1 Law: Text, Cases, and Materials (5th

1 Oxford Law Dictionary (8th edn, OUP 2015) 514

2 Janet Loveless, Criminal Law: Texts, Cases, and Materials (5th edn, OUP 2016) 115

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3 Janet Loveless, Criminal Law: Texts, Cases, and Materials (5th edn, OUP 2016) 117

4 R v Cunningham 1957 2 QB 396

5 R v Stephenson 1979 1 QB 695

6 R v Parker (Daryl) 1977 1 WLR 600

7 Janet Loveless, Criminal Law: Text, Cases, and Materials (5th edn, OUP 2016) 118

8 Janet Loveless, Criminal Law: Text, Cases, and Materials (5th edn, OUP 2016) 120

9 Janet Loveless, Criminal Law: Text, Cases, and Materials (5th edn, OUP 2016) 116

10 R v Caldwell 1982 AC 341

11 R v Seymour 1983 2 AC 493

12 R v Lawrence 1982 AC 510

13 Janet Loveless, Criminal Law: Text, Cases, and Materials (5th edn, OUP 2016) 122

14 R v Adomako 1995 1 AC 171

15 Oxford Law Dictionary (8th edn, OUP 2015) 386

16 Janet Loveless, Criminal Law: Text, Cases, and Materials (5th edn, OUP 2016) 297

17 Janet Loveless, Criminal Law: Text, Cases, and Materials (5th edn, OUP 2016) 309

18 Janet Loveless, Criminal Law: Text, Cases, and Materials (5th edn, OUP 2016) 298

19 Janet Loveless, Criminal Law: Text, Cases, and Materials (5th edn, OUP 2016) 310

20 Janet Loveless, Criminal Law: Text, Cases, and Materials (5th edn, OUP 2016) 122

21 Janet Loveless, Criminal Law: Text, Cases, and Materials (5th edn, OUP 2016) 123

22 Janet Loveless, Criminal Law: Text, Cases, and Materials (5th edn, OUP 2016) 124

23 Janet Loveless, Criminal Law: Text, Cases, and Materials (5th edn, OUP 2016) 127

24 Professor Glanville Williams ”Recklessness Redefined” 1981 40 CLJ 252, 270-271

25 Elliot v C 1983 1 WLR 939

26 Janet Loveless, Criminal Law: Text, Cases, and Materials (5th edn, OUP 2016) 126

27 R v Adomako 1995 1 AC 171

28 R v Adomako 1995 1 AC 171

 

Williams G, ‘Recklessness Redefined’ 1981 40 CLJ 252

Oxford Dictionary of Law (8th edn, OUP 2015)

Loveless J, Criminal Law: Text, Cases, and Materials (5th edn, OUP 2016)

Secondary Sources

R v Stephenson 1979 1 QB 695

R v Seymour 1983 2 AC 493

R v Parker (Daryl) 1977 1 WLR 600

R v Lawrence 1982 AC 510

R v Cunningham 1957 2 QB 396

R v Caldwell 1982 AC 341

R v Adomako 1995 1 AC 171

Elliot v C 1983 1 WLR 939

UK Cases

Table of cases

Primary Sources

Bibliography

From the points given, I do not fully agree that the abolition of objective recklessness in R v Adomako 1995 has not clarified the problematic areas on involuntary manslaughter as it is limited to only certain people and offences.

Conclusion

In R v Adomako 1995, the aspect of whether the doctor intended to kill the patient was not proven which shows unfairness on the side of the appellant. Looking at the facts of the case, it can be agreed that he breached his duty on taking care of his patient but it doesn’t show that he intentionally did it as he was unaware that the tube had been disconnected from the ventilator.28

