cases - chapter 2

Winzar v Chief Constable of Kent (1983) The Times, 28 March,

D taken to hospital on stretcher

D was found drunk at hospital, told to leave

Police then brought D to their car on the highway outside the hospital

D is charged with being 'found drunk' on the highway

Magistrates court: guilty of s12 offence

Divisional court: conviction upheld

Larsonneur (1933) 24 Cr App R 74

D brought into Uk against her will by police

Then D charged with landing in the UK illegally contrary to the Aliens Order 1920

Ahmad (1986) 84 Cr App R 64.

Act may not taken to mean omission

D, who was V's landlord, omitted to undertake essential work that left V's home uninhabitable

D intended to force V to leave.

D was charged with 'doing acts calculated to interfere with [V's] peace and comfort' (Protection from Eviction Act 1977) but found not guilty on the basis that 'doing acts' could not be satisfied by an omission

Speck [1977] 2 All ER 859

Act can be taken to mean omission

For example, where D remains motionless in response to sexual touching from a child, it has been held that they commit a sexual offence even where the terms of that offence require D to have acted

Gibbins and Proctor (1918) 13 Cr App R 134.

Homicide offences can be committed by omission

omission due to duty to act of parent's duty to care for child

• a man and woman were convicted of murder on the basis of their omission to feed the man’s child (V). 

• They had a duty to feed the child, they breached that duty, and they satisfied the mens rea of murder because they had an intention to cause serious harm.

Santana Bermudez [2004] Crim LR 471.

Non-fatal offences against the person can be committed by omission:

• D misinformed a police officer that he did not have any needles on his person and was therefore liable when the officer (V) was pricked during the personal search. Finding omissions liability in such cases is surely correct.

• With reference to Gibbins above, for example, it would be absurd if D was liable for causing death to their child by omission, but would avoid any liability for lesser crimes if the police had intervened at a stage when V was seriously harmed but not yet dead.

Miller [1983] 2 AC 161.

Property offences/Arson can be committed by omission, Duty to act arising after creating the danger

• D was convicted of arson when, having inadvertently started a fire, he did not act to try and extinguish the fire or call for assistance.

• D, a squatter in V's house, went to sleep holding a lit cigarette. He awoke to find the mattress smouldering, but did nothing except move to an adjoining room. The fire caused extensive damage and D was charged with criminal damage based on his omission to tackle the smouldering mattress or alert the authorities. The duty to do so arose from his inadvertent creation of the dangerous situation.

• Crown Court: guilty of criminal damage.

• Court of Appeal: conviction upheld on appeal.

• House of Lords: conviction upheld on appeal.

Dytham [1979] 3 All ER 641

Common law offence of misconduct in public office (offence-specific duty)

D, a police officer, was charged with misconduct in public office when, while on duty, he failed to intervene in an incident in which V was kicked to death by a nightclub doorman 30 yards away. The offence of misconduct in public office creates a clear duty for public officials to act in a reasonable manner.

Crown Court: guilty of misconduct in public office.

Court of Appeal: conviction upheld on appeal.

Pittwood (1902) 19 TLR 37

Contractual duty to act - contract of employment

D, a railway crossing gate-keeper, opened the gate to let a cart cross the lines and then went to lunch, forgetting to close it again. As a result, a subsequent cart collided with a train, killing the train driver. D was charged with manslaughter for his omission to close the gate (based on a contractual duty).

Trial court: guilty of gross negligence manslaughter.

Hood [2004] 1 Cr App R 431

Omission due to duty to act of duty to care for married partner

D omitted to summon help for three weeks after his wife (V) fell and suffered broken bones. V died as a result. D was charged with manslaughter on the basis of breaching his familial duty to assist.

Crown Court: guilty of gross negligence manslaughter.

Court of Appeal: conviction upheld on appeal.

Lloyd-Jones [2023] EWCA Crim 668

omission due to duty to act of parent's duty to care for child

neglect of disabled daughter

Heath [2023] EWCA Crim 109:

omission due to duty to act of parent's duty to care for child

child cruelty against son with asthma

Clarke [2022] EWCA Crim 1109

omission due to duty to act of parent's duty to care for child

neglect of disabled daughter.

