Legal Evaluation of Criminal Liability

Part 1

Introduction

This essay explains and applies the law with reference to criminal liability of Jim, Jeff, and George.

Jim

The issue with respect to Jim is related to his criminal liability with respect to his violent actions against Fred. The question is whether Jim caused grievous bodily injury to Fred and the law is contained in the OAPA 1861, sections 20 and 47. The second issue is related to the robbery of the phone. Section 8 of the Theft Act 1968 is applicable to this issue.

The OAPA 1861 defines grievous bodily injury in sections 18 and 20. Section 20 relates to causing grievous bodily injury, with or without a weapon. Section 20 provides that the unlawful and malicious wounding or inflicting of grievous bodily harm is a misdemeanour. Therefore, under Section 20, the offence is caused when one person inflicts grievous bodily injury unlawfully or maliciously to another person. In R v Wilson and R v Jenkins, causing grievous bodily harm directly or by intentionally doing something that leads to a grievous bodily harm to the victim was held to come within the scope of this provision.

The mens rea requirement in Section 20 is intention or foreseeability of harm to the victim. Foreseeability can also include recklessness so that even if the defendant did not intend harm, his reckless action knowing that such harm may be caused can come within the scope of this provision. Section 18 is the offence with intent where the defendant causes grievous bodily injury with intent to cause such injury. Section 47 provides that a person convicted upon an indictment of any assault occasioning actual bodily harm is liable under the provision. Section 47 applies where there is assault or battery, actual suffering of bodily harm by the victim, and attribution of the harm to the to the assault or battery committed by the defendant.

In this situation, Jim attacked Fred, pushed him to the ground, kicked him in the head and stamped on his phone. By doing so, he caused severe injury to Fred for which he had to be rushed to the hospital and undergo an operation. The injury was severe enough to require an emergency operation, which can be used to infer that this was a grievous bodily harm caused to Fred by Jim and his friend.

With respect to the second issue, which is robbery of the phone, robbery is defined in Section 8 Theft Act 1968, as a theft accompanied by a use of force or threat of use of force as against the victim. Thus, the elements of the crime are taking of a thing of value, by force or threat of force, or by putting the victim in fear. The necessary element is that the defendant must have committed put the victim in fear of use of force at the time of or immediately preceding the theft for the purpose of effecting the theft. This does not seem to have happened in this case as Jeff’s actions were not motivated by an intention to commit robbery, which was an afterthought when Jeff shouted at them to take the phone and run.

1. R v Wilson and R v Jenkin [1984] AC 242.
2. R v Cunningham [1957] 2 QB 396.
3. Jonathan Herring, Criminal Law: Text, Cases, and Materials (Oxford University Press 2014) 338.

Thus, the principal offence for which Jeff’s criminal liability may arise is with respect to grievous bodily injury, which can be taken under Section 18 to show that he had intent to cause such injury or under Section 20 if it is shown that the injury was caused without intent. There are no defences available to Jeff because defences of self-defence, defence of another, defence of property, prevention of crime, and consent are not applicable in this case.

Jeff

The issue with reference to Jeff is whether he has criminal liability for secondary offence of grievous bodily harm. As Jeff did not directly engage in the offences, but was part of the team of three people, the question of secondary offence arises.

Secondary offence occurs when one defendant assists or encourages the other to commit the crime. R v Jogee abolishes the principle of “parasitic accessory liability,” and instead sets the conditional intent principle. R v Jogee explained that if two or more people set out to commit a specific crime, in the course of which, one or more of the defendant commits another crime, the other defendant would also be guilty as an accessory. However, there is a proviso to this in that the other defendant who did not actively commit the offence, should have foreseen the possibility of the second crime committed by the defendant or defendants.

The important point is foresight because this can be treated as evidence that the defendant had the intention of assisting the second crime in the course of committing the first crime. An important principle explained in R v Jogee which is relevant to this case is that of conditional intent, which is applicable be inferred if the defendant not actively involved in the second offence, did conditionally intend to assist the offence if an occasion arose where the other defendant may commit that offence. In this case, the three man were planning to rob a jewellery and had taken sawn-off shotguns in case they came across security officers in the shopping precinct. Therefore, there is evidence that even if Jeff did not participate in causing grievous harm to Fred, he did encourage it and had intended to assist in case a situation like this arose which can be inferred from their taking the weapons with them to commit the robbery.

1. R v Dawson [1976] Crim LR 692.
2. R v Jogee [2016] UKSC 8.

It can be argued that the evidence adds more than just propensity due to association because there is the evidence of common intention to commit robbery as well as the common intention to use the sawed off shotguns in case of intervention by the guards. In this situation, the second crime, which is causing grievous injury to Fred is also in course of the first offence because they are reacting in this way in the fear that Fred is on the phone with police to report them. Jeff’s involvement with the offence can also be seen by the way that he is directing the two to ‘get rid of him, get the phone’, after which they all ran off. The evidential value of association and presence as well as knowledge of weapons will be important factors for associating culpability for Jeff.

