Gross negligence manslaughter
a) the test for liability- Adomako 1995, confirmed in Misra 2005. 1) was there a duty of care to the deceased? (this was borrowed from tort law) 2) was that duty of care breached? (can be breached by act or omission) 3) did the breach of duty cause (or significantly contribute) to the death of the victim? 4) was the breach so grossly negligent that death was foreseeable? (Singh 1999)
'The essence of the matter which is supremely a jury question, is whether, having respect to the risk of death involved, the conduct of the defendant was so bad in all circumstances as to amount in their judgement to a criminal act or omission' MacKay R v Adamako 1995 It is an objective test, the test has remained unchanged. A momentary lapse can count.
b) examples of GN- R v Waker 2003, R v Kite and OLL 1996, R v Adamako 1995 and R v Misra 2005.
c) is there a (relevant) moral distinction between medical and other contexts? cases are treated differently, some call 'medical manslaughter'. R v DPP ex parte Jones 2000.
d) the significance of pre-trial discretionary decision making- Two stage sequential test- i) the evidential test- is there sufficient evidence? Needs to be a reasonable prospect of conviction. ii) the public interest test- is prosecution in the public interest? Quite often merge the two tests.
e) the reasonable v unreasonable jury- objective test- what would a reasonable person do? Element of subjectiveness put in the test. CPS emphasised the subjective recklessness of Dr's wanted evidence of 'badness'. Expected that juries will have the same sympathies as prosecutors.
f) the significance of 'badness'- CPS prosectutors- 'you need something more than a serious error of judgement, you need something 'dirty' something the jury can latch onto.' 'yes I suppose the one off pure mistake is probably going to be dropped, those kinds of cases where there is little culpability, it is in no-ones interests to prosecute those.' 'Some judges dont understand gross negligence and have a negative reaction to it and sometimes this influences the jury, the judge just doesnt want the doctor in their court. We know this.'
g) the fifth test- 'it is clear from what Lord MacKay said in Adamako that there is a fifth ingredient: criminality or badness. Using the word badness the jury must be sure that the defendants conduct was so bad in all the circumstances to amount to a criminal act or omission.' Kennedy in Rowley v DPP 2003. CPS using this test, no one else knew it existed. Appeals since Rowley havent mentioned this 5th test.
Is following Rowley a 'disingenuous choice (not sincere)'? Being disingenuous when they say they apply in a formalistic way. Choosing law they want to apply and doing legal tests accordingly. Exercise discretion. Cant just see from text book.
Homicide and joint enterprise
a) convicting where the evidence does not point clearly to D1 or D2- R v Lane and Lane 1986 and restated in R v Aston and Mason 1992.
b) the basis for joint enterprise liabilty- liability is constucted on the basis that if two or more people embark on a joint unlawful enterprise, then all parties should be held liable for the agreed consequences of that enterprise. This is a form of secondary liability. Principal- person who does the act. Secondary- encourages or assists.
S.8 Acessories and Abettors Act 1861- secondary can be prosecuted and punished as if he were the principle.
No pre planning is required- R v Mendez and Thompson 2010.
c) three forms of enterprise liability- 1) where two or more people join in committing a single crime in circumstances where they were, in effect, all joint principals. R v ABCD 2010.
2) Where D assists or encourages P to commit a single crime. In this scenario, P, with the fault element, carries out the conduct element alone. D is an accessory (assists or encourages the offence). D does not need to be present at the scene of the offence. P is liable as a principal. D's liability as a secondary party is based on proving: D's giving of assistance or encouragement to P: R v Clarkson 1971, R v Jones and Mirrless 1977, D's intent to assist or encourgage: same cases as above. and D's knowledge of the essential elements of P's offence: Johnson v Youdon 1950.
3) where P and D participate together in one crime (crime A) and in the course of it P commits a second crime (crime B) whch D had foreseen he might commit. R v Chan Wing Siu 1995, R v Powell R v English 1999, R v Rahman 2008, R v Yemoh 2009, R v Mendez and Thompson 2010 and R v Carpenter 2011.
d) transferred malice- R v Gnango 2011.
e) limitations on the scope of joint enterprise- Persons will not be liable where P's act is fundamentally differen to that foreseen by D (limited, interpreted narrowly) or D withdraws from the joint enterprise before the offence is committed (have to really remove yourself).
f) context to the current debate- Rise of gang violence- big issues, intimidating, gun and knife use and gang ****. Prosecuting gangs is popular, seen as being active. Really taken off.