Nicholls (1874) 13 Cox CC 75

Explicit promise of care

D, V's grandmother, agreed to take care of V after the death of V's mother. V was neglected by D and died. D was charged with gross negligence manslaughter based on the duty arising from an explicit assumption of care.

Trial court: guilty of gross negligence manslaughter.

Instan [1893] 1 QB 450

Implicit promise of care

D, V's niece, moved into V's house. V became extremely unwell with a gangrenous leg and was unable to look after herself. D continued to live in the house and eat V's food, etc, but she did not care for V or summon help. V died and D was charged with gross negligence manslaughter based on the duty arising from an implicit assumption of care.

Crown Court: guilty of gross negligence manslaughter.

Miller [1983] 2 AC 161

Evans [2009] EWCA Crim 650

Miller principle extended in Evans —- 1, D need only contribute to the dangerous situation as opposed to being its cause; 2, D need not be subjectively aware of the danger created (which had been assumed from Miller) but that a duty may also arise when D objectively should have realised a danger was created 

• D, V's half-sister, supplied her with heroin which she self-administered. V showed symptoms of an overdose. D stayed with V but did not alert the authorities for fear of personal liability for supplying the drugs. V died and D was charged with gross negligence manslaughter on the basis of her omission to aid V. The duty arose from her contribution to the dangerous situation through drug supply.

• Crown Court: guilty of gross negligence manslaughter.

• Court of Appeal: conviction upheld on appeal.

Stone and Dobinson [1977] 2 All ER 341

Limitation of assumption of duty of care - it remains unclear exactly how much, or how little, D must do before a duty will arise confusion regarding breach of duty

• D1 (a man of low IQ) and D2 (described as 'ineffectual and inadequate') took in D1's sister (V) to live with them. V suffered from anorexia nervosa which led her to avoid food eventually she became confined to her bed. D1 and D2 made some incompetent efforts to feed and clean V, and contact a doctor, but eventually stopped. V later died in appalling conditions. D1 and D2 were charged with gross negligence manslaughter on the basis of their omission. The duty was created by a voluntary assumption of care.

• Crown Court: guilty of gross negligence manslaughter.

• Court of Appeal: conviction upheld on appeal.

Broughton [2020] EWCA Crim 1093

Even if D could have reduced the risk of the harmful result by 90 per cent (ie by acting reasonably), a 10 per cent chance that the result would have happened anyway means that we cannot say in law that D's omission caused the result.

• D supplied his girlfriend, V, with a cocktail of controlled drugs at a festival. She self-administered the drugs. She then experienced a violent reaction but D did not call for medical assistance, despite pleas from others to do so. Instead, he video-recorded V's 'trip' as her condition deteriorated. D was convicted inter alia of manslaughter by gross negligence his duty arising from having contributed to the dangerous situation when supplying drugs.

• Crown Court: guilty of gross negligence manslaughter.

• Court of Appeal: allowing the appeal and quashing D's conviction. There was no clear evidence that V died because of D's neglect. There was only evidence that this had 'drastically reduced her chances of survival', but that alone cannot suffice. A medical expert gave evidence that had V received medical attention by a particular time in the evening, she would have stood a 90 per cent chance of survival.

Wood Treatment [2021] EWCA Crim 618.

Even if D could have reduced the risk of the harmful result by 90 per cent (ie by acting reasonably), a 10 per cent chance that the result would have happened anyway means that we cannot say in law that D's omission caused the result.

the factory owners were alleged to be responsible for deaths caused by an explosion. There was evidence that the owners had neglected three of the machines that could have been the cause of the explosion, but the expert evidence could not exclude the possibility that the explosion arose from a fourth machine. That machine had been maintained. It was not possible for a jury to be sure that 'but for' the owners' neglect there would not have been a fatal explosion.

Fagan [1969] 1 QB 439. *Discussed further in Chapter 4.3.2.

The decision whether to classify D’s conduct as an act or omission is one that is made on a case-by-case basis 

Actus reus as a continuing act  – the mens rea was formed after the initial act but the act was a continuing act 

• D accidentally drove onto a police officer's foot and then, realising what had happened, rested the car there intentionally. D's conduct was interpreted as an action: driving on and staying on the foot, rather than an omission to move off the foot. This allowed for straightforward liability without consideration of duties to act.

