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 STEER

Criminal damage to another’s property when endangering the lives of those in possession, are simultaneous acts that while seemingly joined, are determinable only by the mens rea attached.

In this matter, the defendant appealed against such a conviction on grounds that while capable of the crime itself, he could not be charged for an offence based on subjective opinion, as opposed to lawfully submitted evidence.

After falling out with his business partner, the appellant arrived at his colleague’s home brandishing a rifle; and having rung the doorbell, he then proceeded to aim and fire the gun at the bedroom window, living room window and front door.

No harm was caused to the occupiers; however, once arrested and indicted, he was charged with three offences: possession of a firearm with intent to endanger life under section 16 of the Firearms Act 1968, criminal damage to property with intent under section 1(1) of the Criminal Damage Act 1971 and criminal damage to property while endangering the lives of others, whether through recklessness or intent under section 1(2) of the 1971 Act.

Having pleaded guilty to the first two charges, the appellant argued the third was superfluous to the crime, as the damage caused to the property was not such as to endanger lives, whereas the firing of the gun was evidently sufficient.

Basing his decision on the interpretation of section 1(2) as including not just the physical damage, but the mental intention (mens rea) to endanger lives, the judge dismissed the claim and directed the jury accordingly.

This prompted the appellant to plead guilty, before seeking redress in the Court of Appeal, who allowed the appeal, before the Crown moved to seek the wisdom of the House of Lords. 

While asking the House to determine if, under section 1(2)(b) of the 1971 Act, the prosecution were obliged to establish guilt of endangering life by either the property damage, or the actions of the accused, the House held that the respondent had accepted the recklessness of his actions.

And so, despite the contention of the Crown, it was implausible to suggest that the draftsmen of the 1971 Act had imagined that section 1(2)(b) was to be construed so as to consider the actus reus of the defendant when carrying out the crime, as being sufficient to establish endangerment of life, as opposed to endangerment arising from the physical damage caused.

In the alternative, it was further suggested by the House that the respondent had become culpable for an additional charge under section 17(2) of the Firearms Act 1968, and so the application of section 1(2) of the 1971 Act was both irrelevant and by construction void of effect, while concluding that:

“Upon the true construction of section 1(2)(6) of the Criminal Damage Act 1971 the prosecution are required to prove that the danger to life resulted from the destruction of or damage to property; it is not sufficient for the prosecution to prove that it resulted from the act of the defendant which caused the destruction or damage.”

Hence, the House dismissed the appeal by a majority, while reminding the parties that:

“A person who, at the time of committing an offence under section 1 of the Act of 1971, has in his possession a firearm commits a distinct offence under section 17(2) of the Act of 1968…”

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 STEPHENSON

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 section 9(1) of the Theft Act 1968 and arson under section 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.”

R v Briggs

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.’”

R v Bates

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.’”

Shawinigan Ltd v Vokins & Co Ltd

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.”

Herrington v British Railways Board

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, while the Court reminded the parties that:

“A man is reckless when he carries out the deliberate act appreciating that there is a risk that damage to property may result from his act. It is however not the taking of every risk which could properly be classed as reckless. The risk must be one which it is in all the circumstances unreasonable for him to take.”

R v CHESHIRE

Novus actus interveniens’ or breaking the chain of causation, is a maxim often relied upon in criminal cases; however, while the principle itself is simple enough, the facts required to establish it prove far from clear.

In a case involving the potentially fatal shooting of an unwitting victim, the surgical aftercare provided, became subject to the scrutiny of the courts when death followed soon afterwards.

In late 1987, the deceased was party to an argument with the now appellant, which resulted in three shots being fired from a concealed handgun.

The first bullet was fired in the air above them, while the second and third entered the victim’s upper thigh and abdomen, shortly before the appellant fled from the scene.

Having been rushed to hospital, the surgeons cleaned up both wounds, while reconnecting the thigh bone and undertaking an extensive bowel resection in order to prevent further complications.

In the weeks following his admission, the deceased complained of breathing difficulties, at which point a tracheotomy was performed, after a simple ventilating machine had failed to properly address the problem.

