Substantive Law Criminal law and tort Richard ONeill

Substantive Law Criminal law and tort Richard O’Neill University of Hertfordshire

Criminal and Civil cases • Criminal law – – – nature of crime actus reus mens rea types of offences defences • Tort law – nature of tort – torts • negligence • trespass to the person – remedies

Responsibility and Accountability • To whom do pharmacists have a responsibility? • To which persons/bodies might pharmacists be held accountable for acts and omissions?

Criminal law • aim of criminal law is to forbid certain types of conduct • offences comprise: – two elements - conduct + fault (actus reus and mens rea) – actus non facit reum nisi mens sit rea – an act does not make a person guilty unless the mind is also guilty – actus reus and mens rea must coincide (R v White (1910)) • strict liability offences (no mens rea) • burden of proof for both conduct + fault – beyond reasonable doubt

Actus Reus and Mens Rea • Elements of a crime actus reus + mens rea = crime • what is the actus reus? – all elements of the offence excluding the defendant’s ‘mental element’ – i. e. the definition of offences minus the mens rea requirements of the offence

Actus Reus • Actus Reus – the act (the external element) – a positive act • accused commits positive action – commisions • voluntary – an omission • accused fails to carry out an action they are obliged to do omissions – a state of affairs • usually strict liability offences • may or may not require an element of voluntariness – R v Larsonneur (1933) – R v Winzar (1983) subject to a requirement of causation

Actus Reus • voluntary • accused actions ‘free-willed’ – loss of voluntary control • automatism – R v Quick (1973) • reflex actions • physical force

Actus Reus • omissions – positive duty to act • statutory duty – R v Naughton (2001) • contractual duty – R v Pittwood (1902) • duty owed to family members – R v Gibbons and Proctor (1918) • duty to limit accidental harm – R v Miller (1983) • duty arising from relationship of reliance – R v Stone and Dobinson (1977)

Actus Reus • causation – causation in fact • the ‘but for’ test - but for the act in question, would the victim have died? – R v White (1910) – R v Pagett (1993) – causation in law • closeness of the link between the act and the death • act a ‘substantial and operating’ cause of the consequences – R v Smith (1959) • ‘chain of causation’ – R v Blaue (1975) • ‘thin/eggshell skull’ rule – defendant must take victim as he finds him

Actus Reus • causation – death following medical intervention – original attacker held liable for homicide • poor and possibly negligent treatment – R v Smith (1959) – R v Cheshire (1991) • switching off life support – R v Malcherek (1981) – grossly negligent medical treatment • break in chain of causation – R v Jordan (1956)

Actus Reus • strict liability offences – offence committed by actus reus alone – difficult to prove mens rea, e. g parking/speeding offences; Trade Descriptions Acts 1968 & 1972 – strict liability offence of displaying goods with incorrect description – statutory interpretation – where unclear as to mens rea - courts have to decide whether strict liability offence - Sweet v Parsley (1969)

Mens Rea • Mens Rea – guilty mind – the fault element – mental state necessary – e. g. knowingly; intentionally; maliciously; negligently; recklessly – intention • • direct intent indirect/oblique intent basic intent specific intent – recklessness – negligence

Mens Rea • Intention • intention vs motive – what is sought to be achieved vs the reason for acting • direct intent – aim or purpose – foreseeing and desiring the consequences • indirect/oblique intent (a presumption) – result a virtual certainty of defendant’s action and defendant knew this was the case » R v Woollin (1998)

Mens Rea • Offences of basic and specific intention • basic (general) intent crimes – mens rea specified as intention and recklessness – do not have to foresee consequences/harm beyond definition in actus reus • specific intention (ulterior intention) – – mens rea goes beyond actus reus further element in addition to basic intent desire to bring something about a specific consequence element of specific intent shown using a more subjective than objective test

Mens Rea • Recklessness – lower level of mens rea than intention • subjective recklessness – consciously take an unjustified risk though not necessarily desiring results – ‘Cunningham’ reckless (R v Cunningham (1957)) • objective recklessness – do not realise there is risk that would be obvious to an ordinary prudent individual – ‘Caldwell’ reckless (R v Caldwell (1982)) – criminal damage

Mens Rea • Negligence – failure to foresee consequences that have occurred although the reasonable man would – Court of Appeal: R v Prentice & Sulman: R v Adomoko, R v Holloway (1993) – House of Lords R v Adomoko (1994) • • existence of duty breach of duty causing death; death as a consequence of breach; and gross negligence which jury considered justify criminal conviction

