Criminal Liability Development - Essay Example

 Criminal Liability Introduction Criminal liability forms the driving offense that is surpassed by recklessness. It uses the principle of an objective standard. In the case of McCrone v. Riding (1938), 1 All ER 137 the court held that a driver who is a learner is expected to meet the standards of a qualified driver. The crime element in negligence amounts to gross negligence manslaughter. The prosecution has the duty to establish that the defendant in question owes a duty of care, and they breached their duty by their actions or omissions that resulted in death (Great Britain Law Commission. 2010). In such cases, the defendant fails to perceive the seriousness of their actions or omissions and perpetuates a gross violation of his duty and standard of care expected of a reasonable man. The test used to establish such negligence is set out in R v Adomako (1994) 3 WLR 288 the courts established that a defendant is liable if according to their own judgment their actions or omission would result in a criminal act. All that is expected is to proof the defendant’s culpability in the death of the victims and the defendant was wilfully unaware of his actions. According to the facts of the case, Adam stole lead from the church and left the church in a dangerous situation. This led to the death of a church member Serena and William. Subsequently Vincent repaired the roof but not as professionally, as was expected. This caused the death of Gray a cleaner at the church. This essay analyses the criminal liability of both Adam and Vincent. Analysis According to the given facts of the case, Adam stole a huge quantity of lead from the church. This left the roof in a dangerous position that collapsed killing Serenna.Adam can be held criminally liable for the death of Serena. His act of stealing lead connects the link of causation that led to the death of Serena. Criminal negligence represents mens rea. However, the mens rea in this situation is replaced by recklessness of Adam. The test used to determine recklessness is the standard of behaviour expected of the defendant in such circumstances. A reasonable person in such circumstances would not have committed the act that Adam did and therefore he can be considered to have the mens rea required to find him criminally liable. The test here applies to wilful negligence in gross negligence that another person would find it reckless. In criminal law, there must be an actus reus and men’s rea. The actus reus of the defendant was stealing the lead that led to the roof collapsing. Criminal negligence looks at the culpability and recklessness that causes the intermediate seriousness of the resulting actions of a defendant. Adam was reckless in his actions since he exposed other members of the church to damage. This means that he was wilful in running the risk. The courts in such a case will apply the test of a reasonable person to analyse his culpability in such a case. This test of culpability and mens rea is an assessment by the courts to establish whether the defendant had the foresight of the consequences of his actions. It applies three elements in these tests. The first tests analyses the subjective tests whether the court can establish what Adam was thinking at the time of his actions of stealing the lead form the church. The second tests are objective where the court looks at the mens rea using the reasonable test. This analyses whether a reasonable person with the same knowledge of the consequences would have stolen the lead. The third and last element the courts look at the hybrid of the two elements, that is, the subjective and the objective test. (Sistare, 2012 p. 44) Adam can be held criminally liable if the courts use the subjective test. He did not foresee the damage and its adverse consequences to his actions, but nonetheless proceeded with stealing the lead in huge quantity that left the church roof exposed and dangerous. This exposed other individuals and unknown victims to the risk of suffering damage and endangering their safety. This means that Adam is a social danger to the church because he endangered them where a reasonable person would have foreseen the adverse consequences and taken necessary preventative measures. This means that the test here is hybrid. In the case of R v Bateman(1925) 28 Cox’s Crim Cas 33 the courts held that in determining the test of negligence in criminal cases the courts use culpable terms to establish criminal culpability. Adam actions of stealing a quantity of lead from the roof left it in a dangerous condition. The roof collapsed and therefore he can be held liable for the death of Serena. He is guilty of gross negligent manslaughter for her death. Adam is also liable for Williams’s death, an elderly man who witnessed Serena death and died of a heart attack. William can be considered as a secondary victim in such a scenario since he did not die at the scene of the church but later died of heart attack for witnessing the death of Serena. William suffered nervous shock for not himself being exposed to harm but for witnessing the harm. The court is always