Law Essay: Omission

In general, the criminal law prohibits the doing of harm but does not impose criminal liability for an omission. However, there are justifiable exceptions to this general principle.

Assess the truth of this statement by reference to situations where a failure to act may result in criminal liability

Criminal liability in criminal law accepts that a person must commit an unlawful act with mens rea. However criminal law accepts that in certain circumstances a person who fails to act where there is a legal duty of care and does something negligently can also be liable. This is called omission.

Some countries have a Good Samaritan law which means that all citizens have a duty to help one another in emergency situations. However British judges do not like this because it implies that the defendant ought to have acted and to impose a duty is to strike at the defendant’s freedom. Instead judges and parliament have established some legal duties of care in certain types of relationships through common law and statutes.

An example of statutory duty which the courts applied comes from the Children and Young Persons Act 1991 which states that parents have a legal duty of care towards their children, to feed and cloth them. Before the 1991 act the case of Gibbins and Proctor established that there is a duty of care where there is a relationship. This case is an example of the parent-child relationship as the defendant’s failure to feed his daughter was enough for the criminal liability for the actus reus of murder.

Other cases in which he common law judges have created some legal duties include the case of Pitwood, which illustrates a contractual duty. The defendant was a railway keeper who omitted to shut the gates and was found guilty of the manslaughter when a person was hit and killed by a train. The court held that because of the nature of his job, his duty was not only towards his employer but to others who used the gate.

There can also be a duty through ones official position. This is rare but occurred in Dytham where a police officer saw a man being beaten up and did nothing to help. He was found guilty of neglecting to perform his duty.

The defendant can also be liable where the duty was undertaken voluntarily. In Stone and Dobinson, Dobinson had voluntarily undertaken to look after Stone’s elderly sister and so was found guilty of her manslaughter when she died from malnutrition. The Court of Appeal said that by taking her into their home they had agreed to take care of her.

Lastly, there is a duty where the defendant set in motion a chain of events. This was created by Miller where the defendants mattress caught fire and the defendant did nothing. The house caught fire and the defendant was convicted of arson as he knew there was a dangerous situation but failed to take any steps to deal with it.

However it can be difficult to decide when a duty of care exists. It is normally the judge who determines whether there is a duty of care and the jury decide if there is a duty of care and if that duty has been breached. This means that the law is capable of expanding to cover more situations as stated obiter in Khan and Khan where the defendant had supplied heroin to a new user who took it in their presence and collapsed. The defendants left her alone and by the time they returned to the flat she had died. However this can be seen to make the law uncertain.

Secondly, it can seem harsh that someone who accepts an adult into their home has assumed a duty towards them as adults are generally considered to be responsible for their own life. The argument for this is that if the adult is vulnerable then the adult taking care of them is in the best position to ensure potential harm is avoided. This duty can be fulfilled simply by summoning help and the defendants in Stone and Dobinson were found guilty because they failed to do so.

Lastly many statutes impose duties and many of the laws in this area create strict liability offences. The justification for this is that it is for the greater good of society. One example is the Domestic violence, Crime and Victims act which makes all household members liable for failure to protect a child. This makes it easier to succeed in prosecution which is important because the law should provide children and vulnerable adults with as much protection as possible.

Law Essay: Causation

‘Liability in criminal law normally requires the prosecution to establish that the accused has caused the relevant prohibited consequences to occur. For instance, in homicide that the accused caused the victim’s death.’

Explain by reference to decided cases how the courts have approached the requirement of causation

Causation is usually raised when result crimes are committed and means that the result of that crime must be proved by the prosecution to have been caused by the defendants act. The prosecution has to show that the defendants conduct was the factual and legal cause of the consequence and there was no intervening act to break the chain of causation.

The factual cause is when the consequence would not have happened ‘but for’ the defendants conduct. This can be seen in the case of Pagett. Pagett was found guilty of manslaughter because the girl would not have died but for him using her as a shield from police bullets.

