Fichas
PACE, Disclosure and Code of Practice.
Fichas del conjunto (56)
- 1Topics overviewA review of:
• (1) PACE & NPCC.
• (2) The ACPO guidelines.
A brief cover of the law
regarding :
• (3) Murder,
• (4) Manslaughter,
• (5) Sexual Offences,
• and (6) Theft.
These topics will be linked
to case examples which we
will discuss.
Additionally we will cover
the codes of practice as
sent out by the Forensic
Regulator. - 2PACEPACE stands for the Police and Criminal Evidence act of1984.
(Be aware that legislation
updates regularly via “white
papers” – you need to keep
abreast of changes in the
codes of practice.)
PACE codes of practice provide the core framework of police powers and safeguards around stop and search,
arrest, detention, investigation, identification and interviewing detainees. (Remember the difference between
interrogation and interview – This links back to your lecture on cognitive interviewing.)
• In April 2003, PACE codes A-E which had previously been revised came into force.
• In November 2011 a consultation was published which resulted in further revisions to codes
C and H.
• The revision of code G comes into effect in November 2012.
• It is the investigation, identification and interviewing regulations that are of primary concern to the forensic scientist. - 3PACE – Part I, subsection 3 – duty to make record concerning searches.• Whilst this subsection particularly comments of a police constables duty, I have chosen to highlight this
particular subsection as it is one of the codes that forms the basis of the Forensic regulators codes of
practice. (I shall highlight several others throughout).
• This Particular subsection takes about the requirement for contemporaneous notes. - 4PACE – Part I, subsection 3 – duty to make record concerning searches. 3 Duty to make records concerning searches.(1)Where a constable has carried out a search in the exercise of any such power as is mentioned
in section 2(1) above, other than a search—
(a)under section 6 below; or
(b)under section 27(2) of the M1Aviation Security Act 1982, [F1a record of the search shall be
made] in writing unless it is not practicable to do so.
[F2(2)If a record of a search is required to be made by subsection (1) above—
(a)in a case where the search results in a person being arrested and taken to a police station, the
constable shall secure that the record is made as part of the person's custody record;
(b)in any other case, the constable shall make the record on the spot, or, if that is not practicable,
as soon as practicable after the completion of the search.] - 5PACE – Part II, subsection 19 – General power of seizure etc. This subsection relates to the authorisation of seizure of materials.19 General power of seizure etc.
(1)The powers conferred by subsections (2), (3) and (4) below are exercisable by a constable
who is lawfully on any premises.
(2)The constable may seize anything which is on the premises if he has reasonable grounds
for believing— (As you can see this one goes
on a bit. But it generally
states that a constable can
seize an item and submit that
item into evidence providing
there is reasonable grounds
to believe that the item
needs to be taken as either
evidence, in the prevention
of another offence, or to
prevent destruction of the
item.
However they can not take
items as “legal privilege,”
which basically means that
they cannot profiteer from
the proceeds of crime.)
(a)that it has been obtained in consequence of the commission of an offence; and
(b)that it is necessary to seize it in order to prevent it being concealed, lost, damaged, altered
or destroyed. - 6PACE – Part II, subsection 19 – General power of seizure etc. This subsection relates to the authorisation of seizure of materials. continued(3)The constable may seize anything which is on the premises if he has reasonable grounds
for believing—
(a)that it is evidence in relation to an offence which he is investigating or any other offence;
and
(b)that it is necessary to seize it in order to prevent the evidence being concealed, lost,
altered or destroyed. - 7PACE – Part II, subsection 19 – General power of seizure etc. This subsection relates to the authorisation of seizure of materials. continued(4)The constable may require any information which is [F1stored in any electronic form] and
is accessible from the premises to be produced in a form in which it can be taken away and in
which it is visible and legible [F2or from which it can readily be produced in a visible and
legible form]if he has reasonable grounds for believing—
(a)that—
(i)it is evidence in relation to an offence which he is investigating or any other offence; or
(ii)it has been obtained in consequence of the commission of an offence; and
(b)that it is necessary to do so in order to prevent it being concealed, lost, tampered with or
destroyed.
(5)The powers conferred by this section are in addition to any power otherwise conferred.
(6)No power of seizure conferred on a constable under any enactment (including an
enactment contained in an Act passed after this Act) is to be taken to authorise the seizure of
an item which the constable exercising the power has reasonable grounds for believing to be
subject to legal privilege. - 8PACE CODE CCode C relates to the detention, treatment and questioning of suspects not related to terrorism in police
custody by police officers.
Code C summarises and encompasses Part III, IV & V of PACE.
Under code C an individual has the right to consult the codes of practice* before certain samples are taken
but there are exemptions:
The right to consult the Codes of Practice does not entitle the person concerned to delay unreasonably any
necessary investigative or administrative action whilst they do so.
Examples of action which need not be delayed unreasonably include:
• procedures requiring the provision of breath, blood or urine specimens under the Road Traffic Act 1988 or
the Transport and Works Act 1992;
• searching detainees at the police station;
• taking fingerprints, footwear impressions or non-intimate samples without consent for evidential purposes. - 9PACE & Fingerprinting.61Finger-printing.