Around a month later his condition deteriorated, and so investigative measures were taken to inspect the stomach wound, while the deceased began to suffer with vomitous discharge and chest infections, later resulting in fluid permeation of the lungs.

It was then, after numerous complaints and several visits by the consultant general surgeon, surgical registrar, orthopaedic registrar and finally the house surgeon, that his breathing pattern was recognised as ‘stridor’, a disturbing vibration typically associated with an obstruction of the larynx or windpipe.

Unfortunately, despite the intervention of a medical registrar and urgent cardiac massage, the deceased died as a result of mucus blockage of the windpipe resulting from excessive tracheotomy scarring; upon which, the resident pathologist concluded that:

“I give as the cause of death cardio-respiratory arrest due to gunshot wounds of the abdomen and leg.”

At the trial, the judge directed the jury to establish a conviction of recklessness on the part of the hospital, which if proven, would support the breaking of the chain of causation on grounds that the hospital had failed to properly identify the actual cause of death; and that in doing so, the appellant’s actions were now secondary to the death of the victim.

After a degree of jury deliberation, a verdict was passed in favour of the hospital, before the appellant challenged the judgment under section 23 of the Criminal Appeal Act 1968.

Presented to the Court of Appeal, consideration was given to the principle of recklessness and gross negligence, while particular reference was made to the words of Goff LJ in R v Pagett, who said:

“Even where it is necessary to direct the jury’s minds to the question of causation, it is usually enough to direct them simply that in law the accused’s act need not be the sole cause, or even the main cause, of the victim’s death, it being enough that his act contributed significantly to that result…nevertheless the intervention of a third person may be regarded as the sole cause of the victim’s death, thereby relieving the accused of criminal responsibility.”

R v Pagett

However, in R v Smith it was also argued by Parker CJ that:

“It seems to the court that if at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it in another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound.”

R v Smith

Before Lane CJ later reiterated in R v Malcherek that:

“[T]he fact that the victim has died, despite or because of medical treatment for the initial injury given by careful and skilled medical practitioners, will not exonerate the original assailant from responsibility for the death.”

R v Malcherek

With careful appreciation of the medical evidence, along with reasoned accommodation of the high threshold of surgical margins of error, the Court held that despite the alleged negligence of the hospital staff, there was simply insufficient evidence to uphold the application of ‘novus actus interveniens’.

And that even with the best medical team on hand to treat the deceased, the fundamental cause of death preceding the complication was, and remained, the shooting by the appellant; and so, on those grounds the appeal was dismissed and the original murder charge upheld, while the Court reminded the parties that:

“Whilst medical treatment unsuccessfully given to prevent the death of a victim with the care and skill of a competent medical practitioner will not amount to an intervening cause, it does not follow that treatment which falls below that standard of care and skill will amount to such a cause.”

R v LAWRENCE

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 section 1 of the Road Traffic Act 1972; while there were questions raised at the time around the exact speed at which the motorcycle was travelling, with opinions ranging from 30 -80mph.

This resulted in a lengthy trial that 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 section 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.”

R v Murphy

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, while the House reminded the parties that:

“A direction to a jury should be custom built to make the jury understand their task in relation to a particular case. Of course it must include references to the burden of proof and the respective roles of jury and judge. But it should also include a succinct but accurate summary of the issues of fact as to which a decision is required, a correct but concise summary of the evidence and arguments on both sides, and a correct statement of the inferences which the jury are entitled to draw from their particular conclusions about the primary facts.” 

R v MILLER

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, 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 section 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.

Here, the House explained that it was evident 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, while the House reminded the parties that:

“The habit of lawyers of referring to the “actus reus” suggestive as it is of action rather than inaction, is no doubt responsible for any erroneous notion that failure to act cannot give rise to criminal liability in English Law.”

R v STONE

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 there was adequate foresight of the risk posed to the dying woman while under the assumed care of her brother and mistress, and 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, before reminding the parties that:

“The defendant must be proved to have been indifferent to an obvious risk of injury to health, or actually to have foreseen the risk but to have determined nevertheless to run it.”

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