CPS date on murder and manslaughter cases where more than one defendant was charged- 121 homocide cases used 423 defendants for cases.
Problems with the data- not of joint enterprise, just cases with more than one defendant.
Results of Bureau of Investigative Journalism FOI request analysis (pressure group for freedom of information requests) - 'in homocides involving four or more defendants it was more likely that a defendant would eventually be acquitted- suggesting people may be being scooped up into serious prosecutions without there being a strong enough evidence against them. The impact this can have on an innocent persons life is huge' 1853 prosecuted for homicide in charges that involved more than 4 people in 2005-2013. 17.1% of homicide cases. Derek Bentley was hanged in a group enterprise.
g) recent high profile cases-
Dewayne Lock- life for joint liability murder- Judge Roberts QC said 'there is no evidence to establish who was carrying the gun and pulled the trigger. The jury were satisfied that each defendant was knowingly part of a joint venture which involved going out armed with a loaded gun to confront other persons knowing the gun was ready to fire if the situation arose... All went out as an armed group, one might say as a pack, to hunt down and confront whoever it was who had knocked on Dwayne Locks door looking for him. All relied on the code of silence which people are not expected to help the police.' Making a lesson that all will pay in that instant.
Jordan Cunliffe- 15, convicted with 3 others of murder of Newlove who was beaten to death. He did die from one single blow but couldnt establish who dealt that. He said he was present but claimed to not have taken part. 12 years.
Alexander Henry- 40 second punch up. Fled scene before the knife for stabbing was used. He said he wasnt aware of the knife. Wasnt clear who had the knife but the fact he came to the call of the principal made him liable.
Gary Dobson and David Norris- racist murder of Stephen Lawrence. Convicted second time as they were involved in the gang attack that led to murder.
h) DPP's guidance- Simon Natas (criminal defence lawyer)- 'the fundamental problem - which these guidelines do not change- is that under joint enterprise the bar is set too low and can result in miscarriages of justice. People are convicted of very serious offences, even murder, when they havent intended that the offence should be committed.'
i) fundamental conflicts and incompatible goals- Lord Phillips- 'joint enterprise is capable of producing injustice, undoubtedly. You have to rely on juries and on the judge to more or less say who was involved and how. There is huge discretion on how it is used by prosecutors.' 'Its very complicated for juries and falls to the judge to do his best to explain things to the jury. Some of the scenes of group violence are so horrifying they can leave a jury willing to convict anyone who was there.'
David Ormerod (Law Commissioner)- 'unless the law is clear- and I'm not certain it is- then you increase risk of injustice. If the law is unclear it can be applied in an inconsistent way. It's possible because of the complexity of the law that it has been applied incorrectly.'
Damian Green (Justice Minister)- 'joint enterprise law has enabled some of the most serious offenders to be brought to justice. It ensures that if a crime is committed by two or more people, all those involed can potentially be charged and convicted of that offence. Sentencing in individual cases is a matter for the courts. We have no plans to change the law in this area.'
Reforming the law of homicide
'the present law on murder is unsatisfactory... in a nutshell the basic offence is too broad and the available defences are too narrow and the resulting injustices are much exacerbated by the fact that it carries a mandatory life sentence. The consequence is to thrust into the same legal boat both torturers and mercy killers- and women who with premeditation kill their abusive partners, however vile or violent they may have been' - Spencer Messing Up Murder 2008.
a) is murder too broad? 'murder, as every practioner of the law knows, though often described as one of the utmost heinousness, is not in fact necessarily so, but consists of a whole bundle of offences of vastly differing degrees of culpability, ranging from brutal, cynical and repeated offences like the so called Moors murderers to the almost venial, if objectively immoral 'mercy killings' of a beloved partner' Lord Hailsham in R v Howe 1987.
Is the label unfairly placed on some people? Strong title. Mercy killers may not deserve this. Voluntary euthanasia also or if you only intended GBH.
Does the mandatory life sentence that is attached to that label lead to injustice/ inproportionate punishment? No discretio to separate the huge amount of crime in this section. Could use American degrees system.