Roger will argue that Steve’s escape attempt broke the chain of causation. However it was established in R v Roberts8 that escape attempts will not break the chain provided that it “could reasonably have been foreseen as the consequence of D’s action”9. Roberts was approved in R v Williams and R v Davis10 (CA) where it was held that “the jury should bear in mind any particular characteristic of the victim and the fact that in the agony of the moment he may act without thought or deliberation.”
It would appear Steve’s reaction in jumping over the wall was within a range of responses that was reasonably foreseeable. However the threat level would need to be examined in more detail. The word ‘attack’ in its grammatical context could mean a verbal or physical attack; so for e.g. would jumping over the wall in reaction to a verbal tirade be reasonably foreseeable?
Further still Roger will argue that Dr Martin’s negligence constituted a novus actus interveniens as in R v Jordan11 where the medical treatment was ‘palpably wrong’. However this is rare and negligent treatment will not break the chain of causation12 unless “the treatment was so independent of his acts (D’s), and in itself so potent in causing death, that they regard the contribution made his acts as insignificant”13. This affirmed the decision in R v Smith14 where Lord Parker CJ explained “only if it can be said that the original wounding is merely a setting in which another cause operate can it be said that the death does not result from the wound.”
- as explained by Herring pg 104
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R v Jordan (1956) 40 Cr App R 152; see also R v Cheshire [1991] 3 All ER 670
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R v Roberts (1971) 56 Cr App R 95
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Lord Justice Stephenson in Roberts
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R v Williams, R v Davis [1992] 2 All ER 183 (CA)
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R v Jordan (1956) 40 Cr App R 152
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R v Smith [1959] 2 All ER 193, see also R v Cheshire, R v McKechnie (1991) 94 Cr App 51
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Bedlam LJ in R v Cheshire
- R v Smith [1959] 2 All ER 193
There is strong prima facie to suggest that Dr Martin’s treatment has not broken the chain. Steve died of heart failure which was the operating and substantial cause of death. Dr Martin’s failure to read the notes constitutes an omission, and it is submitted that omissions of a third party cannot break the chain of causation15.
Unlawful and Dangerous Act Manslaughter
If it is found that Roger has caused Steve’s death, then the second area of law that this question concerns is that of Unlawful and Dangerous Act Manslaughter (UDAM).
In cases such as this where D lacks the mens rea for murder, the murder charge is substituted with one of involuntary manslaughter. Roger will most likely be charged with UDA/Constructive manslaughter; the term indicating that the crime is constructed from liability for a lesser crime16.
The HL undertook a thorough examination of UDAM in Attorney-General’s Reference (No.3 of 1994) [1998] AC 245 (HL), in which Lord Hope of Craighead summarised the essential elements as this “The only questions which need to be addressed are (1) whether the act was done intentionally, (2) whether it was unlawful, (3) whether it was also dangerous because it was likely to cause harm to somebody and (4) whether that unlawful and dangerous act caused death.”
The first point seems to require only that D’s conduct was ‘voluntary and deliberate’. There is no reason to suggest Roger was acting in any other way than voluntary and deliberate; he therefore satisfies the first test.
- as explained by Herring pg 111
- as explained by Herring pg 275.
Secondly the unlawful act must be a crime17. It is not enough for the act to be a tort as in R v Franklin18 “the unlawful act must be a crime19” and the prosecution must show that D had the actus reus and mens rea20. However offences against property will suffice21.
Lastly a criminal omission, however deliberate will not satisfy the second test; there must be an act22.
In this case the unlawful act will be presented as a technical assault or battery. The definition of assault is ‘any act by which D intentionally or recklessly causes V to apprehend immediate and unlawful personal violence’ as in Fagan v Metropolitan Police Commission23. The definition of a battery is ‘any act by which D intentionally or recklessly inflicts unlawful personal violence upon V24.’
If Roger’s attack was verbal only it could still constitute a technical assault and would depend on Steve’s state of mind25. The decision in R v Ireland26 also makes it clear that words alone can constitute an assault. The fact that Steve tried to escape would suggest that he did fear immediate unlawful personal violence and if Roger intended this, then he guilty of the crime of assault; or assault and battery if he inflicted unlawful personal violence on Steve; this would include mere touching27.
-
R v Jennings [1990] Crim LR 588 the prosecution should make it clear which crime has been committed
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R v Franklin (1883) 15 Cox CC 163
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R v Franklin, R v Lamb [1967] 2 QB 981, R v Scarlett [1993] 4 All ER 629
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R v Slingsby [1995] Crim LR 570; see also R v Lamb
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R v Goodfellow (1986) 83 Cr App Rep 23; R v Newbury (1977) (HL) although the HL didn’t state which was the lesser crime, which seems strange it was most likely Criminal Damage.
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R v Lowe [1973] QB 702; R v Kahn [1998] Crim LR 830
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Fagan v Commissioner of Police of the Metropolis [1969] 1 QB 439; was affirmed by the HL in R v Savage, R v Parmenter [1992] 1 AC 669
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Fagan ; see also R v Thomas (1985) 81 Cr App R 331
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Logdon v DPP [1976] Crim LR 121
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R v Ireland [1998] AC 147
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R v Thomas (1985) 81 Cr App R 331
Was the unlawful act dangerous? Edmund Davies J (CA) stated in R v Church28 “The 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”.
