Articles - Key Stuff

Question 1

Gross Negligence Manslaughter - Mary-Elizabeth Tumelty

Answer 1

• McCall Smith = Even the most skillful and careful doctor makes mistakes (errors/omissions) - Negligence but not careless or cavilier attitude
• Brazier and Allen – “A surgeon cannot usually refuse to operate; risk (even risk of death) is an inherent part of medicine. Judgements have to be made instantly. The risk adverse doctor may do more harm than good.”
• Unfair – Inevitable and reasonable doctor absence of context e.g. not overworked
• R v Misra – “An obvious and serious risk of death”
• Quick & Brazier and Allen – Only where conscious and deliberate taking of an unjustifiable risk
• Systemic failures – Corporate Manslaughter Bill

Question 2

Recklessness, subjectivity and the Criminal Law by Ray Ryan and Des Ryan

Answer 2

• No regard of defendant’s personal circumstances – Unfair and unrepresentative to the accused and in no way accords with the interests of justice
• McAleese = Subjectivity “establishes the highest degree of clarity and certainty; it simply makes profound legal and common sense; and it contains the ambit of criminal liability within justifiable limits”.

Question 3

Mark Coen Strict Liability Article

Answer 3

• Fennelly J in CC – Expressio unius exclusio alterius – He says MR presumption pre-eminent
• Penalties beyond fines or enforcement proceedings and should be “truly regulatory offences”
• Stigma of imprisonment by ordinary citizen’s viewpoint – Remember went to jail rather than offence
• Replace by negligence standard

Question 4

Thomas Weigend – Subjective Elements of Criminal Liability

Answer 4

• Blame – Makes no sense to blame and punish a person for a harmful event that the person could not possibly prevent or foresee; personal autonomy/personal responsibility
• US Modern Penal Code – Violations with no custodial sentences
• Unfairness and blurring the lines between criminal law and tort law
• More severe penalties for intentional offences – Conscious decision/Attitude that ignores the law; knowledge easier to avoid criminal conduct, public feeling of security; more need for reform
• Should be obvious argument flaws - Increased prohibited conduct; AMPC defence – Enactment not reasonably made available before defendant acted or relied on an interpretation of the law later found to be erroneous
• Negligence = Results orientated – Hold someone responsible when disaster strikes

Question 5

Adrian Hardiman - Language of Law “Reform”

Answer 5

• Accused persons being branded criminals
• Abrogation of rights of accused persons – Rebalancing argument without evidence
• All entitled to just process – Constitutional guarantee
• Criminal law as gold standard for fair procedures

Question 6

LRC 2008 Report – Abolish Mandatory Life Sentence for Murder

Answer 6

• Custodial sentences should reflect what the sentencing judge regards as appropriate with the seriousness of the offence, save in special circumstances – Justice and morality
  1. Not all murders are equally heinous
  2. Life sentences usually do not last for the convicted person’s life
• Degrees of heinousness and all murderers in practice do not receive same punishment
  3. Actual decision of term made by Minister for Justice on (ns)PB advice –
  4. Murder/Manslaughter distinction eroded argument unconvincing
  5. Mandatory life sentence not only method of protecting the public from killers who are likely to kill again
  6. Problems with public confidence in the criminal justice system as the law stands
  7. Judges already used to discretionary life sentences
  8. Deterrence effect argument questionable as majority murders not the result of careful, premeditated planning

Question 7

2008 LRC Report - UDA Manslaughter Reform options

Answer 7

• Recommendation – General parameters retain but minor assaults unforeseeably causing death removed – Less culpable and prosecution hinges on an accident/small chance outcome - Germany and India

Question 8

2008 LRC Report - Gross Negligence Manslaughter Reform options

Answer 8

• Amend Dunleavy test to take account of accused’s capacity to advert to risk or attain the expected standard as relevant to liability
• Risk of death
• Fifth limb to Dunleavy test – Mentally and physically capable of averting to, and avoiding the risk of substantial personal injury at the time of the fatality (not inexperience)

Question 9

Ivana Bacik

Answer 9

• No MLS would allow for fair and proportionate sentencing principles

Question 10

McCutcheon on Omissions Liability

Answer 10

• General function of criminal law – “Prevention of harm and the encouragement of socially beneficial conduct”;
• Relationship – Parent/dependent child, loco parentis e.g. food or partner’s violence; adult child/dependant parent/ spouse yes but cohabiting couple question; sibling no
• Assumption of responsibility – Niece caring for aunt – R v Ibstan [1893] 1 QB 450; Adult caring for senile parent – Davis v Commonwealth 230 Va 201 (1985); R v Nicholls general principle; R v Stone and Dobinson problems – How could have cared for the sister; judicial lawmaking; “undertaking” vague, risk of criminalising kind acts; household duty question – “Reasonable and just”, joint enterprise suggestion with mountain climbing example
• Not required to place oneself in danger – Supreme Court of North Carolina in State v. Walden
• How easy, onerous or impossible is the required action –Awareness of the incident – Harding v. Price
• Should adopt the continental codes approach – Statutory duty e.g. Articles 62, 63(1) and 63(2) of the French Penal Code – Conduct crimes so no causation issue – respectively penalise failure to report a serious crime, failure to take steps to prevent a crime from occurring and failure render assistance to someone in peril.
• Rescue duty – Punishable by default not consequences

Question 11

Ashworth - Omissions liability

Answer 11

• • Rationale:
    1. Individual autonomy and liberty – Constraints of prohibition, chance/unpredictability of requiring positive action e.g. concert analogy
    2. Idea of individual autonomy = negative liberty; Individual’s right to self-determination ; Objectivity of peril – Motorcycle accident vs suicide attempt jumping off a bridge
    3. Consequences of the opposite, “social responsibility” view – Interfere with autonomy and enjoyment, busybody/intrusive
    4. Impractical – Large numbers of situations which we know nothing about e.g. starving children in Africa and large crowd witnesses someone being beaten up analogies
    5. Used to prohibitions rather than legal duties – Ignorance of the law
    Individual freedom and autonomy – Concert analogy; Not a supreme value in the legal system e.g. seatbelt rule
• Other issues such as
  (i) whether the duty can be made compatible with the principle of legality, which requires fair and specific warning citizens of their duties,
  (ii) the possible impact of wider omissions liability on the quality of social life, in so far as it might be as unsettling for community life as the new duties would be supportive of it,
  (iii) the possible impact of the prevailing conditions of social life upon the imposition of new duties, in so far as the dangers of attack in certain localities may invariably make it hazardous to go to the rescue of another.
• Failure to report to law enforcement – Consider both what could be reasonably expected of the person in the circumstances and the seriousness of the offence witnessed.
• Reasonableness issue – “restrict the scope of the offences to those who fail to take steps towards rescue or law enforcement where there is no unreasonable risk, cost or inconvenience”.