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de Than & Heaton: Criminal Law 4e

Chapter 02

R v STONE; R v DOBINSON [1977] 2 All ER 341 (CA)
AIREDALE NATIONAL HEALTH SERVICE TRUST v BLAND [1993] 1 All ER 821 (HL)
R v MILLER [1983] 1 All ER 978 (HL)
R v PAGETT (1983) 76 Cr App R 279 (CA)
R v BLAUE [1975] 3 All ER 446 (CA)
R v SMITH [1959] 2 QB 35 (CMAC)
R v JORDAN (1956) 40 Cr App R 152 (CA)
R v CHESHIRE [1991] 3 All ER 670 (CA)
THABO MELI AND OTHERS v R [1954] 1 All ER 373 (PC)
R v LE BRUN [1991] 4 All ER 673 (CA)
KENNEDY (NO. 2) [2007] UKHL 38

R v STONE; R v DOBINSON [1977] 2 All ER 341 (CA)

Facts
Stone, a 67 year old man who was partially deaf and almost blind, lived with his younger partner Dobinson and Stone’s adult son Cyril. All of them had capacity issues. Stone’s anorexic sister, Fanny, came to live with them and her condition worsened. After Stone and Dobinson had made ineffectual attempts to help Fanny, including trying to care for her and wandering the streets in a failed search for her doctor. Fanny died.

Decision
Stone and Dobinson had undertaken to care for Fanny, and hence the jury had been entitled to find that they had assumed a duty to care for her. Once Fanny became unable to take care of herself, they were under a duty either to summon help or to care for her themselves.

Key principle
Although as a general principle there is no liability for omissions, there may be a common law duty to act through voluntary assumption of responsibility for another person.


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AIREDALE NATIONAL HEALTH SERVICE TRUST v BLAND [1993] 1 All ER 821 (HL)

Facts
As a result of a crush at the Hillsborough football stadium, B suffered irreversible brain damage and was left in a persistent vegetative state with no hope of recovery of any functions at the conscious level. The hospital authority with the support of B’s parents sought a declaration that it was lawful for its doctors to discontinue life-sustaining treatment and feeding through a nasal tube, without which B, as subsequently happened, would die within a matter of days.

Decision
The House of Lords unanimously confirmed the grant of the declaration sought but recognised that this civil decision would not be binding on a criminal court. A doctor’s decision to discontinue methods of life support could properly be categorised as an omission, and was in the best interests of the patient. According to Lord Mustill, ‘Now that the time has come when Anthony Bland has no further interest in being kept alive, the necessity to do so, created by his inability to make a choice, has gone; and the justification for the invasive care and treatment together with the duty to provide it have also gone. Absent a duty, the omission to perform what had previously been a duty will no longer be a breach of the criminal law.’

Key principle
The doctor-patient relationship: discontinuing treatment is an omission and so, if no duty is breached by doing so, then it will be unlawful.


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R v MILLER [1983] 1 All ER 978 (HL)

Facts
The appellant described the facts as follows in his statement to the police: ‘Last night I went out for a few drinks and at closing time I went back to the house where I have been kipping for a couple of weeks. I went upstairs into the back bedroom where I’ve been sleeping. I lay on my mattress and lit a cigarette. I must have fell to sleep because I woke up to find the mattress on fire. I just got up and went into the next room and went back to sleep. Then the next thing I remember was the police and fire people arriving. I hadn’t got anything to put the fire out with so I just left it.’ The prosecution argued that he was reckless after he awoke and discovered the fire, in that he did not make any attempt to put it out. He was convicted of arson under ss. 1(1) and 1(3) of the Criminal Damage Act 1971- the jury only took 22 minutes to reach their verdict. The CA upheld the conviction by treating the whole course of conduct D described as one continuous act, with mens rea existing at some point during that act.

Decision
The House of Lords upheld the conviction, but preferred to analyse the situation in terms of ‘duty’ and ‘responsibility’ rather than ‘continuous act’. According to Lord Diplock, ‘I cannot see any good reason why, so far as liability under criminal law is concerned, it should matter at what point of time before the resultant damage is complete a person becomes aware that he has done a physical act which, whether or not he appreciated that it would at the time when he did it, does in fact create a risk that property of another will be damaged, provided that, at the moment of awareness, it lies within his power to take steps, either himself or by calling for the assistance of the fire brigade if this be necessary, to prevent or minimise the damage to the property at risk. . . .’

