It is wrong in principle for the law to hold a person responsible for causing a result that he/she did not intend or foresee. Discuss in reference to the relevant case law.
Question 1
Gross Negligence
Criminal liability arising out of inadvertent conduct has come under increased scrutiny in the past few decades. This scrutiny stems from the lack of certainty in regards to the offence of gross negligence manslaughter. Throughout the development of the offence of gross negligence manslaughter, common law has struggled with providing a clear framework for the determination of the appropriate line between culpability and exculpation. [1]
The offence gross negligence manslaughter was developed in taking cognisance that in some instances, professionals may cause fatal harm to people to whom they owe a duty of care for failing to exercise reasonable caution. Following this breach, the matter becomes one of interest of the state. Lord Hewart enunciated this position in the case of R v Bateman, where the Accused had attempted to deliver a breech baby using forceps and then tried to turn the baby manually. However, this attempt resulted in the stillbirth of the baby and the death of the mother. The court of first instance found Dr Bateman to be guilty of gross negligence by manslaughter. However, this conviction was quashed by the court of Appeal where Lord Hewart Posited, “in the civil action if it is proved that A fell short of the standard of reasonable care required by law, it matters not how far he fell short of that standard. The extent of his liability depends not on the degree of negligence, but on the amount of damage done. On the contrary, in the criminal court, the amount and degree of negligence are the determining questions. There must be mens rea.” [2]
This need to consider mens rea was reaffirmed in the case of R v Adomako, where the court developed the criteria for determining grossness to be:
- The circumstances were such that a reasonable person put in the defendant’s position would have foreseen a serious and obvious risk of death arising from the actions or omissions of the defendant
- That the breach of duty was at all times reprehensible and fell so fear below the standards to be expected of a person in the defendant’s position given his qualifications, experience and responsibility.
While the court was on point in providing a framework for determining gross conduct, it failed to clearly set a framework for determining what turns simple negligence into gross negligence attracting criminal liability. Void of this distinction, the court left it upon the jury to determine whether the extent to which the defendants conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal.
Therefore, the criminalisation of gross negligence manslaughter is contrary to the fundamental principals of common law which explicitly require all crimes to be certain. Lord Binningham reiterates this position in the case of Rimmington and Goldstein where he posited, “no one should be punished under a law unless it is sufficiently clear and certain to enable him to know what conduct is forbidden before he does it.”[3] Further, the lack of legal certainty is contrary to Article 7 of the European Convention on Human Rights, which explicitly prohibits punishment, if the crime cannot be sufficiently defined to enable a defendant to have prior knowledge of it.
Therefore, the attempt by the courts to delegate the powers of determining criminal liability to the jury is also contrary to the fundamental principles of criminal law. This is because the function of the jury is limited to determining questions of fact and not of law. In light of the foregoing, there needs to be a radical change in the offence of gross negligence manslaughter to ensure that the offence is certain and clearly identifiable. More so, it is important to ensure that the offense appreciates the intricacies of the medical profession to ensure that the offence does not create a position where doctors are reluctant to engage parents out of the fear of potential liability. [4]
SECTION B
Answer at least ONE question from this section.
- Shanelle has been married for several years with Tom. One day, the organise a party to celebrate the ending of the lockdown following Covid-19 pandemic. They invite several friends. After a few hours at the party, Shanelle and Yuri, her employer, end up lounging in the couple’s bedroom. Yuri always fancied Shanelle, so he is convinced that she will not refuse his sexual advances. Shanelle submits and they have sexual intercourse. Tom then comes into the room; he catches them in the act. He immediately runs towards Shanelle. First, Tom gives Yuri a punch in the face breaking his nose, and then he tightens his hands around Shanelle’s throat. She dies from asphyxia.
Discuss the potential liability of Yuri and Tom.
Question 2
The appropriateness of imposing criminal liability for unintended consequences has been the subject of debate amongst criminal law scholars for quite some time. The main point of departure for this argument stems from the fact that criminal law seeks to punish illegal actions that are intended. It is generally agreed that the core elements of any crime are mens rea and actus reus. Mens rea refers to the guilty state of mind; this requirement is justified by the fact that it would be wrong for society to punish those who innocently cause harm. The second requirement is actus reus which refers to the guilty act or rather an overt act in furtherance of a crime.
As such, criminal liability is only justified in instances where the resulting crime was intended. However, that is not to say that the negligent conduct excuses a defendant from liability. For example, Criminal law has developed to deem liability from negligent conduct, whereas it is important to ensure that the principles of criminal law are adhered to, it is equally important to protect the public interests from any harm. This aspect was illustrated in the case of Callow v Tillstone; where a butcher was convicted for selling unfit meat despite the fact that he had the meat certified as safe by a vet before the sale. His conviction was upheld as an offence of strict liability[5].
It should be noted that liability for unintended consequences is only limited to strict liability offences, and can be escaped if it can be proved that the defendant exercised reasonable caution to avert the consequence. On the other hand, absolute offences require strict proof of mens rea and actus reus. Following this classification, it is imperative to note that liability for unintended consequences is justified only if the offence in question is against public policy.
Question 3
Potential Liability
Yuri
As general consensual sexual relations are not criminalized. In fact, Criminal liability for sexual conduct is limited to instances where penetration occurs without the consent of one party. [6]Given the fact scenario relating to Yuri and Shanelle, the primary question in the determination of any criminal liability is limited to if Shanelle consented to engaging in sexual intercourse with Yuri.
Of key importance to note is that both Yuri and Shanelle were adults and that there is no indication that Shanelle lacked the mental faculties to either accept or refuse the sexual advances made towards her. What remains is that the decision to engage in sex was consensual and as such does not create any liability on the part of Yuri.
Further, it is immaterial that Shanelle was married at the time of the alleged event, more so, it is immaterial that Yuri was Shanelle’s employer. This is because the definition of sexual harassment under the Equality Act 2010, limits the definition of sexual harassment to unwanted behaviour of a sexual nature which has the effect of violating the dignity, intimidating, degrading or humiliating or creates a hostile or offensive environment for a victim. The keyword in this definition is ‘unwanted’; taking cognisance of the fact that Shanelle consented to having sexual intercourse negates any liability on the part of Yuri. As such, in the eyes of the law, Yuri is not liable for breaching any offence.
Tom
Given the facts of the case, Tom is likely to be charged with the offence of Assault causing grievous bodily harm contrary to section 20 of the Offences Against the Person Act, for punching Yuri and breaking his neck. This determination is based on the precedent set in DPP v Smith, which maintains that grievous bodily harm refers to serious harm and further, by Golding [2014], the court indicated that the harm need not be permanent or dangerous.[7]
However, it should be noted that for Assault causing grievous bodily harm to attract liability requires the prosecution to prove mens rea(guilty mind) and actus reus.[8] Given the facts of the case, it is quite possible that Tom lacks the mens rea element because the action of hitting Yuri was triggered by him walking in on him and his wife having sex. The precedent set in the case of R v Clarke, is relevant in this determination because it is safe to assume that seeing his wife having sex with Yuri resulted in Tom being confused enough to be unable to reason correctly, thereby negating any possibility of him being held liable for assault.[9]
The same can be said for liability accruing from the action of Choking Shanelle to death. More so, because the law defines murder as the unlawful and premeditated killing of a human being by another. Of key importance in this determination is that the death of Shanelle was not premeditated and that it happened in the heat of the moment. However, Tom will most likely be found liable under Manslaughter if he can prove loss of control triggered by the action of him walking in on his wife having sexual intercourse with her boss.
Lola Smith
Birkbeck, University of London
07503614783
londonsway4@gmail.com