reluctant to deal with such cases. However, the courts must identify the duty of care not to cause such shock to secondary victims. The courts look at the causation and remoteness of the circumstances. For Adam to be criminally liable for Williams’s death the prosecution must establish and perceive a shocking event. In this case, the shocking event was the collapse of the rooftop. William viewed the collapse of the rooftop of the church and saw its aftermath that killed Serena. There must be close physical proximity of the collapse. This helps courts to exclude witnesses through television sets or people being informed by third parties. In this case, William was in close proximity of the shocking event. Another element the courts look at in analysing nervous shock of secondary victims is that the result must be sudden (Sistare, 2012 p. 55) .In this case William suffered a heart attack after witnessing Serena being killed and therefore it was an immediate result. The courts also expect the prosecution to show a sufficient proximate relationship to the person. Therefore, in such a case it might be hard to prove Williams relationship with Serena. However, the mere fact that they were close church members in the same church it can be used as evidence to establish a relationship. The court also looks at the foreseeability of such a victim suffering nervous shock due to his position. William was an elderly person and therefore is reasonable that he suffered nervous shock that resulted in death. In the case of McLaughlin v O’Brian (1982), 2 All ER 298 the court held that immediate aftermath must be established in nervous shock claims. In the case of Attia v British Gas pic (1988) QB 304 the courts analysed the recovery of damages for nervous shock as a result of witnessing the destruction of property whether it was recoverable. In Alcock v Chief Constable of South Yorkshire Police the victim in this case were secondary victims. The court stated that the claimants must perceive the shocking event, the shock must be sudden and the shock must be because of witnessing the event, the shock must be reasonably foreseeable. Therefore, it is clear that Adam is criminally liable for the death of William because of him being a secondary victim that suffered nervous shock that resulted to a heart attack. Adam is therefore criminally liable for the death of Serena and William. Vincent cannot be held criminally liable for professional misconduct. He repaired the roof but it could not withhold, collapsed, and killed Gary who was a cleaner for the church. However according to the facts of the case he did not have any experience in working with historic buildings. An expert claimed that anyone with the experience would have known the necessary materials to use. In addition, would not have been obvious to a builder without the experience. Therefore, in this case holding him liable will be hard since he performed his work according to his knowledge. Therefore, it would be up to the court to establish that he did not know or have the experience .Vincent therefore could be said that he was not liable for the death of Gary since he did not have the professional capacity to build a better roof. The test the court can apply is the reasonable test .This means that the court will analyse whether a reasonable person without the experience of working on history buildings would have done the exact work Vincent did. Therefore, Vincent can escape criminal liability since he was not reckless and lacked the experience of knowing that such materials were not fit to use. However according to the facts Vincent had worked in the building trade for many years. This may expose him to civil liability and may pay damages .Although it would be hard to prove such liability, the court will analyse whether a person with Vincent experience would have known that the building was historic and therefore he was inexperienced to work in the building. Professional misconduct means that a person who is considered an expert in any field owes his client the duty of care in tort to exercise reasonable care in performing his services. If any circumstance of damage arises due to his lack of reasonable care, they may be held liable .Criminal liability tries to protect the society from harm (Pieth, 2011 p. 34). The main reason that Vincent can escape criminal liability is because he was employed. Therefore, there can be an additional liability on the person who employed Vincent. This is because the employer knew that the church was a historic building and therefore the skills of someone who lacks the skills cannot be used. He can defend himself using the vicarious liability test. Vincent can escape liability by using employer’s liability. This means that his actions were within the course of employment. A person is held liable for the actions of another (Pieth, 2011 p. 22) .This means that such cases are a product of liability without fault and is transferred regardless whether Vincent or the church knew they were committing a crime. In this case, Vincent performed his work under the employment of the church. Therefore, his actions and omissions