4.       Persistent problems in Adomako

In R v Adomako 1995, the appellant was the anaesthetist during an eye operation on a patient. In the course of the operation, the tube from the ventilator supplying oxygen to the patient became disconnected. The appellant failed to notice the disconnection for six minutes before the patient suffered a cardiac arrest, from which he subsequently died. It was upheld on the issues of whether the appellant had been in breach of duty of care towards the victim, whether the breach of duty caused the death of the victim, and if so, whether it should be categorised as gross negligence and therefore a crime and a jury question to decide whether, having regard to the risk of death involved, the defendant’s conduct was so bad in all circumstances as to amount to a criminal act or omission.27

3.       Facts and Overview of R v Adomako

A further refinement, advanced by Professor Glanville Williams in his article ”Recklessness Redefined”24 adopted by the justices in Elliot v C 198325 and commented upon by Robert Goff LJ in that case is that a defendant should only be regarded as having acted recklessly by virtue of his failure to give any thought to an obvious risk that property would be destroyed or damaged, where such risk would have been obvious to him if he had given any thought to the matter. It is one thing to decide whether a defendant can be believed when he says that the thought of a given risk never crossed his mind. It is another and much more speculative, task to decide whether the risk would have been obvious to him if the thought had crossed his mind.26

·         The majority’s interpretation of recklessly in s1 of the 1979 Act was a misrepresentation causing offence to principle and justice. The Law Commission clearly meant recklessness to mean the same as maliciousness.  In treating Cunningham as irrelevant, the majority in Caldwell fell into understandable but demonstrative error.23

·         The model direction in Caldwell leads to unfairness. The context of Caldwell did not require consideration of the young or medically handicapped. Caldwell had swallowed up large parts of what we would normally call negligence. A lapse of care due to incapacity, absent-mindedness or foolishness would be negligent whereas if it was due to excitability or rage might be reckless.

·         In serious crimes, D’s state of mind should be culpable. No one should be convicted of a serious crime without culpability. Not only intention but knowing disregard of a known and unacceptable risk or a deliberate closing of the mind to such risk is culpable.

Lord Bingham found problems with Caldwell recklessness and these are the reasons why:

The test of objective recklessness gave rise to a theoretical argument called the Caldwell loophole. Caldwell recklessness applied to a defendant who had failed to give though to a serious and obvious risk of harm in certain offences but if D had thought about the risk and had wrongly concluded there was none, he would not be reckless in the Caldwell sense. Neither would subjective recklessness apply for D. D would fall between the two tests and would be negligent on the basis of a mistake about a serious and obvious risk. The Caldwell loophole argument never succeeded. In Chief Constable of Avon and Somerset v Shimmen 1987, a martial art Tae Kwon Do expert kicked and smashed a shop window. The appellant successfully argued that he had eliminated as much as risk as possible from his demonstration by aiming to stop two inches short of the glass. The Divisional Court remitted the case back to the magistrates to convict. D had still foreseen some risk and was therefore reckless.22

It created an escape route for persons who considered there was a risk and minimised the impact of it. A person can be aware of the risk and believed that it won’t bring about any serious problems. This kind of people can be found to be liable for the crime committed as they saw the risk and knew about the danger that is bound to happen but didn’t see it as something that would affect the lives of people even they are aware of how serious the harm might be.

A rigid objective test could lead to injustice so that if a person was sick or incapacitated, that would be irrelevant on the objective test all would be judged according to the standard of the reasonable adult whether they were normal or not. Young mentally disabled people or those who are too ill or exhausted to think carefully would be judged by reasonable standards. Objective liability makes no concessions to disability, age or health. What if D is not ordinary because of an incapacitating condition which might interfere with the ability to perceive the risk?21

·         The Problematic Areas in Objective Recklessness

The subjective test excludes persons who are mentally preoccupied and who should in the circumstances be thinking of public consequence. This is a point which should be highly considered but remains unnoticed. People who are under mental preoccupation have no control over their actions and being aware of this should not be found to be in the public as there is a high probability of them harming the people they come in contact with.

The Cunningham test excludes the impulsive risk taker who acts without thinking in the heat of the moment. This issue explains that this type of recklessness does not look at persons who are driven by their emotion which in this case is anger and commits the act without thinking if it would cause harm to the other person. The Subjective test excludes inconsiderate and careless individuals. People who are self-centred and don’t think about how other people will feel or how much the risk will affect them are not considered under this test.

