Criminal Law and Criminology - Case Study Example

Criminology The Court of Appeal was right to extend the duty of care to include a person who has been “instrumental in the supply of drugs” to the victim. Gross negligence arises where a person had a duty of care to another person but he omits to carry out that duty. For cases of gross negligence manslaughter, in situations where a person had created or made a contribution to the creation of a state of affairs which he knew, or should have known had become life-threatening to another person, a consequent duty would normally arise on him to act by taking reasonable steps to save the other’s life. Such a duty of care arises as a result of the law. The question whether the facts of a case establish the existence of the duty of care is to be determined by the jury. If the duty’s existence is disputed, the jury ought to be directed that if certain facts are established, then in law a duty would arise. Existence of other facts would negative the duty ( Husak,1987). The Court of Appeal dismissed an appeal by Gemma Evans against her conviction at Swansea Crown Court. The Lord Chief Justice, giving the judgment of the court, upheld the conviction of the appellant. The court found that the appellant, together with her mother, was convicted of manslaughter by gross negligence following the death of her half-sister, Carly, who was aged 16, who had injected herself with heroin which was supplied by the appellant. Carly developed symptoms similar to those of heroin overdose but the appellant and the mother failed to seek medical assistance as they feared that they themselves would all get into trouble. They thus decided to put Carly to bed, hoping that she would somehow recover which she never did and was found dead the following morning due to heroin poisoning. The appellant had remained at the house from the time when her half sister injected herself, throughout the evening and night. She had also witnessed the signs of the effect of the drug injected by Carly and that she realized that her half sister’s condition was dire. The appellant and her mother also thought that they were responsible for the care of Carly after her taking heroin. The question was whether the appellant was under a duty to take reasonable steps for the safety of Carly once she realized that the drug she had procured for her was having a potentially deadly impact on her health. This was despite the fact that their relationship lacked the features of familial duty or responsibility which marked her mother’s relationship with Carly, when omission or failure to act were in issue; two aspects of manslaughter were engaged ( Hart, et al. 1985) The duty required to found gross negligence manslaughter was plainly not limited to cases of a familial or professional relationship between the defendant and the deceased. In the court’s judgment, for the purposes of gross negligence manslaughter, when a person had created or contributed to the creation of a state of affairs which he knew, or ought reasonably to have known had become life-threatening, a consequent duty on him to act by taking reasonable steps to save the other’s life would normally arise. Prosser, William et al. (1984) There was lack of consistency between authorities with regard to the question whether it is the judge or the jury who was responsible in an individual case to decide whether the defendant owed a duty of care to the deceased, which the court had to address and resolve. Except where there is a statutory exception, in the criminal trial, decisions of fact are the responsibility of the jury while the trial judge determines questions. In principle therefore, the existence, of a duty of care, was a question of law while the question whether the facts established the existence of the duty was for the jury. In some cases, where the existence of the duty was not in dispute, the judge might well direct the jury that a duty of care existed. But in any cases where the issue was disputed, and assuming that the judge had found that it would be open to the jury to find that there was a duty of care, or a duty to act, the jury should be directed that if certain facts were established, then in law a duty would arise. But if another set of facts were present, the duty would be negatived. In that sense, the jury was deciding whether the duty situation had been established. Comprehended in that way, no likely problems that would arise from articles 6 to 7 of the European Convention on Human Rights were engaged. That conclusion accorded with the principles which would exist if, in the very unlikely event of an order for trial by jury, the issues could arise in a civil action. On the facts, the appellant was under a basic and clear duty to take reasonable steps to provide assistance for Carly. The remaining ingredients of that offence were proved. Feinberg, Joel (1984) writes that failing to prevent harm is within the moral limits of the criminal law. In some respects the claim must be taken as unexceptional. The criminal law makes omissions offenses every time there is a certain duty to act. Unlawful omissions are the failure to do what is legally required. If you are required to protect or care for some other person, then you are liable for not doing so. If the person for whom you are responsible should die, you may be liable for homicide whether negligent or intentional. The punishment of omission raises interesting problems for criminal law theorists in several respects. First, it is not clear that omission can pass the tests of actus reus and mens rea that are supposedly necessary for a prima facie case of criminal liability. Problematic criminal categories, such as possession or attempt have led some theorists to argue that there is not or should not be an act requirement in the criminal law, at least as defined in the Model Penal Code and many traditional texts in terms of “willed bodily movements.” Thus, it is often said that all criminal acts are intentional under some description. But negligent omissions are not intentional under any description, and no omission can aptly be characterized as willed bodily movement. So, omissions are problematic or the traditional act requirement is, unless it can be reinterpreted to include omission. Further, many crimes are defined in terms of the prohibited consequences they bring about. So the idea of causing harm is central to criminal liability in a wide range of cases. But the causal status of omission