George

The issue with respect to George is whether he is liable for gross negligence manslaughter. The law contained in R V Adomako is relevant to this because in this judgment, the court has explained the circumstances in which a doctor may be held criminal liable for gross negligence manslaughter.

In Adomako, a patient died after his anaesthetist failed to check if the oxygen supply remained connected to his endotracheal tube. The court provided the elements that have to be established before the doctor can be convicted in the case. The first element is the duty of care element where the defendant should be shown to have breached their duty of care by virtue of their negligence. The second element is that this negligence must have caused death of the patient. The third element is that the negligence must amount to ‘gross negligence’. The last point involves the jury answering the question that considering the risk of death involved, was the conduct of the defendant so bad so as to amount to a criminal act or omission. This is a question for the jury. Duty of care on the other hand is for the court to decide. This is based on the negligence principles laid down in civil law as noted by the court in Adomako.

1. Myers v R [2016] AC 314.
2. Nicola Monaghan, Criminal Law Directions (Oxford University Press 2020).
3. R V Adomako [1995] 1 AC 171
4. Ibid.
5. Ibid
6. Ewans (2009) EWCA Crim 650.
7. R V Adomako [1995] 1 AC 171

With regard to duty of care, a sufficiently close relationship between the doctor and the patient can establish this duty. This duty of care can be established and consequently its breach can be established by virtue of George being Fred’s anaesthetist for the operation. The second element however is more difficult to establish because Fred and Frieda were told prior to the operation that there was only a small chance of his surviving the operation but that without it he would die. Therefore, there is already a chance that Fred is not going to survive the operation. Then the question arises whether it is George’s negligence alone that caused death of the patient. Furthermore, there is also the requirement to consider the state of the defendant’s mind before a finding of gross negligence can be made out: the state of mind consideration would include indifference to an obvious risk of injury, actual foresight of risk coupled with determination to run the risk, and appreciation of the risk and a high degree of negligence in attempted avoidance. The question is whether this applies to George.

The facts of the case show that George first administered a full anaesthetic, but lost his attention for a moment and failed to notice that the anaesthetic was running low which resulted in Fred going into a shock and dying when he woke during the operation. These facts do not indicate that George was indifferent to risk, or was determined to run the risk, or was highly negligent in avoiding it. What it shows is that he lost his concentration for a moment owing to stress and a 20 hour shift with Covid patients. In any case this would be a consideration for the jury. In R v Misra & Srivastava, the court held that the determination of whether the defendants’ negligence amounts to ‘gross negligence’ is a question of fact to be determined by the jury. With regard to reasonably foreseeable risk, the risk should be serious and should be an obvious risk of death. Applying the law to the case, George’s criminal liability may not be made out.

Conclusion

Jim may have criminal liability for grievous bodily injury. Jeff may have criminal liability for secondary offence. George’s criminal liability for gross negligence manslaughter is not be made out.

1. Caparo plc v Dickman [1990] AC 605.
2. R v Holloway and Others (CA (Cr Div)) [1993] 4 Med LR 304.
3. R v Misra & Srivastava [2004] EWCA 2375.
4. R v Rose (2017) EWCA Crim 1168.

Part 2

For TMA03, one of the feedback given by the tutor was related to giving more evaluation by putting together number of sides to the paragraph. In this essay, I have tried to address this feedback by incorporating more evaluation in the essay with respect to each party considered for assessing criminal liability. Thus, for evaluating the criminal liability of the three parties, I have tried to include more evaluation for the points that are taken to assess the liability. This is done by applying the law in the authorities or the legislation to the three parties by evaluating the important elements of the liability with reference to the three parties. I have also tried to break down the paragraphs into smaller paragraphs to emphasise on fewer points per paragraph and evaluate the law with reference to the point made in the paragraph.

Continue your exploration of Legal Analysis of Criminal Liability in the Case of Joseline and Max in the United Kingdom with our related content.

Table of cases

Caparo plc v Dickman [1990] AC 605.

Ewans (2009) EWCA Crim 650.

Myers v R [2016] AC 314.

R V Adomako [1995] 1 AC 171

R v Cunningham [1957] 2 QB 396.

R v Dawson [1976] Crim LR 692.

R v Holloway and Others (CA (Cr Div)) [1993] 4 Med LR 304.

R v Jogee [2016] UKSC 8.

R v Misra & Srivastava [2004] EWCA 2375.

R v Rose (2017) EWCA Crim 1168.

R v Wilson and R v Jenkin [1984] AC 242.

Books

Herring J, Criminal Law: Text, Cases, and Materials (Oxford University Press 2014).

Monaghan N, Criminal Law Directions (Oxford University Press 2020).