·         The Problematic Areas in Subjective Recklessness

The two types of recklessness have two different tests that applied to different offences which were even more confusing. Wherever a statute used the word ‘reckless’ the new objective test applied. Therefore it was not the case that subjective Cunningham recklessness was completely replaced. It continued to apply to older statutory offences defined by ‘maliciously’, principally offences against the person. Objective recklessness was extended to the offences of causing death by reckless driving. The courts decided that Caldwell did not apply to common law assault.20

2.       The Problematic Areas

Unlawful and Dangerous act (constructive manslaughter) can only be committed in the course of a crime. It imposes liability for death despite the fact that D is engaged in criminal activity that carries no intrinsic risk of injury to the person. There are five components of this offence and there are D’s unlawful act must be a crime which must be identified and proved, the unlawful act must be dangerous, the test of danger is objective, the unlawful act must be a crime by virtue of a positive act as opposed to an omission and the unlawful act need not be directed at V but must be the cause of death.19

Reckless manslaughter consists of causing death by a lawful and unlawful act and with foresight of a high degree of risk of serious injury.17 The concept of gross negligence applies only to manslaughter and no other offence. It means extreme carelessness or incompetence and arises where a very serious mistake causes death. The conduct may take the form of a serious negligent act or omission.18

Involuntary manslaughter consists of unlawful killing of another person with a mens rea not amounting to intention.15 It consists of three categories of unintentional killing, by recklessness, gross negligence and unlawful and dangerous act. The offence applies to a wide range of conduct leading to death, from intentional unlawful activity, such as a robbery or arson, to lawful activity carried out with a high degree of incompetence.16

·         Involuntary Manslaughter

In R v Adomako 1995, the appellant was an anaesthetist during the later stages of an eye operation on a patient. During the operation, the tube from the ventilator supplying the patient with oxygen became disconnected. The appellant failed to notice the disconnection and the patient suffered a cardiac arrest and died. At his trial, negligence had been admitted but the issue was whether he had been criminally negligent.14

·         R v Adomako

The problematic areas means where the law has only been limited to a certain group of people and does not look at other cases which might be important in considering if a person is liable or not for the crime.

·         Problematic Areas

Another case that focused on reckless driving is R v Lawrence 1982. The House of Lords has held that mens rea is involved in the offence of driving recklessly contrary to the Road Traffic Act 1972 s 1, as amended. The mental element required is that, before adopting a manner of driving that creates an obvious and serious risk of causing physical injury to some other person who might happen to be using the road, or of doing substantial damage to property, the driver has failed to give any thought to the possibility of there being such risk, or, having recognised that there was some risk involved, has nonetheless gone on to risk it. In order to decide whether the risk was obvious and serious, the jury may apply the standard of the ordinary prudent motorist. When satisfied that there was such a risk a jury entitled to infer that the driver was in one of the other states of mind required to constitute the offence.12 The test for objective recklessness is if D does an act which in facts creates an obvious risk that property will be destroyed or damaged and when he does that act he either has not given any thought to the possibility of any such risk or has recognised that there was some risk involved and has nonetheless gone on to do it.13

Objective recklessness was extended to the offences of causing death by reckless driving. One of the cases that reckless driving was found in is R v Seymour 1983. This case was on reckless driving. The appellant while driving an 11 ton lorry on the highway attempted to push a stationary motor car out of his way and in so doing crushed the woman who he recently quarrelled with. She got out of the car severely injured and died six days later. The appellant was indicted and convicted of manslaughter and was sentenced, inter alia, to five years imprisonment. He was prepared to plead guilty to the offence of causing death by reckless driving contrary to section 1 of the Act of 1972 but the prosecution declined to accept the plea they preferring to receive a jury’s verdict upon the only count charged in the indictment, that of manslaughter.11

