Criminal Law: Theory and Doctrine - Essay Example

346370 Criminal Law: Theory and Doctrine Introduction In this essay the intention is to discuss some aspects of the theory and doctrine of criminal law, particularly those relating to offences of omission in the discharge of “positive duties” to ‘people with whom we have a special relationship’; whether the ‘current principles on omission’ are in need of reform; and the meaning and ‘scope’ of “intention and recklessness”, the two important fault elements used in modern criminal law. Offences of omission in the discharge of “positive duties” A ‘positive duty to act’ is generally held to exist in situations such as: 1. where a statute enjoins a duty; for example, the Children and Young Persons Act 1933, which specified the offence of wilfully neglecting a child. Failure to provide food or required medical treatment for a child by its parents might result in liability for such an omission. A case law in this area is that of Greener v DPP (1996)1, where the defendant was found to be liable for his omission to restrain a dog which bit a child, in terms of a positive duty imposed on him by Section 3(3) of the Dangerous Dogs Act of 1991. 2. Where a duty arises from a contract. (Contractual Duty and an omission to act) In terms of a contractual agreement, if a person has an obligation to perform a positive duty or action, a failure to perform that duty or act could give rise to criminal liability as in R v Pittwood (1902)2. “In this case, a gatekeeper at a railway crossing went to lunch leaving the gate open. Someone crossed the track during his absence and was killed by a train. Pittwood was held to be contractually obliged to close the gate when a train approached and was found guilty of manslaughter” (Purplecat-ga). 3. Duty owed to Family Members. (Family Duty and an omission to act) According to the common law family members have a duty of care for the welfare each other in the family. A case example in this regard is that of R v Gibbons and Proctor (1918)3. A man and woman were living together with the man’s young daughter. They failed to take care of her or give the child food and she died. The trial Judge held that they were guilty of murder as they withheld food with the intent to cause ‘grievous bodily harm’ (G.B.H), which resulted in the child’s death. The Court of Appeal upheld their conviction. 4. Reliance. (Voluntary Duty and an omission to act) The courts have recognized in recent years a common law duty of care, where there is found a relationship of ‘dependence’ between the defendant and the petitioner. “For example, if a person undertakes voluntary responsibility for another, the law presumes that they have also undertaken a positive duty to provide for the welfare of their charge. As a result, the person assuming such responsibility may be liable for any omissions which prove fatal. The case law in this area includes: R v Stone and Dobinson (1977)4. In this case, the defendants failed to supply care and medical assistance for a sick relative, which led to the relative's death. They were held liable for these omissions” ( Purplecat-ga). 5. Duty due to defendant's prior conduct. (Supervening Fault - created the situation by accident and then failed to act). If an unintentional act that causes harm becomes known to the perpetrator a little later, they have a duty to take ‘reasonable action’ to prevent that harm. The case law to illustrate this obligation is that of R v Miller (1983)5. In this case, Mr. Miller, was smoking in bed and fell asleep, but unwittingly set ablaze his bed. On waking up, he became aware of the danger but instead of taking action to extinguish the fire, he shifted to another room and let the fire cause extensive damage. “The House of Lords found him liable for the damage because once he had woken up, he was under a positive duty to try and limit the damage” (Purplecat-ga) All these cases are illustrative of the truth of the observation made by Professor Ashworth that “Whereas we owe negative duties (e.g. not to kill or injure) to all people, it is right that we should owe positive duties (e.g. to render assistance, to support) only to circumscribed group of people with whom there exists a special relationship” (Ashworth (1989. 424). The doctor-patient relationship also partakes of the nature of special relationship that is mentioned above. In this context it is pertinent to inquire whether the ‘current principles on omission’ are in need of reform, which forms the topic of discussion in the next section. Are the ‘current principles on omission’ in need of reform? This question can be considered in the light of two cases relating to the treatment of ‘terminally ill patients’, namely the case of Anthony Bland in Airedale NHS Trust v. Bland6 and that of Diana Pretty in R v. Pretty7. These two cases exemplify what Heaton (2004)8 says in the context of the Empress Car case that it is a ‘heresy’ to ‘equate “voluntary human interventions with natural events” which would be “contrary to established principle” and might threaten “to widen causal responsibility to an unacceptable degree”. The House of Lords judgment in the Bland case was delivered in 1993. Until that time it was thought that according to the common law murder can be committed not only by a positive act but