Criminal law topics • Offences against property • Offences against the person – non-fatal • assault and battery • Ss 18; 20; 47 OAP – fatal - homicide • murder • manslaughter • Inchoate Offences – incitement; conspiracy; attempt • General defences

Criminal law topics • Offences against property (Theft Act 1968) – theft – dishonest appropriation of property …belonging to another… with intent to permanently deprive (s 3 Theft Act 1968) – robbery – steals and immediately before or at time …and in order to do so…uses force…or puts person in fear of being…subjected to force (s 8 Theft Act 1968) – burglary – enters building or part of building as a trespasser with intent to …steal…inflict GBH…rape. . commit unlawful damage, or … having entered building…. Commits or attempts to steal or inflict GBH (s 9 Theft Act 1968) – others include: • • • criminal damage deception blackmail handling stolen goods, etc

Criminal law topics • Inchoate Offences – defendant progresses part way to commission of an offence • incitement – suggesting the commission of an offence • conspiracy – agreeing to commit an offence • attempt – substantially committing the offence • General defences insanity (M’Naghten rules) infancy non-insane automatism intoxication (DPP v Majewski (1984)) self defence consent duress (threat) mistake necessity (‘duress of circumstances’) (R v Dudley and Stephens (1884))

Non-fatal offences against the person • Assault and Battery – common assault and battery • s 39 Criminal Justice Act 1988 • 216, 762 offences of common assault recorded in 2004/05 – Offences Against The Persons Act 1861 ss 18; 20; 47 – actus reus • assault – act intended to cause victim to apprehend immediate personal violence • battery – actual infliction of unlawful personal violence – mens rea • intention or recklessness

Non-fatal offences against the person • Non-fatal assaults – S 47 OAP • ‘assault occasioning actual bodily harm’ • actus reus – either an assault or battery – occasioning – rules of causation – foreseeable – actual bodily harm – physical/psychiatric • mens rea – intention or recklessness

Non-fatal offences against the person • Non-fatal assaults – s 20 OAP • ‘. . maliciously wound. . ’ • ‘. . maliciously … inflict grievous bodily harm. . ’ • actus reus – wound – break the skin – grievous bodily harm – serious harm • mens rea – maliciously – intention or recklessness

Non-fatal offences against the person • Non-fatal assaults – s 18 OAP • ‘. . maliciously … wound or cause … grievous bodily harm …with intent to do some grievous bodily harm. . ’ or • ‘. . maliciously… wound or cause … grievous bodily harm … with intent. . . to resist or prevent lawful apprehension. . ’ • actus reus – as for s 20 - a wound or grievous bodily harm – cause – wider than inflict • mens rea – specific intention – to cause grievous bodily harm

Non-fatal offences against the person • Non-fatal assaults – administering poison – – – • ss 28; 24 OAP actus reus • administration of a poison or ‘noxious thing’ s 23 ‘. . so as thereby to endanger the life. . ’ or ‘. . so as to. . inflict grievous bodily harm. . ’ mens rea • administration intentionally or recklessly S 24 mens rea • administration intentionally or recklessly and proof of further intent: • specific intent – ‘. . . with intent to injure, aggrieve, or annoy. . ’

Non-fatal offences against the person • Homicide – killing of another – if unlawful, it is either murder or manslaughter depending upon the state of mind of the accused – causation - must always prove that accused caused death – Law Reform (Year and a Day Rule) Act 1966 abolished old ‘year and a day’ rule – 859 homicide offences recorded in 2004/05 Source: Research Development & Statistics (CRCSG) Home Office Homicide Murder Infanticide Manslaughter Voluntary Involuntary

Murder • actus reus – causing death of another person • mens rea – malice aforethought – intention to kill or cause grievous (serious) harm Sir Edward Coke 1797: ‘Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any country of the realm any reasonable creature in rerum natura under the King's peace, with malice aforethought, either expressed by the party or implied by law, so as the party wounded or hurt die of the wound or hurt within a year and a day after the same’ Sir Edward Coke