(1)Except as provided by this section no person’s fingerprints may be taken without the appropriate consent.
(2)Consent to the taking of a person’s fingerprints must be in writing if it is given at a time when he is at a police station.
(3)The fingerprints of a person detained at a police station may be taken without the appropriate consent if—
(a)he is detained in consequence of his arrest for a recordable offence; and
(b)he has not had his fingerprints taken in the course of the investigation of the offence by the police. - 10PACE & Fingerprinting. continued(3A)Where a person mentioned in paragraph (a) of subsection (3) or (4) has already had his fingerprints taken in the course of the
investigation of the offence by the police, that fact shall be disregarded for the purposes of that subsection if—
(a)the fingerprints taken on the previous occasion do not constitute a complete set of his fingerprints; or
(b)some or all of the fingerprints taken on the previous occasion are not of sufficient quality to allow satisfactory analysis,
comparison or matching (whether in the case in question or generally). - 11PACE & Fingerprinting continued4)The fingerprints of a person detained at a police station may be taken without the appropriate consent if—
(a)he has been charged with a recordable offence or informed that he will be reported for such an offence; and
(b)he has not had his fingerprints taken in the course of the investigation of the offence by the police.
(4A)The fingerprints of a person who has answered to bail at a court or police station may be taken without the appropriate consent at the court or station
if—
(a)the court, or
(b)an officer of at least the rank of inspector, authorises them to be taken. - 12PACE & Fingerprinting continued(4B)A court or officer may only give an authorisation under subsection (4A) if—
(a)the person who has answered to bail has answered to it for a person whose fingerprints were taken on a previous occasion and there are reasonable
grounds for believing that he is not the same person; or
(b)the person who has answered to bail claims to be a different person from a person whose fingerprints were taken on a previous occasion.
(5)An officer may give an authorisation under subsection (4A) above orally or in writing but, if he gives it orally, he shall confirm it in writing as soon as is
practicable. - 13PACE & Fingerprinting continued5A)The fingerprints of a person may be taken without the appropriate consent if (before or after the coming into force of this subsection) he has been arrested for a recordable offence and released and—
(a)... he has not had his fingerprints taken in the course of the investigation of the offence by the police; or
(b).. he has had his fingerprints taken in the course of that investigation but
(i)subsection (3A)(a) or (b) above applies, or
(ii)subsection (5C) below applies. - 14PACE & Fingerprinting continued(5B)The fingerprints of a person not detained at a police station may be taken without the appropriate consent if (before or after the coming into force of this subsection) he
has been charged with a recordable offence or informed that he will be reported for such an offence and—
(a)he has not had his fingerprints taken in the course of the investigation of the offence by the police; or
(b)he has had his fingerprints taken in the course of that investigation but
(i)subsection (3A)(a) or (b) above applies, or
(ii)subsection (5C) below applies.
(5C)This subsection applies where—
(a)the investigation was discontinued but subsequently resumed, and
(b)before the resumption of the investigation the fingerprints were destroyed pursuant to section 63D(3)
Unfortunately this one
goes on for a while and
details multiple scenarios
when it is and is not
appropriate to take
fingermarks with and
without consent.
Including what
authorisation needs to
be formally obtained. - 15PACE: taking non-intimate samples without consent.Section 63 provides powers for taking a non-intimate sample without consent from a person in the
following circumstances:
1. Following charge with a recordable offence or notification that the person will be reported for
such an offence;
2. If the person is in police detention (or is being held in custody by the police authority of the
court), on the authority of an inspector which can only be given where the officer has reasonable
grounds for believing the suspect is involved in a recordable offence and the sample will tend to
confirm of disprove his involvement;
3. Following the conviction of a recordable offence. - 16PACE and DNA evidence.In August 2008, the Home Office published a further consultation on its
proposals to expand police powers, including the collection of DNA.
Buccal swabs are considered non-intimate, and therefore consent is not
required. However hair samples may be taken if the suspect proves
difficult.
If a suspect is being uncooperative the arresting officer will obtain the
sample for you. - 17ACPOEstablished in 1948, ACPO stands for the association of chief police officers for england, wales and northern ireland
the association of chief police officers not only provides guidance for good practice in all aspects of policing but also in times of national need ACPO, on behalf of all chief officers, coordinates the strategies policing response. - 18Some background with regards to ACPO and forensic investigations.The criminal justice and police Act 2001 amended PACE, and removed the requirement to
destroy DNA samples and fingerprints, relating to persons following acquittal at court or
their discontinuance of a case.
The criminal justice Act 2003 amended PACE providing the police with the additional power to take DNA samples and fingerprints without consent, from all persons detained at a police station having been arrested for a recordable offence. Where such an arrest results in no further action being taken, the individual is referred to as a ‘CJ Arrestee.’ Given these changes,(& other changes not currently listed on this PP,) the nominal records will now contain ‘Event Histories’ to reflect the fact that the subject may have been convicted (including cautions, reprimands &warnings), dealt with by the issue of a penalty notice of disorder, acquitted, or dealt with as a ‘CL Arrestee. - 19Codes of Practice – Police Officers The codes of Practice are also covered by Part VI subsections 66 & 67 of the Police and Criminal Evidence
Act 1984
66Codes of practice.