White [1910] 2 KB 124

But for test

• D put poison in his mother's (V's) drink intending to kill her. It was unclear on the facts whether V drank any of the poison, but she died shortly afterwards. Regardless of her potential consumption of the poison, however, medical evidence demonstrated that V died due to an unrelated heart condition.

• Crown Court: D was not guilty of murder (result crime requiring causation), but was guilty of attempted murder (conduct crime not requiring causation).

• Court of Criminal Appeal: conviction upheld on appeal

Benge (1865) 4 F & F 504

Causation in fact: there can be more than one cause

• D, a railways foreman, misread a train timetable when taking up sections of track. A train arrived when the track was up and V was killed. D contended that death could have been avoided if his 'flagmen' (stationed along the track to warn unexpected trains) had placed themselves at the proper distance from the worksite, and also if the train driver had kept a proper lookout.

• Court: D was guilty of gross negligence manslaughter.

• It may be that other actors were also 'but for' causes of V's death, and may have been independently liable for it. However, the presence of multiple causes does not undermine the fact that D was a factual cause as well.

Dalloway (1847) 2 Cox CC 273

On causation in law - blameworthiness

• Where (i) blameworthy conduct and (ii) caused the result in fact were satisfied, but (iii) the blameworthiness of D's conduct was central to causation not satisfied

• D was driving a horse and cart on a highway, whilst negligently allowing the reins to lie on the horse's back rather than keeping control of them. A small child (V) ran into the road a few yards ahead of the cart and was killed. Even if D had control of the reins, he could not have stopped in time to save V.

• Court: D was not guilty of gross negligence manslaughter.

• The crime (gross negligence manslaughter) is seeking to criminalise deaths that are brought about because of grossly negligent behaviour

• it is not intended to target deaths (as in Dalloway) where D's negligence has no causal effect

Hughes [2013] UKSC 56

• D (driving without insurance or a full licence) was involved in a fatal collision with V. V was entirely responsible for the accident, having veered onto the wrong side of the road whilst under the influence of drugs. D was charged with causing death when uninsured and without a full driving licence contrary to section 3ZB of the Road Traffic Act 1988.

• Crown Court ruling: D did not cause death.

• Court of Appeal: prosecution appeal allowed, finding liability under section 3ZB. The offence is one of strict liability, requiring no mens rea or blameworthiness for the causing of death.

• Supreme Court: appeal allowed, restoring the Crown Court decision. Offence requires some more than minimal fault/blameworthiness causing the result.

Roberts (1972) 56 Cr App R 95

Chain of causation broken by victim - foreseeability - courts will rarely interpret V's conduct as daft, they apply a broad interpretation to the test of foreseeability

• D, driving V home after a party, began making unwanted sexual advances towards her, threatening her, and touching her coat. V jumped out of the moving car and suffered bodily harm. D was charged with assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861.

• Crown Court: guilty of section 47 offence.

• Court of Appeal: conviction upheld on appeal.

Kennedy (No 2) [2007] UKHL 38

Chain of causation broken by victim - voluntariness - Where V's acts fall between the extremes of free, informed, and voluntary and not free, informed, voluntary

• D's conduct was held not to be the legal cause of death because V's free, voluntary, and informed choice to self-inject the drug broke the chain of causation

• D supplied V with a prepared syringe of heroin. V self-injected the drug and died as a result. D was charged with manslaughter on the basis that his unlawful conduct (drug supply) caused V's death.

• Crown Court: guilty of constructive manslaughter.

• Court of Appeal: conviction upheld on appeal.

• House of Lords: quashing D's conviction on appeal—D was not guilty because he was not the legal cause of V's death.

Field [2021] EWCA Crim 380

Imprecision in applying 'free, voluntary and informed' action of victim in breaking chain of legal causation

• D and V were in a relationship in which D was manipulating V who was much older and had various health conditions. D had been covertly drugging V, 'gaslighting' him, and D had seduced and persuaded V to amend his will in D's favour. D knew that V was taking a prescribed medicine that would react adversely with alcohol and that V had given up drinking alcohol for medical reasons. D left a bottle of strong whisky to tempt V. V drank the alcohol and died from acute alcohol toxicity. D accepted that he had left the alcohol for V, but claimed not to be present when V drank it or when V died.

• Crown Court: guilty of murder. The trial judge directed that V's drinking of the whisky was involuntary even if he agreed to drink it, unless the jury found that V knew that the drink being offered to him was intended to cause his death.