Murder • unlawful killing – act factual legal cause of death (R v White (1910); R v Smith (1959)) • certain defences • human being – living; not foetus (Note: protecting ‘unborn child’ Infant Life Preservation Act 1929; Abortion Act 1967; OAP 1861) • Queen’s peace – exception of killing an enemy in war • Death within a year and a day – abolished in 1996; lifesupport/medical advances • malice aforethought – R v Moloney (1985) – intention to kill or cause grievous (serious) harm; merely foreseeing death as probable insufficient • crime of specific intent – direct (desired death) or oblique intent (death foreseen as virtually certain, though not desired)

Murder • mens rea – foresight and intention – where intention unclear – jury consider what defendant foresaw: more evidence that defendant foresaw death of GBH as a consequence of action, stronger the inference of intention (R v Hancock and Shankland (1986) – jury needs to be satisfied that the defendant foresaw death or GBH as ‘a virtual certainty’ (R v Nedrick (1986; R v Woollin 1998)) • mandatory sentence of life imprisonment (Murder (Abolition of Death Penalty) Act 1965 • patient on life support system – legally alive and capable of being murdered (R v Malcherek (1981) • newborn – protected once capable of independent existence

Manslaughter • actus reus – as for murder • voluntary – provocation – diminished responsibility – infanticide – suicide pact • involuntary – constructive – gross negligence

Manslaughter • Voluntary manslaughter – provocation • S 3 Homicide Act 1957 – diminished responsibility • S 2 Homicide act 1957 – infanticide • Infanticide Act 1938 • infanticide an alternative to murder preferred where: – mother killed child before it reached 12 months – medical evidence re balance of mother’s mind was disturbed – suicide pact • S 4 Homicide Act 1957 • NB if aids, abets, counsels or procures the suicide or attempted suicide of another – offence s 2 Suicide Act 1961

Manslaughter • Involuntary manslaughter – illegal and dangerous act (constructive manslaughter) • an act which is objectively dangerous and causes victim’s death • act must be unlawful/crime • defendant must have intended to commit unlawful act • act must be likely (objectively) to cause physical harm (not necessarily serious harm) – reckless manslaughter (gross negligence) • R v Adomako (1994) HL • negligence going beyond a mere matter of compensation • showing such disregard for life and safety as to amount to a crime

Manslaughter • reckless manslaughter (gross negligence) • • R v Adomako (1994) HL: duty of care breach of that duty gross negligence (‘…which the jury considers justifies criminal conviction…’) – any of the following states of mind: » indifference to an obvious risk » actual foresight of risk coupled with determination nevertheless to run the risk » appreciation of the risk and intention to avoid it but coupled with such a high degree of negligence in the attempted avoidance that the jury considers justifies conviction » inattention or failure to advert a serious risk which goes beyond mere inadvertence in respect of an obvious and important matter which the defendant’s duty demanded he should address

Tort Law • • definition aim and function relationship with others forms of liability branch of civil law types of tort negligence trespass remedies

Tort Law • French word ‘tort’ - a wrong • aim of: – compensating victim for damage, loss or harm caused – imposing: • duty to be careful – negligence • duty to respect autonomy – trespass to person • duty to tell truth about a person - defamation • duty not to interfere with neighbour’s land – nuisance • duty not to have dangerous premises – occupier’s liability • duty fixed by law and affecting all persons – does not arise from prior agreement such as contract or trust • branch of civil law based on claim that defendant (tortfeasor) has caused injury or loss

Tort Law • Fault element – depending upon tort • intention – knowing behaviour • malice – bad motive • negligence - carelessness – strict liability – no element of fault required Rylands v Fletcher (1868) • Lower standard of proof than criminal law demands – on the balance of probabilities • Torts include: – deceit; defamation; confidence; nuisance; occupiers’ liability; trespass; negligence

Trespass • categories: – trespass to person • assault; battery; false imprisonment – trespass of goods – trespass of land • actionable per se – no need to prove damage • requires a direct, physical act • indirect acts may have a remedy in other torts, – e. g. negligence or nuisance

Trespass to person - significance • ancient set of wrongs - little significance in personal injury litigation – more relevance to civil liberties/powers of police • OAP Act 1861 • common assault & battery - s 39 Criminal Justice Act 1988 • criminal courts able to make compensation order – s 35 Power of Criminal Courts Act 1973 • Sidaway v Governers of Bethlem Hospital (1982) – appropriate tort for personal injury from medical treatment is negligence not battery

