oct ewj 24 online - Flipbook - Page 70
If we look at the sentencing guidelines that are in place
we could stratify the culpability of the defendant. 13
This can help the jury to apportion guilt. McCall who
suggests that culpable perpetrators “deliberately and culpably took a risk with their patients” 14 seem in concordance
with Brazier who contends, “only such conduct pursued
with disregard for the life of others should merit punishment”.15 To assist the jury to demonstrate culpability
they can consider the following factors that according
to Robson should be present: Awareness, Choice and
Control.16 This is contrary to the current test where
the defendant’s state of mind is not required. In other
to demonstrate culpability a defendant must be aware
that there is a risk if he acts or omit such an action. He
must also make a conscious choice to act or omit the
action. Finally he must be able to exercise control (failing to do so may warrant prosecution). Robson advocates a sliding scale in her model:
“….any advanced model must be capable of differentiating
between actions that are merely negligent, from acts that might
be properly labelled a violation. Consequently, as the emphasis is on the degree of negligence to be considered criminally
culpable this new model is labelled as the ‘sliding scale of
negligence”. 17
“We are provisionally proposing that a person is guilty of
manslaughter through gross negligence if:
1. that person causes death;
2. it would have been obvious to a reasonable person in the
defendant’s position that conduct involved a risk of death;
3. the defendant had the capacity to appreciate that his or her
conduct involved a risk of causing death; and
4. the conduct fell far below what could reasonably be expected
in the circumstances. We envisage a person’s reckless stupidity would be evidence that their conduct fell far below what
could reasonably be expected in the circumstances.” 9
These latter proposals offer a hybrid Adomako and
Cunningham reckless formulation. The term reckless
stupidity is a bizarre inclusion because it does not clarify what stupidity alludes to precisely. The proposals
however fall short. Quick dismissed the Law Commission proposals as “nothing more than a linguistic modernisation of the status quo”, which he contended failed to
address the “fundamental objection to negligence-based
criminal liability”. 10 Examining the proposed formulation above failed to be comprehensive enough. Nonfatal harm is cast aside. There is an attempt to bypass
the Caldwell failure and in doing so include elements
of subjective and objective recklessness. It is merely a
watered down GNM formulation with the suffix of
recklessness.
If culpability were central to the offence, if we
reintroduce a mens rea into the test, it would assist the
jury it would go a considerable way into addressing
the criticism of circularity. In Sellu the jury asked for
guidance from the judge.18 The flawed guidance
formed the grounds for appeal and conviction being
overturned.
Forgotten /Alternative concepts
Addressing Circularity: Inclusion of Culpability
The circularity issue raised of the original test of GNM
supremely being a question for the jury will continue
to cause concern unless there is clear guidance given
to the jury. The dictum “conduct of the defendant was so
bad in all the circumstances as to amount to a criminal act or
omission.” holds in so far that we define what we mean
by “conduct.” In Bateman we note of the behaviour of
a guilty defendant…. “showed such disregard for the life
and safety of others as to amount to a crime against the State
and conduct deserving punishment”.11 Ultimately the question for the jury is not how reckless or negligent, but
is the recklessness or negligence merely enough to be
considered criminal?
A reckless doctor, who takes an unnecessary risk,
which results in serious harm, would undoubtedly face
sanction. All doctors make mistakes and can find
themselves unwittingly in circumstances accused of
negligence. If serious harm results and the patient survives they may be sanctioned only by civil and regulatory action, yet if the patient dies they may fall foul of
criminal sanction. Thus it could be argued that the
state of mind of the doctor at the time of the breach is
crucial to assessing culpability and would determine
whether the actions of the doctor were criminal. Doctors accept that if they fall below an accepted standard
that they may be found negligent. They may however
find it unfair and distressing if they are held criminally
accountable for actions where they feel that were not
culpable.
The definition of culpable is “deserving to be blamed or
considered responsible for something bad”. If one subscribes
to the view that a mens rea as part of a test is necessary
then we must include a measure of culpability. In
other words we must determine whether the reckless
or negligent act was born of a “wicked mind”. It would
be seemingly unfair that if there is no criminal intent
proved then a defendant should not be guilty of the
offence. The Scottish formulation of placing culpability at the heart of any assessment seems attractive. In
assessing the mental state we need to determine, as
Robson suggested, the distinction between an error or
violation:
“the criminalisation of negligent conduct should only occur
when the defendant is aware of a risk, elects to run that risk
and had the opportunity to act differently” 12
The sentencing council’s guidance on descending
degrees of culpability are: deliberate, reckless, negligent and low/ no culpability. 19 It is thus inevitable that
recklessness is at a higher bar than negligence. This
supports Moore and Hurd’s suggestion that there is a
“threshold of vividity that divides recklessness from negligence,
although it is a sliding scale threshold”.20 But what would
help the jury further to assess culpability? Hannah
Quirk argued that the sentencing framework should
reflect the spectrum of culpability and the particular
circumstances in which doctors work. We have already
stated that Robson argued that for negligent conduct
to shown to be culpable and labelled a violation the
following factors should be present: Awareness, Choice
and Control.22 Without addressing these the jury maybe
The moral justification for GNM remains problematic, as the alleged perpetrator may not have had a
morally blameworthy state of mind.
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