is an obscure and controversial matter that is inconsistently handled in law. The most common comparison made under the heading of the act/omission distinction is the perceived contrast between allowing something to happen and causing it to happen. The contrast is thought to carry important implications for legal theory despite the fact that it is far from clear exactly what the contrast is. Before dealing with the special problems raised by omission or by letting things happen, however, some account, necessarily superficial, must be given of the use of causal concepts in law. The legal use of the concept of causation raises daunting ontological and conceptual issues without any reference to omission at all. Nevertheless, it is possible to give an account of the use of causal concepts in law. In fact, a good deal of work has been done on this mat Unlike science, which is interested in causal generalization, the law is interested in singular causal statements: Not what causes death, but what caused that death? And we are interested in these singular causal statements with a particular purpose in mind, namely, the question of how to attach blame or liability to an agent for that particular event. We want to know whether the agent did something that contributed to the outcome in such a way as to justify holding the agent responsible for it. What exactly the connection between the agent and the outcome must be is a good question, and one that has certainly been the source of considerable struggle in both tort and criminal law. Jonathan, Bennett. (1995) In R. v Evans the court was right to enlarge the class of persons to whom a duty may be owed. This is due to the recognition of the fact that in many instances people would go scot free despite the fact that they played a key role in another person’s death. To cite the example of drug related deaths, it would not be fair to declare that someone who had supplied the drugs should not be liable for having failed to seek medical assistance in case a user died as a result of using the drugs. Examples of duties created by common law include the "voluntary assumption of responsibility" and "creation of danger". The case normally cited as authority for the former is the much criticized Stone and Dobinson1 where it was held that a duty exists where a person assumes responsibility for another and the authority for the duty which arises upon a creation of danger is Miller2, where a squatter inadvertently set fire to a mattress with a cigarette. Rather than tackling the blaze or calling the emergency services, he simply went to sleep in an adjacent room while the fire spread through the building causing extensive damage. The House of Lords upheld his conviction for criminal damage on the basis that, although he was initially unaware that he had brought about a train of events which would cause damage, "when he did become aware that the events in question had happened as a result of his own act, he did not try to prevent or reduce the risk.” This is more evident in the drug homicides cases where a drug user dies following ingestion of drugs supplied by a dealer who is present at the time, but does not help or summon help before the user's death. Although there are very few cases where this has occurred, gross negligence manslaughter rather than unlawful act manslaughter has been the preferred charge, first because liability is based on the failure to summon help and not on the original drug supply, and secondly, because, following the authority contained in Lowe, unlawful act manslaughter cannot be committed by way of an omission. Hyman Gross, (1979) The requirements to be satisfied in gross negligence manslaughter cases are as set out in Adomako, where it was held that in order to secure a conviction, it must be proved that: the defendant owed the victim a duty of care, the defendant breached that duty, the breach of duty caused the victim's death and the breach was grossly negligent which is negligence considered gross enough to be regarded as criminal. Husak, Douglas (1987) The House of Lords held in Kennedy3 that "the free, deliberate and informed choice of a responsible adult to self-administer the drug breaks the chain of causation", but Lord Bingham went on to say that: "This appeal is concerned only with un1awfuil act manslaughter and nothing in this opinion should be understood as applying to manslaughter caused by gross negligence." However, and as will be argued below, an intervening event does have the potential to break the chain of causation in gross negligence manslaughter as well as in unlawful act manslaughter drugs cases, but an examination of Townsend and Evans (Swansea Crown Court) and Evans, the most recent drug homicide case to come before the Court of Appeal, will demonstrate how the court dealt with both this and the duty of care criterion. Following this, the case will be discussed in its wider social context. Khan and Sinclair4 In Khan, the two defendants sold heroin to a 15-year-old prostitute who had never used it before. She took ten times the amount she should have and fell into a coma. The defendants left her in their flat and, upon returning the next day, found that she had died. It was conceded that she would probably have been saved if medical assistance had been called for. The defendants were convicted of gross negligence manslaughter, or as the trial judge called it, "manslaughter by omission", but their appeal was allowed because he had omitted to direct the jury that it is a condition of gross negligence manslaughter that the defendant owes the victim a duty of care and that that duty had to have been breached. References: Deflem, Mathieu 2006 Sociological Theory and Criminological Research: Views from Europe and the United States. Elsevier Feinberg, Joel 1984 Harm to Others Oxford Press, London. Hyman Gross 1979 A Theory of Criminal Justice Oxford University Press, London. Hart, H.L.A. et al. (2d ed 1985) Honoré, Causation in the Law. Hayward, Keith J. 2004. City Limits: Crime, Consumerism and the Urban Experience. Routledge Husak, Douglas 1987 The Philosophy of Criminal Law , Rowman & Littlefield, New York. Prosser, William et al. 1984 Handbook of the Law of Torts. Jonathan, Bennett 1995The Act Itself Clerendon Press,Oxford. McLennan, Gregor, Jennie Pawson, Mike Fitzgerald (1980). Crime and Society: Readings in History and Theory. Routledge Mead, George Herbert 1934. Mind Self and Society University of Chicago Press. Read More