EWJ June 2024 web - Journal - Page 49
quire into the state of the defendants mind. Their reasoning was that the “Adomako test” was considered to be
an objective test; liability being incurred by those whose
conduct causes harm to others regardless of whether
they saw a risk of herm occurring. Despite this their
Lordships conceded that there might be cases where
the defendants state of mind is relevant to the
jury’s consideration when assessing the grossness and
criminality of his conduct.
The disputes over the theories of choice, capacity and
character fuel the debate on the correct definition of
the mens rea.28 In relation to negligence the choice theory would support Cunningham recklessness but not
Caldwell recklessness or negligence where the defendant does not choose to commit a crime. The capacity
theory would permit some convictions based upon
negligence but only if the defendant could act nonnegligently. Some negligent crimes could be supported by the character theory only if the defendant
did not care enough about other people.
Rowley v DPP concerned Malcolm Rowley, a 30-yearold male who suffered from quadriplegia, microcephaly and epilepsy.25 He was in residential care and
drowned in a bath when left unattended. Her mother
brought an action challenging the decision of the
Crown Prosecution Service not to prosecute care
providers. Her appeal against the decision was not
successful. The DPP had considered that a lack of
awareness of risk on the part of the carer was a factor
weighing against the existence of an obvious risk of
death posed by the neglect. Kennedy LJ commented
in reference to GNM:
Criminality and Culpability
The imposition of criminal liability is based upon
normative assumptions. These include: capacity, conduct, fault and defence. Considering individuals as independent, rational and free-willed allows society to
hold them to account. But in doing so must protect
their procedural safeguards during investigation and
prosecution.
R v Misra, and R v Srivastava was a joint appeal by two
doctors who were convicted of GNM following the
death of a young previous fit man from sepsis following an orthopedic operation.29 The patient died of
toxic shock as a result of an untreated infection. The
arguments for the appellants, in addition to criticising
the Adomako formulation, also suggested that the test
failed to meet the standards of certainty required
under Articles 6 & 7 of the European Convention of
Human Rights.,30 31 Under these Articles they argued
that they had been denied the right of a fair trial and
the ambiguity and uncertainty in the test suggested it
was not possible to determine whether the actions
were criminal. Lord Justice Judge was quite clear that
though there was an element of circularity the instructions to the jury were clear:
“ It is clear from Lord MacKay said that there is a fifth
ingredient: “criminality” (albeit defining the ingredient in this
way “involves an element of circularity”) or “badness”. Using
the word “badness”, the jury must be sure that the defendant’s
conduct was so bad as in all the circumstances to amount “to
a criminal act or omission”.
This expands on what Lord Hewart in Bateman said:
“ to amount to a crime against the state and conduct deserving punishment”, which refers to conduct that goes beyond merely a call for compensation but worthy of
criminal punishment.26 This case introduced further
inconsistency; as Rowley v DPP considered the blameworthiness of the defendant, in direct contrast to A-G
ref no 2 of 1999.27 It would seem it was possible to selectively discard the mental element of the offence to
fit the circumstances of the offence.
“ …the jury is not deciding whether the particular defendant
ought to be convicted on some unprincipled basis. The question for the jury is not whether the defendant’s negligence was
gross, and whether additionally, it was a crime, but whether his
behaviour was grossly negligent and consequently criminal.
This not a question of law, but one of fact, for decision in the
individual case.”
Due to the divergence of considering blameworthiness, the question still remains: is it appropriate to
hold a person criminally responsible when they are
not even aware that their actions are liable to cause
harm to another? Put another way should negligence
be a basis of fault? The argument against making people liable for negligence is that negligence, in application of a poor standard of conduct, does not have the
same culpability as conscious-risk taking or recklessness. A negligence action could be considered a mistake and is unconscious. What of gross negligence;
how is the defendant state of mind relevant to the
question of whether their conduct would amount to
the crime of manslaughter? There is a range of possibilities that should be considered. First, the test for
gross negligence is considered to be objective and subjective recklessness is not a prerequisite to a finding of
gross negligence. Second, while evidence of a state of
mind is generally irrelevant, it may have influence on
a jury as they deliberate the grossness of the criminality. Third, evidence of a subjective state of mind is considered relevant to GNM because it may be considered
part or all the circumstances that need to be addressed
by the jury.
EXPERT WITNESS JOURNAL
Despite the tests shortcomings it was concluded that
there was no uncertainty in this regard and consequently no offence against Article 7 (no punishment
without law). This then disposed of the Article 6 argument (the right to a fair trial). As a result the
appeals were dismissed and the convictions stood.
In Rudling Sir Brian Leveson had eloquently distilled
the state of the law with regards to the components of
GNM.32 These critical ingredients, taken from R v
Prentice, Adomako and Holloway; and R v Misra and R v
Srivastava were that:
“ Being a breach of an existing duty of care which it is reasonably foreseeable gives rise to a serious and obvious risk of
death and does, in fact, cause death in circumstances where,
having regard to the risk of death, the “conduct of the defendant was so bad in all the circumstances as to amount to a
criminal act or omission.”33
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JUNE 2024