Key principle
Where D creates a dangerous situation and, after becoming aware of the danger, fails to take steps to prevent harm caused by it, he may be liable in criminal law.


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R v PAGETT (1983) 76 Cr App R 279 (CA)

Facts
D, who was under siege from armed police, used his girl friend as a human shield. He fired his shotgun at police, who fired back in self-defence, shooting and killing the girl friend. D appealed against his conviction for manslaughter.

Decision
According to Lord Goff, ‘There can, we consider, be no doubt that a reasonable act performed for the purpose of self-preservation, being of course itself an act caused by the accused’s own act, does not operate as a novus actus interveniens. . . . if a reasonable act of self-defence against the act of the accused causes the death of a third party, we can see no reason in principle why the act of self-defence, being an involuntary act caused by the act of the accused, should relieve the accused from criminal responsibility for the death of the third party.’

Key principle
The effect of non-voluntary interventions by third parties on causation; the accused’s act need not be the sole, nor even the main, cause of the victim’s death for it to be held to have caused the death.


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R v BLAUE [1975] 3 All ER 446 (CA)

Facts
D stabbed P repeatedly, piercing her lung. P refused a blood transfusion because she was a Jehovah’s Witness and died. Medical evidence established that she would have lived had she had the transfusion. D appealed against his conviction for manslaughter, claiming he had not caused P’s death, and that P’s decision to refuse the transfusion had been unreasonable.

Decision
The stab wound had caused the death, not the girl’s beliefs. According to Lawton LJ, ‘It has long been the policy of the law that those who use violence on other people must take their victims as they find them. This in our judgment means the whole man, not just the physical man. It does not lie in the mouth of the assailant to say that his victim’s religious beliefs which inhibited him from accepting certain kinds of treatment were unreasonable. The question for decision is what caused her death. The answer is the stab wound. The fact that the victim refused to stop this end coming about did not break the causal connection between the act and death.’

Key principle
D must take his victim as he finds him, including his beliefs.


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R v SMITH [1959] 2 QB 35 (CMAC)

Facts
P, a soldier, had been stabbed twice with a bayonet. One wound was more serious than anyone realised. A series of errors and accidents led to his death; another soldier tripped and dropped him twice while carrying him off for medical treatment, and since the seriousness of P’s condition had not been realised, on reaching the medical centre he joined the end of a long queue. He was then given medical treatment described by the court as ‘thoroughly bad’. If he had been treated promptly and correctly then his chances of recovery might have been as high as 75%.

Decision
Death resulted from the original wound. According to Lord Parker CJ, ‘if at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it in another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound. . . .’

Key principle
D’s act must be the operative and substantial cause of a death for him to be liable for that death. Bad medical treatment will not necessarily break a chain of causation.


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R v JORDAN (1956) 40 Cr App R 152 (CA)

Facts
D stabbed P in the intestines twice, P was admitted quickly to hospital and the wound was stitched. The wound was mainly healed when doctors decided to administer antibiotics to prevent infection. Sadly P was allergic to the antibiotic used and died after two doctors had given him it. There were also other medical errors in the case.

Decision
Death resulting from any normal medical treatment for a criminally-inflicted injury can be regarded as caused by the injury. But this had not been normal treatment; it had been ‘palpably wrong’ in at least two separate ways. Hence the original attack could not be regarded as the cause of death.

Key principle
Medical treatment which is ‘palpably wrong’ may break the chain of causation from an original attack.


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R v CHESHIRE [1991] 3 All ER 670 (CA)

Facts
D shot P in the leg and stomach, seriously wounding him, after an argument at the ‘Ozone’ fish and chip shop in Greenwich. P developed breathing difficulties and a tracheotomy tube had to be inserted in his windpipe. It was in place for four weeks. Some two months after the shooting, P died whilst still in hospital because his windpipe became obstructed due to a constriction where the tracheotomy had been performed. This was a rare but not unknown complication. There was medical evidence that the initial wounds were no longer life-threatening and that death was due to a negligent failure of the hospital staff to diagnose and treat the problem caused by the tracheotomy.

