college: 2014

In terms of this case I must firstly discuss. Involuntary manslaughter. This occurs where there is an unlawful killing but no murder mens rea. This is not to be confused with voluntary manslaughter as that is where murder or GBH is present but the defendant has a special defence, with the maximum sentence of life however it is at the judge’s discretion to compose a suitable sentence.

When looking at this case Harry has committing an unlawful act (assault) when scaring Kim. In order to establish involuntary manslaughter the act by the defendant must be criminal, this is shown in the case of Lamb (1967) this was where two boys where playing with a revolver, resulting in one’s death, from this case it was established that; There was no unlawful act as no assault had been committed as the victim did not believe the gun would go off therefore he did not apprehend immediate unlawful personal violence. From this case Kim is terrified by Harry’s actions and it would be therefore found that he has committed an unlawful act. Also within this it is stated that an omission is not enough such as in the case of Lowe (1973) and Khan & Khan (1988). It’s shown that Harry has committed an unlawful act in which has led to Kim’s death this is known as Unlawful act manslaughter.

After we have established that it is an unlawful act we must see if the act was dangerous. For this we use an objective test which by looking at the case of Church (1966) which states “such all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm’”. In this the defendant does not have to realise that there was a risk of harm to the victim as shown in the case of Larkin (1943) Along with looking at the case of Goodfellow (1986) the unlawful act does not need to be aimed at a person. Also the risk of harm will usually be physical harm; however it can also be shock. (Mere ‘emotional disturbance’ is not enough.) This is shown in case such as Dawson (1985), however within this case these are irrelevant the only point would be the objective test, in which I find that a reasonable person would have recognised the risk of some harm.

When looking at this case we must then move onto the substantial cause of death; we must discuss causation and the facts to Harry being the Factual and legal causation to Kim’s death.
Firstly factual causation we look at the case of Pagett (1983) in which this case established the ‘but for’ test in this case Harry is liable for factual causation as ‘but for’ him driving the car towards Kim in order to scare her, he would not have substantial fatal injury’s. Next we look at the legal causation It’s shown that Leon committed the unlawful act.
However I must state that James could be classed as an intervening acts; due to the factor that he could be seen as a third party act due to his failure to tighten the bolt of the wheels. For this he could be charged with Gross negligence manslaughter (This I will discuss in detail further on).
Therefor Harry may not be found liable for legal causation. This would only be if it is grossly negligent such as in cases of; Smith (1959), Chester( 1991) and Jordan (1956).

However if he was to be found liable we must discuss if the unlawful act was the substantial cause of death in which I believe that if Harry had not have driven toward Kim to cause fear, Kim would not have obtained injury’s serious enough to cause death. To understand this we look at cases such as Cato (1976).

Next the act does not to be the sole cause of death, so long as it was not trivial this is shown in the case; A-G Ref (No 4 1980) 1982. Which if it was found that James was not an intervening act Harry’s act would be the sole cause of death, as he had the mens rea for assault which resulted in Kim’s death.

Finally it must be proven that the defendant had the mens rea for the unlawful act such as in the case of Newbury & Jones (1976), In this case it would be said that Harry had the mens rea for something such as assault and therefor would be found liable for the unlawful act manslaughter of Kim.

In terms of James within this case it would be said that he may have been a third party intervening act, which could affect Harrys case. The maximum sentence for involuntary manslaughter is life but the judge has the discretion to impose any suitable sentence. There are two types of involuntary manslaughter; gross negligence and unlawful act. The defendant James will face liability for gross negligence manslaughter for the death of Kim.
The leading case to understand this is Adomako (1994).
The key features to the law are;
1.A duty of care must exist on the part of the D towards the V.
2.There must be a breach of the duty resulting in death.
3. The negligence is ‘gross’
4.There is an obvious risk of death through the D’s conduct.

Firstly we must look if James owed Kim a duty of care. For duty of care we use the same basic principles that we gained from Donoghue v Stevenson 1932, in this case we gained the neighbour principle that Lord Atkin gave us. Lord Atkin said “you should take the reasonable care to avoid acts or omissions which you can reasonable foresee are likely to affect your neighbour. This duty of care can be contractual such as in Litchfield (1998), it can be non-contractual such as in Khan & Khan (1998), it can also be when both the defendant and victim are engaging in criminal activity such as in the case of Wacker (2002). However to this particular case the only relevant duty of care to Kim would be under the neighbour principle from Donoghue v Stevenson (1932) as James had taken on board the responsibility to fix Harry’s car, in which he should have been 100% certain that the car was eligible to be driven before the car was used as he then owes any road uses or pedestrians a duty of car to ensure they was no risk of death through faults in the car.

Next we must look at whether James breached his duty of care, in order to break the duty of care we must understand that it can either be through an act or an omission. For breach of duty of care the defendant must have fall below the standard expectation from a reasonable man carrying out the same activity in the same circumstances. For example, in court a doctor would always be compared to a reasonable doctor that is in the same field never that of a standard reasonable person. This is known as the Bolam principle and we gained this from the case R v Bolam. So when looking at this case I must as whether a reasonable man with the ability to fix a car, would have acted in the same way as James did. In this case I find that James was reckless and no reasonable person with the ability to fix a car would double check everything before allowing anyone to drive the car. Therefore, James has breached his duty of care.

Next we look at if the negligence was gross; this is stated in the case of Adomako, where ‘The defendants conduct must be so bad in the circumstances as to amount or a criminal act or omission.’ This was elaborated in the case of R v Bateman, in this case it was said that for negligence to be gross it must “It goes beyond a matter of mere compensation between subjects and shows such disregard for the life and safety of other as to amount to a crime against the state and conduct deserving of punishment.” We also must understand that for an omission or an act to be punishable as a criminal act it must be decided by a jury. So in order to establish whether the negligence was gross we must ask when James' breached his duty of care was it so gross that it goes past mere compensation. In this case it would be seen that James’ negligence was gross that it goes beyond mere compensation, since we have established this we must then ask did James' breach of duty of care she disregard for the life and safety of Kim? Again this would be yes, as a mere simple conversation with his wife should not have distracted him from completing the job. So we have proven that James' negligence was gross and should be punished as a criminal offence.

Finally there must be an obvious risk of death again this is shown in the case of Adomako (1994) or Misra & Srivastava (2004), this is clear to see that James’ negligence in his failure to properly fix a car and tighten up the bolts on the wheel could cause an obvious risk of death. This is also shown in the cases Finlay (2001) and Edwards (2001). In terms of this case we must ask did this omission show disregard to the victim’s life and safety. Again in this case the answer would be yes, as if the car was fixed correctly then Harry would have been able to move out of the way of Kim as he intended and therefore she would not have been killed. Therefore I find there was an obvious risk of death due to gross negligence.

Overall I believe that James and Harry are liable for the death of Kim under unlawful act manslaughter and gross negligence manslaughter.

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Tuesday, 18 November 2014

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Friday, 17 October 2014