can be transferred to the churches who can incur criminal liability. Vincent lacks the mens rea are required to proof guilt. He could foresee the damage incurred after building the roof. His acts can be considered as those of the church. This means that the church as an institution may be held liable for the death of Gary. However, the church as the employer can defend themselves as employers. In law, an employer is not responsible for tortuous acts of an independent contractor and cannot therefore be held vicariously liable (Sistare, 2012 p. 34). The church can argue that they hired Vincent as an independent contractor to analyse the damage of the roof and make it appropriately. However, they must establish before a court of law that they believed that Vincent could be able to deal with the damage professionally. Criminal liability for Vincent is hard to proof since he was employed as an independent worker and was expected to act professionally. Determination whether a worker is an independent contractor depends whether the church determines the work to be done and retains control of the whole project. According to the facts of the case, the church left the work to the independent contractor and therefore this can be used as defence to escape liability. In the case of Honeywell and Stein Ltd v, Larkin Brothers Ltd the court held that the independent contractors who were photographer were liable for setting ablaze the theatre interior. Discussion Criminal liability in this case arises due to factual causation. This means that the courts apply the ‘but for ‘test which means that were it not for the defendant actions or omissions the damage would not have occurred. Criminal liability requires two elements that is, the actus reus and the mens rea (Sistare, 2012, p. 41) .In the given facts the question is whether Adam and Vincent are criminally liable for their actions. Adam is definitely liable for the death of Serena and the death of William. This is because his actions were reckless and exposed the church members to potential danger. A reasonable person in his position would not have stolen the lead that left the church exposed to danger. Therefore, the courts in assessing criminal liability will use the objective and subjective tests to analyse the liability of Adam. The hybrid test analyses the recklessness of the defendant to check whether he is culpable for the damage done .Therefore, Adam can be held liable for Serena’s death since his actions had a causal link that led to the roof collapsing and killing her. Nervous shock is an element in law and a defendant maybe criminally liable for the death of a victim who suffers shock due to their acts or omissions. Adam can be held criminally liable for the death of William since his actions of stealing led to the collapse of the church rooftop where Serena died, In the accident William witnessed the death of Serena and subsequently afterwards suffered a heart attack and died. It can be said that he was a secondary victim and therefore Adam can be held liable. However, the courts look at the relationship of the victim, the proximity of the accident and how sudden the shock happened. William died because of the shock and therefore Adam can be held criminally liable for gross negligence manslaughter. Vincent is an independent contractor according to the facts of the case. Therefore, it is hard for his employer to be held criminally for his actions. However, the church as an employer may be held liable since they knew that the church was a historic building and required a qualified contractor. Vincent may be held liable for professional misconduct because he failed to notice that the building was a historic building and he had experience working on building. However, he cannot be criminally liable for Gary’s death. This is because a reasonable person in his position would have done the same thing he did and therefore he was not reckless. However, he may pay damage to the family of Gary. Conclusion In conclusion, Adam is criminally liable for the death of Serena and William due to his recklessness of exposing them to danger. Vincent on the other hand cannot be criminally liable since; lacked the professional skills to use the proper type of materials that would not exposé anyone to danger. Therefore, here the criminal liability maybe shared between the church and Vincent and they may pay civil damages because they escape criminal liability in law. References Case Law Alcock v Chief Constable of South Yorkshire Police Attia v British Gas pic (1988) QB 304 Honeywell and Stein Ltd v, Larkin Brothers Ltd(1934) 1 KB 191 McCrone v. Riding (1938), 1 All ER 137 R v Adomako (1994) R v Bateman (1925) 28 Cox’s Crim Cas 33 Books Great Britain Law Commission. 2010. Criminal liability in regulatory contexts: a consultation paper. Norwich, Stationery Office. Pieth, M., & Ivory, R. 2011. Corporate criminal liability emergence, convergence, and risk. Dordrecht, Springer. http://site.ebrary.com/id/10465362. Sistare, C. T. 2012. Responsibility and Criminal Liability. Dordrecht, Springer Netherlands. http://dx.doi.org/10.1007/978-94-009-2440-6. Read More