Decision
According to Beldam LJ, ‘[W]hat we think does emerge from . . . the . . . cases is that when the victim of a criminal attack is treated for wounds or injuries by doctors or other medical staff attempting to repair the harm done, it will only be in the most extraordinary and unusual case that such treatment can be said to be so independent of the acts of the accused that it could be regarded in law as the cause of the victim’s death to the exclusion of the accused’s acts.’ Medical negligence may not prevent the original attacker bearing criminal responsibility for the death.

Key principle
‘Even though negligence in the treatment of the victim was the immediate cause of his death, the jury should not regard it as excluding the responsibility of the accused unless the negligent treatment was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant.’


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THABO MELI AND OTHERS v R [1954] 1 All ER 373 (PC)

Facts
The four appellants plotted to murder the victim. They lured him to a hut, got him drunk and hit him over the head. Possibly believing (wrongly) that he was dead, they threw him over a cliff and set up the scene to look like an accident. In fact the victim died later of exposure at the bottom of the cliff. It was argued that the facts consisted of two separate acts, the attack in the hut and the disposal of the ‘body’, and that they were separate: since the first act had mens rea but did not cause the death, and the second caused the death but was not accompanied by mens rea, it was argued that the appellants could not be guilty of murder.

Decision
According to Lord Reid, ‘ It appears to their Lordships impossible to divide up what was really one series of acts in this way. There is no doubt that the accused set out to do all these acts in order to achieve their plan, and as parts of their plan; and it is much too refined a ground of judgment to say that, because they were under a misapprehension at one stage and thought that their guilty purpose had been achieved before, in fact, it was achieved, therefore they are to escape the penalties of the law. Their Lordships do not think that this is a matter which is susceptible of elaboration.’

Key principle
Where the actus reus consists of a series of acts or can be regarded as ‘one transaction’, it is sufficient that mens rea existed at some point during the conduct.


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R v LE BRUN [1991] 4 All ER 673 (CA)

Facts
D knocked his wife, P, unconscious in the course of an argument in the street. While he was trying to drag her body along the street to avoid detection, he lost his grip. P’s head hit the pavement, fracturing her skull and causing her death. D appealed against his conviction for manslaughter. The facts differed from Thabo Meli in that there was no preconceived plan to kill P.

Decision
According to Lord Lane CJ, ‘It seems to us that where the unlawful application of force and the eventual act causing death are parts of the same sequence of events, the same transaction, the fact that there is an appreciable interval of time between the two does not serve to exonerate the defendant from liability. That is certainly so where the appellant’s subsequent actions which caused death, after the initial unlawful blow, are designed to conceal his commission of the original unlawful assault. . . .
In short, in circumstances such as the present, which is the only concern of this court, the act which causes death, and the necessary mental state to constitute manslaughter, need not coincide in point of time. ‘

Key principle
The actus reus and mens rea of a homicide offence need not coincide precisely in time where D causes death while attempting to conceal his original attack. The ‘one transaction’ principle applies.


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KENNEDY (NO. 2) [2007] UKHL 38.

Facts
At V’s request, D sold some heroin to V, made up a syringe of it and handed it to V who injected himself with it. D left and V died about an hour later from the effects of the injection. D was convicted of unlawful act manslaughter on the basis that, by making up the syringe, he encouraged V to inject. The Court of Appeal (twice) upheld the conviction, rather than finding that V’s self-injection broke the chain of causation as a voluntary act of the victim. Appeal to the House of Lords was eventually successful.

Decision
The question for the House of Lords was , ‘When is it appropriate to find someone guilty of manslaughter where that person has been involved in the supply of a class A controlled drug, which is then freely and voluntarily self- administered by the person to whom it was supplied, and the administration of the drug then causes his death?’ The answer was, ‘never’.

Key principle
A voluntary and informed decision by a victim with full capacity is not caused by another; and hence a supplier of drugs cannot cause them to be administered when V self-injects.


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