In some cases there may be more than one act contributing to the consequence and some of these acts may be done by people other than the defendant. However the rule is that the defendant can be guilty if his conduct was more than a minimal cause of the consequence. The defendants conduct doesn’t need to be a substantial cause. In the case of Kimsey the defendant was in a high speed car chase with a friend when he lost control was not very clear however the defendant was still found guilty of causing death by dangerous driving. The Court of Appeal upheld this conviction saying that the defendant was guilty as long as there was more than a slight or trifling link.

If the result of the crime is caused by an intervening act which is sufficiently independent of the defendants act and not foreseeable then the defendant will not be liable. This occurred in Jordan where the victim was stabbed but healing well. However, he had a severe allergic reaction to large dose of medicine he received and died. The defendant was found not guilty because the cause of the victim’s death was unconnected with the defendants act and so the chain of causation was broken.

The chain of causation can be broken by an act of a third party, the victim’s own act or a natural but unpredictable event. In Williams a hitchhiker jumped from the defendant’s car because the defendant was trying to steal his wallet and died from head injuries. The defendant was found not guilty and the Court of Appeal said the victims act had to be foreseeable and in proportion to the threat. If the victims act is unreasonable then the chain of causation is broken.

Where the result is caused by a combination of the defendants act and an intervening act and the defendants act remains a substantial cause then the defendant will be liable. This can be seen in Smith where the victim was stabbed and poor medical treatment made the injury worse and he died. Despite the poor medical treatment lessening the victim’s chances of recovery by 75%, the defendant was still found guilty of murder. This is because the defendants act was still a substantial and operating cause at the time of death.

Medical treatment is unlikely to break the chain of causation because it would make doctors unsure about performing certain treatments if they thought they could be accused of manslaughter. An example of this is Cheshire where the victim was shot but had nearly healed. He was given a tracheotomy and died from complications of it that weren’t diagnosed by the doctors. The defendant was found guilty of murder and the Court of Appeal said there was medical negligence but defendants acts contributed significantly so he was liable.

Robyn

Reform of the Attorney General

Over the last 500 years, the Attorney General has ensured the Government follows the law, supported the rule of law, protected public interest and promoted improvements to the administration of justice. They have also been the leader of the Bar and closely involved with the Bar’s affairs. However, in recent years there has been great controversy caused by events including the Attorney General’s opinion being used as legal cover for the Invasion of Iraq, the Attorney General’s part in the termination of the BAE investigation and the “cash for honours” issue. This has lead to Gordon Brown making reform of the role of the Attorney General a part of his larger constitutional reform. The proposed changes were set out in the consultation paper “The Governance of Britain – A Consultation on the Role of the Attorney General”. Baroness Scotland of Asthal, QC, the current Attorney General, said in an article written for Counsel Magazine back in May 2008 that “we wanted to see whether there was anything fundamentally wrong with the way the role was structured, and if not wrong, how could we improve clarity and transparency in what the law officers do.”

There are three core roles of the Attorney General. The first is to be legal advisor to the Crown and represent the Crown in the courts. Second, the Attorney General is the Minister of the Crown with responsibility for superintending the CPS, Serious Fraud Office (SFO), Revenue and Customs Prosecutions Office and the Armed Forces Prosecuting Authorities. The Attorney General, alongside the Home Secretary and Secretary of State for Justice, is responsible for criminal justice policy. The Attorney General is also the guardian of public interest - particularly in charity matters. Lastly, the Attorney General is in charge of the appointment of “advocates to the court” and “special advocates” and legal proceedings such as commencing and terminating.

The main concern has arisen from the Attorney General’s political status as a government minister and the conflict between the Attorney General’s role as the Government’s chief legal adviser and her separate role as chief processor and guardian of public interest. This conflict has sparked the question as to whether the Attorney General or another person should have responsibility for individual prosecution decisions and prosecution policy. Critics say that the Attorney General cannot give independent legal advice to the government when they are part of it, therefore one of the issues is whether the person giving legal advice to the government should be part or separate from it. The controversy caused by the Attorney General’s opinion being used as legal cover for the Invasion of Iraq has also raised the question as to whether the advice given by the Attorney General should be made public.