• Court of Appeal: upholding D's conviction—in drinking the alcohol, V was not taking a free, voluntary, and informed decision

• Court’s reasoning: he was being deliberately led into a dangerous situation by someone who pretended to be concerned about his safety. V believed that the whisky was from someone who loved and cared for him, not someone who wished him to die. For the court, D's undisclosed murderous purpose changed the nature of the act.

Rebelo [2021] EWCA Crim 306

Imprecision in applying 'free, voluntary and informed' action of victim in breaking chain of legal causation

• D advertised for sale online a 'food supplement'. It was, in fact, a dangerous chemical (DNP). V was a young woman with psychological vulnerabilities who purchased the supplements online and became addicted to them. She died following an excessive intake of the drugs. D was charged with manslaughter.

• Crown Court: guilty of gross negligence manslaughter. The trial judge made clear that it was for the prosecution to make the jury sure that V 'did not make a fully free, voluntary and informed decision to risk death' by taking the amount of DNP that she did.

• Court of Appeal: upholding D's conviction—the judge had made clear to the jury that if V's decision was fully free, voluntary, and informed, or might have been, then as a matter of law her death was caused by her free choice because, in those circumstances, D had set the scene for V to make that decision but he did not cause her death. The jury had rejected that possibility.

Blaue [1975] 3 All ER 446

Causation in law — operativeness — breaking chain of causation — actions by V — vulnerability of victim (D must ‘take their victim as they find them’ )

• D stabbed V. V required a blood transfusion to save her life, but refused on religious grounds (being a Jehovah's Witness). V died and D was charged with her manslaughter.

• Crown Court: guilty of manslaughter.

• Court of Appeal: conviction upheld on appeal—V's refusal did not break the chain of causation.

• In Blaue, V’s refusal of medical care was interpreted as part of her character rather than a separate, potentially intervening event 

• The court held that D must take V as she is found, which meant her whole person, not just her physical person, and therefore V’s refusal to accept a potentially life-saving blood transfusion could not break the causal chain: D remained the legal operative cause of death 

Wallace [2018] EWCA Crim 690

Causation in law – operativeness – breaking chain of causation – acts of victim — inconsistency between principles and their application (voluntariness, foreseeability); are the courts choosing between principles in order to justify a prior moral decision about D’s culpability 

• D attacked V with a corrosive substance, leaving him with catastrophic injuries and in a state of considerable suffering. V survived the attack, but moved to Belgium and decided to end his life at a euthanasia clinic (euthanasia being legal in Belgium). On a charge of murder, the question was whether D caused V’s death?

• Crown Court: May J made a terminating ruling that causation could not be found on these facts. The prosecution appealed against that ruling.

• Court of Appeal: allowing the appeal, finding that causation was possible. Retrial ordered.

  • CA focused its analysis on foreseeability and voluntariness 

• At the retrial, the question of foreseeability was put to the jury, and the jury found Wallace not guilty of murder, but guilty of a serious non-fatal offence (ie an offence that did not require causation of death) 

However, it is questionable whether foreseeability should have been the main focus of this case. V made what appears to be a free and voluntary decision to die, and the doctors (X) made a free and voluntary decision to act on that decision, both potential breaks in the causal chain as per Kennedy (No 2)

The Court of Appeal, however, held that the circumstances of ongoing suffering from D’s attack made V’s and X’s decision in some sense involuntary, and the issue was not presented to the jury at retrial.

The fine line between this and the apparently voluntary choice of an addicted V to take drugs in Kennedy (No 2) appears vanishingly small. Consider also Rebelo and Field, discussed earlier, and the extent to which V had freely agreed to take the drug in each case.

The scope for voluntary informed and free act of V in Kennedy (No 2) was very broad but Wallace, Field and Rebelo interpreted voluntary informed and free act narrowly 

Michael (1840) 9 C & P 356.

