken to tend to her toiletry needs or physical health requirements, prior to her death.

When reported to the police, the two defendants were summoned and convicted of manslaughter upon grounds of a breach of duty of care through recklessness, whereupon the two parties appealed under the presumption of diminished responsibility. When considered under appeal, the judges found that irrespective of whether the couple claimed to have taken limited steps to get the deceased help, there was insufficient evidence to avoid the conviction of recklessness, as (i) there was adequate foresight of the risk posed to the dying woman while under the assumed care of her brother and mistress, and (ii) that the conduct taken to redress such a risk, was made with little regard to the seriousness of her condition.

Ultimately, and when taken in context, the court felt that it mattered not which route had been taken, only that the destination resulted in her death; and that both parties had been made aware of possible options, yet continued to ignore the duty bestowed upon those assigned the care of a vulnerable person, in particular a close relative with a history of self-neglect and malnutrition.

Criminal Law Terminology

Insight | February 2017

Criminal Law Terminology
Image: ‘Empty Kingdom’ by Sean Phillips

A crime can be defined both as any wrongful act causing harm to another person, or damage to another’s property, and any act that contravenes those proscribed by common law or statute. Similarly, criminal acts are actions requiring either rehabilitation of the offender and compensation for damages to property, or the victim’s psychological state,  which can also include incarceration in more serious cases (this can also be observed from a moral perspective inasmuch as actions that violate the rights and duties owed to the community), while the perception of criminal behaviour is also subject to various political and social factors, therefore can vary across nations.

A criminal definition is necessary in order to help distinguish a moral wrong from a civil wrong, and so criminal activity tends to be associated with some element of punishment when bought to trial, whereas a civil wrong is not considered an act of deviance, but a conflict of perspectives or contractual obligations.

The purpose of criminal law is to distinguish between the two previously mentioned wrongs, in order to help protect the public and the State from acts of aggression, or violent rebuttal; while the objectives of criminal sentencing are to allow an individual the opportunity to reflect upon any criminal act undertaken, and to help the public observe justice being done when miscarriages occur. In addition, the larger aim of sentencing is to maintain public order and minimise anxiety that could adversely affect productivity, and to help reduce crime through deviant punishment and protection of the public. Shown below are some common phrases used within criminal law:

Thin Skull Rule

This phrase means that despite any unforeseen vulnerabilities in a victim being bought to light during trial (or at case preparation stage), the amount of punishment or (tortious) compensation would remain as full as it would be should, or had, the victims been ‘normal’. An excellent case for this is R v Hayward, where the victim to a brutal domestic beating died of natural causes, yet the offender was held criminally liable.

Act of God (or Naturally Occurring Interventions)

These would constitute naturally occurring disasters such as floods, storms, bolts of lightening etc. that prevent criminal liability being placed upon a person.

Third-Party Interventions

Typically a lawsuit procedure, where the court allows a third person not originally part of the case, to become involved through joining either the plaintiff or defendant.

Medical Interventions

A phrase used to describe a medical procedure serving as an intervening act, which could break the chain of causality when establishing the cause of a victim’s death or serious injury. A case reference for this would be R v Smith, which involved the dropping of an injured solider on the way to hospital, an act alleged to have contributed to his death.

Breaking the Chain of Causation

A process whereby the manifestation of a victim’s actions or moral beliefs, exacerbate the wounding (and in some cases instigation of a death). A useful case for this is R v Blaue, where a Jehova’s witness refused a blood transfusion after being stabbed, thereby legally dying as a result of blood loss, instead of knife inflicted wounds.

Defendants Conduct Culpable

A term used where a defendant engages in set of behaviours or actions, that in and of themselves, bring harm to them, without the actions or inactions of another. In this scenario, a person or defendant cannot readily portray themselves as a victim, rather lacking mental capacity or sound mind and judgment. A case example would be R v Williams, where the victim was killed by stepping in front of a moving vehicle driven by an uninsured and unqualified driver, resulting in their criminal liability.

Actus Reus

The part of a crime that is concerned with identifying the conduct that criminal law deems harmful. It also describes what the defendant must be proven to have done (or failed to do) in circumstances that produce consequences attributable to moral guilt. The case of R v Miller provides that when waking up drunk to find his lit cigarette had started a fire in the home in which he was staying, the defendant simply moved rooms, rather than attempting to extinguish the fire; translating that his actions resulted in an act of arson.

Mens Rea

A term used to describe the element in a criminal offence relating to the defendant’s mental state. Examples of mens rea include intention, recklessness, negligence, dishonesty or knowledge. This legal principle plays a crucial role in ensuring that only blameworthy defendants are punished for their crimes, however, mens rea is not equivalent to moral guilt. A useful case example is Collins v Wilcockwhere it was found that when attempting to question a member of the public, a police officer grabbed their arm with the aim of physically restraining and harming them, as opposed to getting their attention.

Intention

How a defendant determines a consequence of his actions when he acts with the aim, or purpose, of producing that consequence. The case of R v Haigh showed that while the appeal jury had clear evidence a mother had intended to smother her child, a lack of mens rea reduced the verdict from murder to manslaughter.

Recklessness

When a defendant was aware of a risk attached to their conduct, and that the risk was an unreasonable one to take. A useful case for this is R v G, where the judges held that a minor was not capable of possessing the reasoning ability of an adult.

Negligence

When a defendant has behaved in way a reasonable person would not (see also recklessness). A perhaps extreme example of this is R v Adomako, where an anaesthetist failed to observe an oxygen supply disconnection that resulted in his patient’s death.

Novus Actus Interveniens 

A term used to describe a break in the chain of causation bought about by a new action, that alters the effect of injury (or death) of a person in such a way that alters the identity of the person culpable; or a free and voluntary act of a third party, that renders the original act a substantial and operating cause of injury or death. An example of this would be R v Jordan, where a stabbing victim had a fatal allergic reaction to a hospital administered drug, therefore altering the cause of injury and subsequent death; and in R v Kennedy, where the supply of heroin did not constitute liability for a users death.