The defence of the present role is that there is a public benefit in having an Attorney General who is a political insider as they are more likely to have credibility than an opinion offered by an outside lawyer. Moreover, ministers are more likely to listen to the advice of someone they consider as being “one of them”. In terms of whether advice should be made public, the government has said that the Attorney General’s advice to government is the same of the advice to a client, in that it should always be subject to legal privilege and therefore is not disclosable unless government chooses to make it so.

The proposed solution involves the appointment of a general counsel to the government, taking on the Attorney General’s role as the government’s chief legal advisor while responsibility for prosecutions would be made completely separate from government. The relationship between the Attorney General and the prosecuting authorities will be changed, with the Attorney General no longer having any power to take decisions in an individual case, except in certain circumstances to safeguard national security. The Attorney General will have to report to Parliament every time this power is used. A protocol, which will be publicly available, will set out how the Attorney General and prosecutors are to operate in relation to one another and a different protocol and annual report by the Attorney General will be given to Parliament to improve accountability. The Attorney General’s power to enter a nolle prosequi (Latin for not to pursue) will be abolished and the oath as guardian of the rule of law will be amended to have the Attorney General “respect the rule of law”. This shifts the basis on which the Attorney General gives legal advice to be in the public interest rather than political convenience or party loyalty.

These changes are not intended to meet a short term goal as they are a small part of the UK’s large constitutional reform, which takes a long term view. These changes are not yet perfected nor set in stone as they have yet to go through further scrutiny and a thorough pre-legislative process. Baroness Scotland, QC, feels these changes are a success as they “modernise and clarify the role of the Attorney... I believe they will increase public trust and confidence in my role and enhance the rule of law”.

Others, however, feel that the Attorney General having less to do with government gives rise to other problems. They believe that if the Attorney General were to now take too active a role in the day-to-day running of their departments then they would be considered to be “interfering” and would therefore not get the best out of the people that they superintend.

Nevertheless, I believe that this Consultation Paper successfully finds the balance in reforming long established institutions whilst maintaining the role which has worked for centuries. If legislation were to be subsequently enacted it will effectively address the current concerns of the Attorney General’s role in the 21st Century.

Law Essay: Strict Liability

‘Strict liability offences are contrary to fundamental legal principle. The imposition of criminal liability without reference to the state of mind of an accused can never be justified.’

Consider why and in what circumstances the court recognize the existence of crimes of strict and absolute liability.

A crime of strict liability is one where mens rea is not required in respect of at least one aspect of the actus reus. It is the imposition of criminal liability without proof of fault on the part of the defendant. This makes it an exception to the basic principle of criminal liability where actus reus and mens rea must be proved. In strict liability offences there may be no blameworthiness on the part of the defendant. This was seen in the case of Callow v Tillstone where a butcher asked a vet to examine a carcass to see if it was fit for human consumption. The vet said it was but it wasn’t and the butcher was convicted of the offence of exposing unsound meat for sale. For strict liability, all the prosecution needs to be proved is that the defendant committed a voluntary act.

In comparison to absolute liability as no mens rea is required for the offence and here is no need to prove that the defendant’s actus reus was voluntary. A case that illustrates this is Larsonneur where the defendant was ordered to leave the UK so she went back to Eire. However, the Irish police deported her back to the UK against her will and she was arrested for being an ‘alien’. These offences are very rare and involve offences where the actus reus is a state of affairs. This means that the defendant is liable because they have been found in a certain situation.

Nearly all strict liability offences have been created by stautes and are regulatory offences in nature. Strict liability offences were created as there was an increase in regulatory legislation and there were growing difficulties with enforcement. Therefore, the courts decided to do away with the requirement of mens rea in many cases where there were no express words in the statutes requiring proof of mens rea.