Causation in law – operativeness – breaking chain of causation – acts of third party – voluntariness – informed, free, voluntary act by 3rd party 

• D, the mother of V, sought to kill V by providing X who was V’s nurse with a large dose of poison and telling her that it was medicine for V. The ‘medicine’ was eventually administered to V by Y, a small child living at the house. Despite the acts of X and Y both following from D’s conduct, there was no break in the chain of causation: the third party acts were not free, voluntary, and informed as they did not know the substance was poison

Jordan (1956) 40 Cr App R 152

Causation in law – operativeness – breaking chain of causation – acts of third party – status of X – X is a doctor → treatment must be palpably wrong

• D stabbed V. In hospital, at a stage when V’s wound was largely healed, X (a doctor) administered a large quantity of a drug to which V had shown he was intolerant. The treatment was described as ‘palpably wrong’. D was charged with murder.

• Crown Court: guilty of murder.

• Court of Criminal Appeal: allowing the appeal and quashing D’s conviction—X’s acts broke the chain of causation such that D was not the legal cause of death

Smith [1959] 2 QB 35

Causation in law – operativeness – breaking chain of causation – acts of third party – status of X – X is a doctor → as long as the injury inflicted by D is still ongoing, D will remain a legal cause 

• D stabbed V in a fight between soldiers from different regiments. When carrying V to the medical reception, X dropped him twice. Y (a doctor) failed to note that the wound had pierced a lung and provided treatment later described as ‘thoroughly bad’. D was charged with manslaughter.

• Crown Court: guilty of constructive manslaughter.

• Court of Criminal Appeal: upholding D’s conviction—D remained a legal cause of V’s death.

Despite poor treatment from third parties, D remained a legal cause. The distinction here is that, unlike Jordan, the wounds inflicted by D were not largely healed and remained a significant and operative cause of death. As long as the injury inflicted by D is still ongoing and not ‘merely part of the history’ leading to injurious acts from X or Y, D will remain a legal cause

Cheshire [1991] 3 All ER 670

Causation in law – operativeness – breaking chain of causation – acts of third party – status of X – X is a doctor → whether X’s act was ‘so independent of [D’s] acts, and in itself so potent in causing death, that [the jury] regard the contribution made by [D’s] acts as insignificant’.

• D shot V. In hospital, V was treated and the wounds ceased to be life threatening. However, following a negligently performed tracheotomy by a doctor (X), V’s windpipe narrowed and he died. D was charged with murder.

• Crown Court: guilty of murder.

• Court of Appeal: upholding D’s conviction—D was still a legal cause of V’s death.

• In Cheshire, unlike Smith (but in common with Jordan) V’s wounds had largely healed at the point of X’s negligent intervention. However, despite this, X’s acts did not break the chain of causation.

• The court clarified that the test was not about X’s mens rea, but rather whether X’s act was ‘so independent of [D’s] acts, and in itself so potent in causing death, that [the jury] regard the contribution made by [D’s] acts as insignificant’.

• Exactly how ‘so independent’ and ‘so potent’ should be interpreted is unclear.

Pagett (1983) 76 Cr App R 279

Causation in law – operativeness – breaking chain of causation – acts of third party – status of X may ‘override’ the voluntariness and foreseeability principles on the basis of policy (eg doctors, eg police officers), acts done in line with a duty to prevent crime would never break the chain of causation.

• D, to resist lawful arrest, held V in front of him as a human shield and shot at police (X). X returned fire and killed V. D was charged with the manslaughter of V.

• Crown Court: guilty of constructive manslaughter.

• Court of Appeal: upholding D’s conviction—D was still a legal cause of V’s death.

• we can understand the policy grounds on which the courts would not want X’s act to break the chain of causation, as this would prevent D being liable for a homicide offence. 

• However, in order to achieve this end, the legal principles of causation are compromised. 

The court held that X’s instinctive reaction to return fire was in some sense ‘involuntary’, as well as holding more generally that acts done in line with a duty to prevent crime would never break the chain of causation

Empress Car Co Ltd [1999] 2 AC 22

Causation in law – operativeness – breaking chain of causation – acts of third party – type of offence 

• D, a company, allowed oil to be stored on its site and failed to take precautions to prevent the foreseeable danger that someone would release it into the river. X (an unidentified stranger) released the oil. D was charged with offences related to the pollution of the river.

• Crown Court: guilty of pollution offences.

• Court of Appeal: conviction upheld on appeal.

• House of Lords: upholding conviction—D remained a legal cause.

• In Empress Car, despite the presumably free and voluntary act of a third party, the chain of causation was not broken.

The House of Lords in Kennedy (No 2) has since clarified that the Empress Car precedent is isolated to pollution cases alone