also by omission in situations where there is a duty to provide what is omitted. This covered doctors, who owe their patients a duty of care. Anthony Bland became incapacitated by the ‘Hillsborough football disaster’ in 1989 when he was 17 years of age. “The part of his brain necessary for feeling and thinking was permanently damaged due to lack of oxygen. But he was not dead, nor was he dying. His brain stem was still functioning; he was breathing unassisted and digesting food that was supplied through a tube. Nevertheless his doctors and parents wanted to stop the feeding and medical care because they decided that it served no useful purpose. The courts were asked to adjudicate and on the 4th February 1993, the House of Lords upheld a previous ruling that it would be lawful to withdraw feeding and medical care. Tube feeding was withdrawn from Bland and he died of renal failure, consequent on dehydration, on 3rd March 1993. Their Lordships held that Tube feeding was medical treatment which the doctors were under no duty to provide because it was not in the patient’s best interests, was futile, and was a course of conduct endorsed by a responsible body of medical opinion. Tube feeding was stopped in order to put an end to the life of Bland. Prior to the Bland case, such conduct was considered incompatible with the duty of care that was owed to a patient. Following the Bland case conduct aimed at ending a patient’s life, providing it counts as an omission, may well be deemed as compatible with the exercise of the duty of care for a patient if doctors judge that patient’s life no longer worthwhile” (The Patients’ Protection Bill). There were many people who were appalled by the ‘Bland verdict’. In 2002 Baroness Knight of Collingtree introduced in the House of Lords a private members' bill, entitled “The Patients’ Protection Bill” that would prevent doctors committing euthanasia by withholding the supply of food or fluids to a patient. The Bill sought to make it "unlawful for any person responsible for the care of a patient to withdraw or withhold sustenance from the patient if his purpose in doing so is to hasten or otherwise cause the death of the patient." It was introduced in the hope that the legislation would reverse the Bland judgement in which doctors were allowed to withdraw food from a patient in a vegetative state. However, the Bill failed to become law. The ‘Bland judgement’ was extended to cover patients other than those in permanently unconscious condition as Anthony Bland. In a document published by the BMA June 1999 as a guide on Withholding and Withdrawing Life-prolonging Medical Treatment they considered it proper to withdraw tube feeding from “patients who have suffered a stroke or have severe dementia”. However, many consider Tube feeding not as a medical treatment, but as ‘a basic care’. A case for introducing the “The Patients’ Protection Bill” was based on the fact “that many people with cystic fibrosis are fed by gastric tube and live an otherwise normal life. Others with paralysis of the throat and swallowing mechanism feed via nasal tubes. Tube feeding is being withdrawn from patients like Tony Bland or those who have suffered a stroke or have severe dementia because doctors and others judge that their lives are no longer worthwhile. This is wholly incompatible with the respect for the worth and dignity of every human being which forms the basis of our laws. To allow doctors to withdraw sustenance from patients with the purpose of ending their lives subverts the law of murder. Hence the urgent need for this Bill” (The Patients’ Protection Bill). Anthony Bland did not want to die; the doctors decided that he needed to die and removed his life-sustaining feeding and medical care and left him to die. Who decides? At the other end of the spectrum is the case of Diana Pretty, a terminally ill patient, who wished to die through “assisted suicide” but was not allowed to do so by the UK and the EU laws. The facts of the case are as follows. “Diane Pretty, a 42-year-old lady was diagnosed with Motor Neurone Disease in 19999. Her condition deteriorated rapidly since; and by 2002 she was unable to do virtually anything for herself. She wished to die at home, with her family around her at the time of her choosing, rather than be condemned to suffer both physically and emotionally. She was very clear about her decision; but was physically unable to take her own life without assistance. Under Section 2 of the Suicide Act 1961, if her husband of nearly 25 years were to help her, he could be prosecuted for aiding and abetting a suicide. On Mrs. Pretty’s behalf the Director of Public Prosecutions (DPP) was asked for his assurance that Mr Pretty would not be prosecuted under the Suicide Act if he were to help his wife take her own life. The DPP replied that they were not able to give that assurance” (Liberty). Mrs. Pretty then asked for a judicial review of her case. “In proceedings for judicial review she sought that the DPP give a declaration that the prohibition on assisted suicide was incompatible with the European Convention on Human Rights. The Divisional Court rejected her claim, and the law lords dismissed her appeal holding that the DPP had no power to grant the undertaking. They also rejected Mrs. Pretty’s claim that she enjoyed a