Judges interpret the definition of the offence in the act and although there is always a presumption that mens rea is required, judges are prepared to interpret the offence as one of strict liability if Parliament has not indicated any mens rea word in the relevant section of the act. If the statute includes certain words or expressions such as ‘wilfully’ or ‘intentionally’, then the offence requires mens rea and is not one of strict liability. However if the act makes it clear that mens rea is not required then the offence will be one of strict liability. This was seen in Sweet v Parsley, where the courts presumed mens rea was required because in their interpretation of the offence, Parliament did not mention the need for mens rea.

In Gammon, Lord Scarman gave other factors to be considered by judges when deciding if an offence is one of strict liability. Firstly, the presumption of mens rea is displaced if the statutes clearly say so. However, the presumption of mens rea is required if the offence is truly criminal in character. This occurred in B v DPP where the D’s conviction of inciting a child under 14 to commit an act of gross indecency was quashed by the House of Lords, who argued that mens rea was required for this offence. Lastly, presumption is displaced if the statute is concerned with issues of social protection and public safety, which is why many regulatory offences are ones of strict liability. In Alphacell, the company was charged with causing polluted matter to enter a river when pumps they installed failed, even though there was no evidence either that the company knew of the pollution or that it had been negligent. The House of Lords held it to be one of strict liability and the company were found guilty because it was important that rivers should not be polluted.

For some offences the statute provides a defence of ‘due diligence’ which means that the defendant will not be liable if they can show that they did all that was within their power not to commit the offence. However, there is currently no sensible pattern for when Parliament decides to include a ‘due diligence’ defence or does not. In Harrow LBC v Shah and Shah, the staff of the defendant sold a lottery ticket to someone under 16. Magistrate dismissed the charges but the Divisional Court held that the offence did not require any mens rea and the act of selling the tickets to someone under 16 was enough to make the defendants guilty, even though they had done their best to prevent this happening in their shop.

Another feature of strict liability offences is that the defence of mistake is not available. In Cundy the defendant was charged with selling intoxicating liquor to a drunken person. Even though there was evidence that the defendant had not noticed that the person was drunk, the magistrate held that the offence was complete in proof that a sale had taken place to a drunk person and convicted the defendant. The lack of these two defences for strict liability cases means that I can be unjust as in the cases for Cundy and Harrow LBC, the defendants were unaware that an offence had been committed and were blameless.

This is reflected in the case of Prince where the defendant had taken an unmarried girl under 16 out of the possession of her father, thinking that she was 18. He was convicted of taking an unmarried girl under 16 out of the possession of her father because the offence doesn’t require mens rea for at least part of the actus reus and is thereby one of strict liability. On the other hand, in Hibbert the defendant met a 14 year old girl on the street and had sex with her but was acquitted because it was not proved that he had intention to take her away from he father and mens rea is required for this aspect. The case of Hibbert shows that even though one aspect of the offence was strict liability, mens rea was required for the main aspect. This provides a protection for some defendants who were unaware an offence had been committed and were blameless. However it also shows an inconsistency in the courts attitudes towards strict liability because even though Hibbert occurred before Prince, Prince was still found guilty.

Nevertheless the main reason for the creation of strict liability offences is to protect the public and this protection is needed in many different types of situations. Strict liability is easier to enforce as there is no need to prove mens rea and therefore saves court time as people are more likely to plead guilty. Also, as seen in Hibbert, allowances for levels of blameworthiness can be made in sentencing.

Robyn

Law Essay: Omission

‘In general, the criminal law prohibits the doing of harm but does not impose criminal liability for an omission. However, there are justifiable exceptions to this general principle.’

Assess the truth of this statement by reference to situations where a failure to act may result in criminal liability.

Criminal liability in criminal law accepts that a person must commit an unlawful act with mens rea. However criminal law accepts that in certain circumstances a person who fails to act where there is a duty of care and does something negligently can also be liable. This called omission.