This type of recklessness no longer exists and was overruled in 2003 by the House of Lords in R v G.8 It is sometimes referred to as the Caldwell Recklessness. It applied to some important offences between 1982 and 2003. It was concerned with the unconscious and inadvertent creation of a serious and obvious risk of harm.9 In R v Caldwell 1982, the appellant had done work in a hotel as a result of which he had quarrelled with the owner, got drunk and set fire to the building. The fire was extinguished before serious damage occurred and anyone was injured. The appellant was charged with two counts of arson. The first and more serious count was under s1 (2) (b) of the 1971 Act (endangerment of life), the second count under s (1). He pleaded guilty to the second of count but defended the first on the ground of self-induced intoxication. The House of Lords confirmed that drunkenness was no defence to a crime of basic intent and upheld the conviction as intoxication is never a defence under criminal law. Lord Diplock stated that it was no less blameworthy for a man whose mind was affected by a rage, excitement or drink to fail to give thought to the risk of damaging property and a man whose mind was similarly affected but who has appreciated the risk.10

·         Objective Recklessness

Another case where subjective recklessness was applied to is in R v Parker 1977. In this case, the appellant in a fit of temper broke a telephone by smashing the handset violently down on to a telephone unit. He was convicted under s1 (1) Criminal Damage Act 1971. The rationale was to draw a distinction between culpable inadvertence and mere negligence of oversight. Reasons for culpable inadvertence would be intoxication, anger, impulsiveness and an attitude of indifference. Provided the appellant was otherwise capable of appreciating the risk of his actions, there would be no reason for excusing him from the consequences.6 The test for subjective recklessness was did D foresees the possibility of the harmful consequence?7

 A case which subjective recklessness was applied to is R v Stephenson 1979 where the appellant who was schizophrenic and homeless found refuge in a haystack and made a hollow. He lit a fire in the hollow which in turn set the whole haystack on fire. The courts decided that the test should be subjective if the defendant did not foresee the risk of damage and should not be liable.5

In subjective recklessness, foresight is an essential element. The risk of the harm may be high or low but provided D perceives or foresees some degree of risk then he will be reckless.3 This definition was developed from the case of R v Cunningham 1957. In this case, the intent of maliciously was looked at. The appellant went to the cellar of the unoccupied house, tore the gas meter from the wall and from its pipes and stole money from it. He did not turn off the gas at a stop tap nearby and gas escaped, seeped through the dividing wall of the cellar and killed his mother in law who was asleep in her bedroom. The appellant was charged under offences against the Person Act 1861 s23, with having unlawfully and maliciously caused W to take a certain noxious thing, coal gas, thereby endangering her life. On appeal against the conviction, it was held that the conviction should be quashed, because it was incorrect to say that the word in malicious in a statutory offence meant wicked and it should have been left to the jury to decide whether, even if appellant did not intend the injury to W, he foresaw that the removal of the gas meter might cause injury to someone but nevertheless removed it.4

·         Subjective Recklessness

Recklessness has normally been held to be a subjective meaning of being aware of the risk of a particular consequence arising from one’s actions but deciding nonetheless to continue with one’s actions and take the risk where it was unreasonable to do so.1 In the hierarchy of Mens Rea, recklessness is second to only intention, but is not as culpable. It appears in offences ranging in gravity from manslaughter at the top end of the scale to criminal damage and a range of statutory offences at the bottom. Offences involving recklessness are called offences of basic intent.2

·         Recklessness

1.       Core Concepts

This argument will be articulated into four sections. Firstly, I will be discussing the core concepts which are recklessness, objective recklessness, subjective recklessness, problematic areas, R v Adomako 1995 and involuntary manslaughter. Secondly, I will be looking at the problematic areas of subjective and objective recklessness. Thirdly, I will state the facts and give an overview of R v Adomako 1995. Fourthly, I will be dealing with the persistent problems found in Adomako.

I agree to a low extent that the abolition of objective recklessness manslaughter in R v Adomako 1995 has clarified the problematic areas of the law on involuntary manslaughter as certain areas have not been fully addressed or attended to.

Introduction