right to assisted suicide under Articles 2, 3, 8, 9 and 14 of the European Convention on Human Rights. One of the main reasons for rejecting her appeal was said to be ‘the likelihood of abuse’. ‘Concern about the slippery slope’ – from assisted suicide to voluntary euthanasia; from voluntary to non-voluntary euthanasia; and from euthanasia as a last resort to a "quick fix" – was a central theme of the courts’ reasoning. The risks of the ‘slippery slope’ were evident in the logic of the argument of Mrs. Pretty’s counsel. If she indeed had a ‘right to self-determination in relation to issues of life and death’ then, as Lord Bingham noted, this would extend to voluntary euthanasia for those too disabled to commit suicide. Indeed, why would the claimed right not be extend to those who were neither disabled, dying nor suffering?” (Keown). The courts’ concerns about the dangers of stepping on to the slippery slope have been considered as real and weighty" Many people might have sympathized with Mrs. Pretty’s predicament, but it would have been unwise to have been persuaded by her arguments, particularly when soothing and analgesic care has taken great steps in assuaging the pain of those in her condition. The European Court of Human Rights dismissed Mrs. Pretty’s appeal on 29 April, 2002. She died on 11 May 2002, a ‘natural and peaceful’ death. In the light of these cases, one can make out a case for reform of the current doctrine on omissions. But there does not seem to be any consensus in what way or how it is to be reformed. One can only say that “law must be constructed to reflect the society of today, and evidently it is generally not thought of in the public's mind that those who fail to save people's lives are as bad as those who take them” (Hazelnut). This brings to the fore the need to inquire, however briefly, into the meaning and implications of “intention and recklessness” in criminal actions. The meaning and ‘scope’ of “intention and recklessness” ‘Intention’ and ‘recklessness’ are the two important fault elements used in modern criminal law. In respect of ‘recklessness’ the matter seems to have been ‘decided in favour of the traditional, subjective, approach’ as elaborated in R v G (2003)10. “In this case the House of Lords held that a defendant could not be properly convicted under s. 1 of the Criminal Damage Act 1971 on the basis that he was reckless as to whether property was destroyed or damaged when he gave no thought to the risk and, by reason of his age and/or personal characteristics, the risk would not have been obvious to him, even if he had thought about it. Lord Bingham observed that recklessness should at least require a knowing disregard of an appreciated and unacceptable risk of, or a deliberate closing of the mind to such risk. In his view it was not clearly culpable to do something involving a risk of injury to another if one genuinely did not perceive the risk (see Molan). With respect to the definition of ‘intention’, it can be derived from decisions of the House of Lords, particularly with regard to R v Moloney (1985) and R v Woollin (1998)11. “A defendant cannot be guilty of murder unless he is proved to have acted with intent to kill or do grievous bodily harm. Where a direction on intent is deemed necessary, a jury should be instructed that they should consider the extent to which the defendant foresaw death or grievous bodily harm resulting from his actions. Only where there is evidence that he foresaw either consequence as virtually certain would it be safe for a jury to conclude that a defendant therefore intended either of those consequences. The key here is foresight. Section 8 of the Criminal Justice Act 1967 makes clear that foresight is subjective – i.e., it is based on what the defendant actually foresaw – not on what he ought to have foreseen, or what the reasonable person would have foreseen had he been in the defendant’s shoes. This definition of foresight together with the House of Lords’ ruling in Woollin ensure that where intention is the required mens rea, it will have to be based on the defendant’s state of mind—i.e., a subjective approach will be adopted. The rationale for this is obvious—a defendant cannot be held as having intended a consequence if there is no evidence of it having occurred to him. The law, therefore, requires a very high degree of foresight before a defendant’s state of mind is characterized as having been intentional” (Molan). References Ashworth, Andrew, (1989): "The Scope of Criminal Liability for Omission" (1989) 105 Law Quarterly Review 424-459 Hazelnut: “Criminal omissions” at www.everything2.com/index.pl?node_id=1725656 Keown, John: (2002): “Death by another's hand a 'slippery slope': The Diane Pretty case”, The Times on May 7, 2002, at www.onlineopinion.com.au/view.asp?article=1883 Liberty. 21 Tabard St, London, SE1 4LA www.liberty-human-rights.org.uk/news-and-events/1-press-releases/2001/diane-pretty-s-right-to-die-case.shtml Molan, Mike and Geoff Douglas, 2006: The elements of a crime: actus reus and mens rea www.oup.com/uk/orc/bin/qanda/sample_chapters/molan_chap02.pdf The Patients’ Protection Bill: at www.parliamentaryprolife.org.uk/knightbill.html - 25k Purplecat-ga (2002: liability for criminal omissions, at answers.google.com/answers/threadview?id=95270 Read More