Some countries have a good Samaritan law which means that all citizens have a duty to help one another in emergency situations. However British judges do not like this because it implies that the defendant ought to have acted and to impose a duty is to strike at the defendant’s freedom. Instead judges and parliament have established duties of care through common law and statutes.

An example of statutory duty comes from the Children and Young Persons Act 1991 which states that parents have a duty towards their children. Before the 1991 act the case of Gibbins and Proctor established that there is a duty of care where there is a relationship. This case is an example of the parent-child relationship as the defendants failure to feed his daughter was enough for the actus reus of murder.

Pittwood illustrates a contractual duty as the defendant, who was a railway keeper omitted to shut the gares and was found guilty of the manslaughter of a person hit and killed by a train.

There can also be a duty through ones official position. This is rare but occurred in Dytham where a police officer saw a man being beaten up and did nothing to help. He was found guilty of neglecting to perform his duty.

The defendant can also be liable where the duty was undertaken voluntarily. In Stone and Dobinson, Dobinson had voluntarily undertaken to look after Stone’s elderly sister and so was found guilty of her manslaughter when she died from malnutrition. The Court of Appeal said that by taking her into their home they had agreed to take care of her.

Lastly, there is a duty where the defendant set in motion a chain of events. This was created by Miller where the defendants mattress caught fire and the defendant did nothing. The house caught fire and the defendant was convicted of arson as he knew that there was a dangerous situation but failed to take any steps to deal with it.

However it can be difficult to decide when a duty of care exists. It is normally he judge who determines whether there is a duty of care and the jury decides if there is a duty of care and if that duty has been breached. This means that the law is capable of expanding to cover more situations, as stated obiter in Khan and Khan where the defendant had supplied heroin to a new user who took it in their presence and collapsed. The defendant left her alone and by the time they returned to the flat she had died. However this can be seen to make the law uncertain.

Secondly, it can seem harsh that someone who accepts an adult into their home has assumed a duty towards them as adults are generally considered to be responsible for their own life. The argument for this is that if the adult is vulnerable then the adult taking care of them is in the best position to ensure potential harm is avoided. This duty can be fulfilled simply by summoning help and the defendants in Stone and Dobinson were found guilty because they failed to do so.

Lastly, many statutes impose duties and many of the laws in this area have strict liability. The justification for this is that it is for the greater good of society. One example is the Domestic Violence, Crime and Victims Act which makes all household members liable for failure to protect a child. This makes it easier to succeed in prosecution with is important because the law should provide children and vulnerable adults with as much protection as possible.

Robyn

Hailing Supreme

In 2007, Gordon Brown announced a programme of constitutional reform with the aim of rebuilding national consensus and international trust. This initiative, however, had already begun under Tony Blair as seen by the creation of the Human Rights Act 1998 and the Constitutional Reform Act 2005. The latter has lead to the creation of a UK Supreme Court which should be completed by October of this year.

According to the July 2003 Department of Constitutional Affairs Consultation Paper, Constitutional Reform: A Supreme Court for the United Kingdom CP 11/03’, the creation of the court was necessary as the current system raised “questions about whether there is any longer sufficient transparency of independence from the executive and legislature to give people the assurance to which they are entitled about the independence of the Judiciary.” This quote clearly refers to the UK’s alleged current violation of the Doctrine of the Separation of Powers, suggesting that this new court is a solution to these problems. The Supreme Court will remove the law lords from the House of Lords and thereby “separate” the legislature and executive from the Judiciary. While the new court will hit Gordon Brown’s target of rebuilding trust, is that all the new court is for? Is it simply a very expensive election tool or will it truly improve the English legal system? While the judiciary, legislature and executive may be physically apart, will the branches be truly separated?

The Supreme Court will have the original jurisdiction of the Appellate Committee of the House of Lords and will completely replace it’s judicial capacity, returning it to a purely legislative chamber. This will clearly have an enormous effect on the UK Constitution by severing the ties between the legislative and judiciary. However, the location of the Supreme Court suggests that the two branches are not yet ready to say bye-bye.