Not just any act will suffice; the unlawful act must be dangerous and this is judged objectively meaning it is a question of whether the reasonable person would appreciate the act was dangerous29. This point was emphasised by Lord Salmon in R v Newbury30 “The question is whether the sober and reasonable person possessing the knowledge of D at the time of committing the unlawful act as likely to cause some harm to V”.
This is more subjective and means the reasonable person can be invested with knowledge of characteristics which make V vulnerable; but only if they known to D at the time the crime was committed, as in R V Dawson31. The case of R v Watson32 developed this further and the CA said the sober and reasonable could be invested with knowledge of V’s age and frailty during the unlawful act.
For the purposes of dangerousness, ‘harm’ means physical harm; the reasonably foreseeable risk of emotional disturbance produced by fright or terror is not enough; but the reasonably foreseeable risk of physical harm (such as a shock or heart attack) caused by emotional disturbance is 33.
When deciding whether Roger’s act was dangerous the most important factor would be did Roger know of Steve’s heart defect? If he did, then it could be easily established that any sort of attack would be dangerous34.
-
R v Church [1966] 1 QB 59
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R v Church [1966] 1 QB 59
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R v Newbury (1977)
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R v Dawson; R v Nolan; R v Walmsley (1985) 81 Cr App Rep 150 (CA) - where had the facts been different and they had known of V’s weak heart, then it would have been held that the act was dangerous.
-
R v Watson [1989] 2 All ER 865
-
R v Dawson; R v Nolan; R v Walmsley (1985) 81 Cr App Rep 150 (CA); extract from Halsbury’s Laws of England, Criminal Law, Evidence and Procedure, Volume II (1), 2006, para 99
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R v Dawson; R v Nolan; R v Walmsley (1985) 81 Cr App Rep 150 (CA)
However if he did not know, it would be harder to prove the dangerousness. It could be possible that during the attack Steve informed Roger of his weak heart; the reasonable person could then be invested with that knowledge and would accept the act as dangerous35. Steve suffered terror and it could be reasonable foreseeable that he may go into shock or have a heart attack as a result of that terror.
Gross Negligence Manslaughter
The third area of law this question concerns is the possible charge of Gross Negligence Manslaughter (GNM) of Dr Martin. GNM is the second form of involuntary manslaughter; where D’s conduct, act or omission; which is not otherwise unlawful, causes V’s death; D may be liable for manslaughter by gross negligence.
Lord Hewart set out the principles in R v Bateman36 saying the prosecution had to prove civil negligence and satisfy the jury that “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 of punishment.”
In the 1980’s gross negligence gave way to Caldwell recklessness manslaughter37. However in 1995 the HL reverted back to GNM in the leading case R v Adomako38. Lord Mackay stated the basis of the law as follows “…the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore a crime.”
-
R v Watson [1989] 2 All ER 865
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R v Bateman (1925) 19 Cr App R 8
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R v Seymour [1983] 2 AC 493
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R v Adomako [1995] 1 AC 171
The principles from Adomako can be broken down into four tests. Firstly, did D owe a duty of care? The CA in R v Wacker39 confirmed that the ‘duty of care’ is usually to be given the meaning it has in the tort of negligence. Whether there is a duty of care is a question for the jury40. It would be a simple task for the jury to find Dr Martin had a duty of care to Steve; all doctors owe a duty to their patients.
Secondly did D breach a duty of care? The jury must ask whether Dr Martin’s actions fell below the standard expected of the reasonable doctor. A jury should only “convict a doctor of causing a death by negligence if they think he did something which no reasonably skilled doctor should have done41”. There is no doubt that Dr Martin breached his duty of care to Steve; as no reasonable doctor would have failed to read the medical notes of a patient.
Thirdly did the breach cause the death? For this test it would be difficult to establish that Dr Martin’s omission caused Steve’s death as it was not the operating and substantial cause; even though ‘but for’ his omission Steve may have lived.
Lastly; should the breach be characterised as grossly negligent and therefore a crime? Was Dr Martin’s omission so bad as to justify a criminal conviction? This is a question purely for the jury to decide and leaves them a wide discretion. This can often lead to inconsistency; but the courts try to leave GNM as vague, broad and undefined as possible to catch people out. As such it has come under criticism for being so vague that it contravenes Article 5 of the European Convention of Human Rights42.
Furthermore the CA in Attorney – General’s Reference (No.2 of 1999)43 made it clear that it is not necessary to prove that Dr Martin foresaw a risk of death.
-
R v Wacker [2003] Crim LR 108 (CA)
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R v Willoughby [2004] EWCA Crim 3365
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Lord Mackay of Clashfern LC in Adomako
-
R v Misra [2204] EWCA Crim 2375
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Attorney – General’s Reference (No.2 of 1999 [2000] QB 796 (CA)
In conclusion then there is strong prima facie to show a causal link between Roger’s attack and Steve’s death; with Roger most likely being charged with unlawful and dangerous act manslaughter. He would seem to satisfy the four tests for UDA but the decision is down to the jury. As for Dr Martin, depending on whether or not the jury find that he has caused Steve’s death, which is unlikely, then he would be charged with gross negligence manslaughter and even though there would appear to be insufficient cause for conviction; again the decision is one for the jury.
Bibliography
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Jonathan Herring, Criminal Law, 2nd Edition, Oxford University Press, 2006
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Phil Harris, An Introduction To Law, 7th Edition, Cambridge University Press, 2007
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David Omerod, Smith & Hogan Criminal Law, 11th Edition, Oxford University Press, 2005
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Nicola Padfield, Criminal Law, 5th Edition, Oxford University Press, 2006