Trespass to person • assault –act causing another to to reasonably apprehend immediate violence (frequently associated with battery) – typically requires » some movement and degree of proximity to person » more than ‘mere’ words? – but see Tuberville v Savage (1669) & R v Wilson (1955) » intention to frighten – no need for intention to use violence • battery – direct intentional application of force to another without consent – typically requires » intended physical contact with person’s body or clothing » no need for contact to be violent or hostile – F v West Berkshire Health Authority (1989) » defendant bears burden of proving consent

Trespass to person • false (wrongful) imprisonment – unlawful prevention of another person from exercising freedom of movement – typically involves » a direct, positive act preventing person from moving in any direction - Sayers v Harlow UDC (1958) Defences - include • consent (volenti non fit injuria – no injury can be done to a willing person) • self defence • lawful arrest • Statutory authority – e. g. breathalyser • parental authority

Tort of Negligence • Recent development in civil law • Donoghue v Stevenson (1932) – House of Lords decided: • possible to sue a manufacturer other than in law of contract – establishing the tort of negligence • Lord Atkin – tort “based upon a general public sentiment of moral wrongdoing for which the offender must pay” • manufacturer of goods that cannot be examined before they are used owes a duty of care to consumer • duty to take reasonable care that goods are safe • general principle that each of us owes a duty to take reasonable care when doing something that may affect others • Lord Atkin – compared this duty to the Christian duty towards our neighbours – a legal duty not to harm our neighbour – “Who is my neighbour? ”

Tort of Negligence • Principle new to courts – formed a precedent: – developed from snail in ginger beer to become a general legal principle – Daniel v White (1938) – chemical in lemonade burned throat • neighbour principle applied to person selling item consumed by an individual – Grant v Australian Knitting (1936) – chemical in underwear caused itching • neighbour principle applied to person selling item used by an individual – now applied to • • • treatment of patients drivers of vehicles professionals giving advice employers and employee’s working conditions etc

Elements of the tort of negligence • Duty – the defendant owed the plaintiff a duty of care in law • Breach – the defendant breached the duty of care • Injury – the plaintiff suffered some injury • Causation – the defendant’s breach of duty caused the plaintiff’s injury • Recoverability – the type of injury was reasonably foreseeable

Elements of the tort of negligence • Duty – Lord Atkin – we owe a duty of care to people if it is reasonable to foresee that they might suffer harm as a result of our acts and omissions – Anns v Merton Borough Council (1977) two-pronged test – where there was foreseeability and proximity there should be a duty of care unless there was a policy issue for holding that no duty existed – later considered to be too wide a test – Caparo Industries plc v Dickman (1990) three-pronged test • is loss reasonably foreseeable • is there sufficient proximity between the parties • is it fair, just and reasonable to impose a duty of care – special situations such as: • economic loss • psychiatric damage – ‘nervous shock’ • liability for acts of third parties

Elements of the tort of negligence • Breach – objective standard • Bolam v Friern Barnet Hospital Management Committee (1957) • Bolitho v City and Hackney Health Authority (1997) • Nettleship v Western (1971) – degree of risk • likelihood of damage occurring • potential seriousness of that harm • practicality of precautions • learners and skilled defendants – proof of breach • assistance of statute/criminal conviction • doctrine of res epsa loquitor (the facts speak for themselves)

Elements of the tort of negligence • Damage caused – ‘but for test’ • Barnett v Kensington Hospital Management Committee (1969) • Robinson v Post Office (1974) • Wilsher v Essex Area Health Authority (1987) – chain of causation • intervening events – remoteness of damage • direct consequences • reasonably foreseeable • Wagon Mound (1961)

General Defences in Tort • contributory negligence • consent – volenti non fit injuria – special case with rescuers • illegality – ex turpi causa non oritur actio • inevitable accident • mistake • necessity • Statutory authority • duress • Limitation – Limitation Act 1980

Remedies in Tort • damages – compensatory - restore plaintiff to position he would have been in had the tort not been committed – non-compensatory damages • • contemptuous nominal aggravated exemplary – personal injury compensation – special damages • pecuniary losses – earnings/expenses, etc. • non-pecuniary losses – pain/suffering, etc. • lump sum/structured settlements • injunctions (equitable remedy – discretionary) • deal with repeatable torts, e. g. defamation; nuisance • Interlocutory – before case is heard

Summary • Torts and criminal law – both attempt to make sure people behave in an acceptable way – moral implications