The new location at Middlesex Guildhall a Grade 2 listed neo-gothic building on Parliament Square –has outraged conservation group SAVE Britain’s Heritage. According to their Secretary, Adam Wilkinson, “the plans are doing an enormous amount of damage to an extremely fine interior…if this wasn’t going to be a Supreme Court there is no way that it would get planning permission”. The other concerning factor is that it is not necessary to destroy a Grade 2 building, as the original choice of location had been Somerset House on the Strand, which is “at the heart of the legal campus, you wouldn’t have had to make such radical alterations and it’s less damaging in terms of the historic fabric.” So why Middlesex Guildhall? Rabinder Singh QC of Matrix Chambers confirms that “many people in the legal profession were hoping it might be closer to the Royal Courts of Justice” but also agrees that there is a “certain symmetry” in having the Supreme Court on the same square as Parliament and many other Whitehall Ministries.

I, on the other hand, find myself coming to different conclusions. The Government is spending between £37million and £57million on renovating a Grade 2 building to separate the judiciary and legislature only to place the judiciary in the immediate vicinity of Parliament.

While the law lords are removed from the House of Lords, this is not going to be the only change made to the composition. The law lords currently have a staff of one office manager, six secretaries and four legal assistants with a budget of £200,000, excluding judicial salaries. However, the Ministry of Justice launched an advertising campaign in October 2008 to find a Chief Executive for the Supreme Court with a salary of up to £100,000. This Chief Executive will have 50 staff and a budget of £12million, a far cry from the meagre resources of the law lords. However, it must be noted that the new Chief Executive will do the exact same job as the current Law Lords. The cost of moving the Supreme Court has been justified by Jonathon Fisher QC of 23 Essex Street Chambers by saying that “if we are going to have a Supreme Court of standing…we have to have a building commensurate to its status.” But what about the sixty times increase in costs for the staff? With no explanation given by anyone as to why the budget has increased by such an amount, one can only assume as to its purpose. Personally, I find a deep resonance with Gordon Brown’s aim of “rebuilding” trust and the connotation that a big budget and staff means a lot of profound work is being done to improve our legal system.

It must not be forgotten that the US made a very similar move to this over 70 years ago. In 1935, the US Supreme Court moved out of the US Congress and into No 1, First Street NE, Washington DC. The new 92 foot high Court was built in three years using quarried marble from Italy and cost nearly $10Million, but not all US Justices supported the move calling it “almost bombastically pretentious”. In the UK, the new Court has also been met with contempt from the law lords as, back in 2003, only four of them had supported the idea. Now they all claim to back the project, or are reconciled to it, however, Wilkinson claims that most law lords “don’t want to be there” and would either prefer a purpose built site or to remain in the House of Lords. Others, particularly the Conservative Party say that the plan for Supreme Court should be dropped altogether. Conservative Peer Baroness Seccombe declared the Supreme Court to be an expensive “folly” and said that the court would become known as “Falconer Towers” (after the ex Lord Chancellor, Lord Falconer of Thoroton, QC). Nonetheless, the majority view of the Bar is that the Supreme Court is a step forward. Michael Fordham QC says that the Supreme Court is “very long overdue” and “it’s not just a matter of form or window-dressing. It reflects the extremely important role that the court has to play.” The negative views of different Peers and the Conservative Party is inevitable: the House of Lords do not want to relinquish the fusion of the legislature and judiciary and the Conservatives want to down trod anything Labour do. The positive response from the Bar, on the other hand, suggests that the court will have a positive effect in terms of the UK legal system.

The new Supreme Court will bring about great change to the UK in terms of separating the legislature and judiciary, however, I remained unconvinced by the costs of staff and their budget and the positioning of the court. It seems to me that the enormous budget is a façade created for the benefit of the public’s conscience and the use of Middlesex Guildhall is to ensure that the judiciary, although independent, is still under Parliament’s watchful eye. Given the location of the Supreme Court, space could well be a sought after commodity if Parliament decides to park its tanks on the judiciary’s lawn or visa-versa.