2017 ZONE B QUESTION 2

MANSLAUGHTER
Question 2

a) John went to stay with his friend Luke. One evening Luke cooked a
special dish of mussels and prawns for John. Later that evening
John began to vomit due to an allergic reaction to the mussels.
Luke put John to bed hoping that a good sleep would aid his recovery.
When Luke tried to wake John the next morning John was in a coma. Luke
did not realise this and so did not call the ambulance. When, a few hours
later, Luke finally realised that something was seriously wrong with John
he called for an ambulance. John died on the way to hospital.

Consider Luke’s possible criminal liability for gross negligence

manslaughter.

b) Imran and Ed, who were both in love with the same woman, had an
argument. In the course of the argument Ed pushed Imran hard.
Imran responded by pushing Ed equally hard. Ed fell over, cutting his arm
badly. Imran tried to stop the bleeding with a handkerchief but was unable
to do so because Ed was a haemophiliac which meant that his blood would
not clot. Imran took Ed to the hospital but got stuck in traffic. By the time
he had arrived at hospital Ed had died of blood loss.

Consider Imran’s possible liability for constructive manslaughter.

Sample Approach
Luke
As mentioned above, Luke will be charged with Gross Negligence Manslaughter of
John. Lord Mackay in Adomako sets out 4 elements that need to be established for a
successful conviction on gross negligence manslaughter. First, the defendant must have owed
a duty of care to the victim. Second, the defendant has breached this duty of care towards the
victim. Third, the breach of duty caused the death of the victim and finally, the breach was so
gross that it attracted criminal liability.

In Adomako, Lord Mackay stated that the ordinary principles of negligence apply to
determine whether a duty of care exists. This renders the existence of a duty of care a matter
for the judge taking into account the degree of foreseeability of injury, the relationship of the
parties the justice of the case (Wacker [2003]). Luke will argue that he lacks the requisite
actus reus for the offence as he has not done anything other than cooking a meal for John.
Prosecution would then try to establish the duty of care through omission. The general rule is
that, there is no liability for failing to act. However, in the common law, judges have
recognized few situations where failing to act could attract criminal liability.

It can be argued that there was a creation of dangerous situation by Luke when he
cooked a meal for John that consisting mussels which John was allergic to (Miller). This
argument is rather weak as Lord Judge CJ in Evans in trying to expand the principle in
Miller stated that “when a person has created or contributed to the creation of a state of
affairs which he knows, or ought reasonably to know, has become life threatening, a
consequent duty on him to act by taking reasonable steps to save the other’s life will normally
arise”. Lord Judge CJ’s judgement requires knowledge or at the very least foresight from
the defendant that the situation is life threatening. From the perspective of Luke, inferring
from the facts, Luke has no knowledge that John has an allergy towards Mussels as so it
could be difficult to argue that he should have foreseen this could threatened John’s life.

Another possible argument that could be raised, Luke voluntarily assumed

responsibility for John when he put John to bed hoping that it will aid his recovery (Instan).
Here, the courts may find a duty of care if the defendant has acted in such a way that he
assumed responsibility for the defendant. The logic behind this is that if the defendant
attempts in helping the victim, he should at least see through that the victim is out of danger
or safe, abandoning the victim halfway justifies criminal liability. Luke may have assumed
responsibility for John when he helped John to bed. In Ruffell (2003), liability was found for
the defendant as he tried to revive his friend who was unconscious. The act of attempting to
revive was held to have caused the defendant to voluntary assume responsibility for his
friend. Following that logic, it can be argued that here, upon trying to aid in John’s recovery
Luke would have assumed responsibility for his condition.
 Upon establishing the duty of care, the next step will be to enquire whether Luke has
breached the said duty of care. The question of breach will arise when Luke attempted to
wake John and since he was already in a coma, John failed to summon any medical
assistance. Breach of duty is assessed objectively which means that there will be a breach of
the duty if Luke’s actions fell below the standard expected of a reasonable person. This
provides a benefit for the jury as they could acquit the defendant if the defendant is found to
have acted under stress, mistake or confusion (Prentice). I would argue that Luke did not fall
below the standard expected of him as he did try to wake John up but not being someone
medically trained, Luke could not have possibly known that John has gone into a coma.
Although he did not summon medical help immediately, he did anyways when he realized
something was wrong.

Lord Mackay in Adomako stated clearly that having regard of the risk of death
involve, the act or omission of the defendant must be so bad in all circumstances that it
justifies criminal punishment. By looking all the circumstances, not summoning medical help
when John started vomiting is not conduct bad enough to attract criminal liability as vomiting
could not justify the allergic reaction as one could also vomit if the food tasted bad. As
mentioned above, Luke could have also not possibly known that John was in a coma but
nevertheless, he in fact summoned medical help when he realized something was seriously
wrong. It is also unlikely to expect Luke to know the risk of death involve upon eating
mussels that John had an allergic reaction to (Singh [1999]). Therefore, I would argue there
is no liability for gross negligence manslaughter for Luke

Imran.
Imran will be charged as mentioned above for constructive manslaughter of Ed. For
constructive manslaughter to be successfully proven, there are 3 elements that the prosecution
will need to prove. First there was an unlawful act. Second, the unlawful act was dangerous
and finally, the dangerous act caused the death of the victim. For the first element, is the act
of pushing an unlawful act? The unlawful act must be a criminal act not a civil act
(Franklin). Indeed, the pushing amounted to battery. Battery is defined under S.39 CJA
1988 as unlawful application of violence on another person. Following Cole v Turner,
liability for battery can be establish, it requires physical contact where the merest touching
without consent can be sufficient. It is clear from the facts that Ed and Imran had a
confrontation and that the pushing from Imran to Ed was without consent. Thus, it will
amount to an unlawful act.
 The unlawful act must also be dangerous for the second requirement. The idea for this
requirement is that liability should not be too far removed from finding that the accused bear
personal moral responsibility for the death. The word “dangerous” after Church was to be
defined objectively. Therefore, it is enough that the accused’s act was dangerous to any
reasonable and sober person. It is not necessary that the crime involve an element of danger.
Following DPP v Newbury, it will be sufficient as long as the crime provoked the risk of
physical injury. From the facts, after Ed pushed Imran, Imran pushed Ed equally hard. From
this it could be inferred that the push had some risk associated which could cause physical
injuries and in fact it did. I would argue the act of pushing indeed was dangerous as a hard
push could disrupt one’s balance and cause them to fall down which certainly will bring some
physical injury.

The final element requires proving that the push by Imran caused the death of Ed.
Imran would argue that Ed’s condition of being haemophiliac caused his death and the chain
of causation should be broken. However, this argument will most likely be rejected as the
case of Blaue clearly state that the defendant must take its victim as he finds them. Which
means, Ed’s condition should not absolve Imran of any criminal liability or blameworthiness.
Imran’s push on Ed is nevertheless the factual and legal cause of Ed’s death. Thus, Imran
would be guilty of constructive manslaughter.