The Secretary of State shall issue codes of practice in
connection with—
(a)the exercise by police officers of statutory powers—
(i)to search a person without first arresting him;
(ii)to search a vehicle without making an arrest; or
(iii)to arrest a person; - 20Codes of Practice – Police Officers 66Codes of practice continued...
(b)the detention, treatment, questioning and identification of persons by police officers;
(c)searches of premises by police officers; and
(d)the seizure of property found by police officers on
persons or premises.
(2)Codes shall (in particular) include provision in connection with the exercise by police officers of powers under section 63B above.
(3)Nothing in this section requires the Secretary of State to issue a code of practice in relation to any matter falling within the code of practice issued under section 47AB(2) of the Terrorism Act 2000 (as that code is altered or replaced from time to time) (code of practice in relation to terrorism powers to search persons and vehicles and to stop and search in specified locations) - 21Forensic Regulatory Codes of Practice and Conduct.Code of Conduct for forensic science
practitioners The Forensic Science Regulator
sets out for all practitioners, whether
instructed by the prosecution or defence, the values and ideals the profession stands for.*
This Code of Conduct provides a clear
indication to customers and the public of
what they have a right to expect.
• *Developed from former work by the Council for the Registration of Forensic Practitioners.
So what is your duty? - 22Forensic Regulatory Codes of Practice and Conduct. As a practitioner:1. To recognise your overriding duty is to
the court and to the administration of
justice.
2. Act with honesty, integrity, objectivity
and impartiality,
3. Comply with the legal obligations
imposed on practitioners (and specifically expert witnesses) in the jurisdiction(s) in
which you practice.
4. Declare at the earliest opportunity any
personal, business and/or financial interest that could be perceived as a conflict of interest.
5. Act, and in particular
provide expert advice and
evidence, only within the
limits of your professional
competence.
6. Take all reasonable steps to maintain and develop your professional
competence, taking account of material
research and developments within the
relevant field. - 23Continued.. Forensic Regulatory Codes OF Practice and Conduct.7. Inform those instructing you, in writing, of any information which may
reasonably be considered to undermine your credibility as a practitioner or
the reliability of the material you produce and include this information
with/within any written report provided to those instructing you.
8. Establish the integrity and continuity of items as they come into your
possession and ensure these are maintained whilst in your possession.
9. Seek access to exhibits/productions/information that may have a significant impact on the output from your work* and record both the request for material and the result of that request.
10. Conduct casework using methods of demonstrable validity and comply
with the quality standards set by the Regulator** relevant to the area in
which you work. - 24Continued.. Forensic Regulatory Codes of Practice and Conduct.11. Be prepared to review any casework if any new information or developments are
identified that would significantly impact on the output from your work*
12. Ensure that the relevant instructing party is informed where you have
good grounds for believing a situation may result in a miscarriage of
justice, either by (a) invoking the appropriate organisational processes for
addressing potential miscarriages of justice or (where you do not operate
as part of an organisation or the organisation does not have appropriate
procedures)
(b) by informing the party directly.
13. Preserve confidentiality unless the law obliges, a court/tribunal
orders, or a customer explicitly authorises disclosure. - 25Non – fatal offences against a person. (Sexual Offences.)The law with regards to rape, assault
by penetration and sexual assault.
These crimes are defined by the
Sexual Offences Act 2003. - 26Rape.RAPE
(1)A person (A) commits an offence if—
(a)he intentionally penetrates the vagina, anus or mouth of another
person (B) with his penis,
(b)B does not consent to the penetration, and(c)A does not reasonably
believe that B consents.
(2)Whether a belief is reasonable is to be determined having regard to all the
circumstances, including any steps A has taken to ascertain whether B consents.
(3)Sections 75 and 76 apply to an offence under this section.
(4)A person guilty of an offence under this section is liable, on conviction on
indictment, to imprisonment for life. - 27Assault by penetration.Assault by penetration:
(1)A person (A) commits an offence if—
(a)he intentionally penetrates the vagina or anus of another person (B) with a
part of his body or anything else,
(b)the penetration is sexual,
(c)B does not consent to the penetration, and
(d)A does not reasonably believe that B consents.
(2)Whether a belief is reasonable is to be determined having regard to all the
circumstances, including any steps A has taken to ascertain whether B consents.
(3)Sections 75 and 76 apply to an offence under this section.
(4)A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life. - 28Sexual AssaultSexual assault
(1)A person (A) commits an offence if—
(a)he intentionally touches another person (B),
(b)the touching is sexual,
(c)B does not consent to the touching, and
(d)A does not reasonably believe that B consents.
(2)Whether a belief is reasonable is to be determined having regard to all the circumstances,
including any steps A has taken to ascertain whether B consents.
(3)Sections 75 and 76 apply to an offence under this section.
(4)A person guilty of an offence under this section is liable—
(a)on summary conviction, to imprisonment for a term not exceeding 6 months or a
fine not exceeding the statutory maximum or both;
(b)on conviction on indictment, to imprisonment for a term not exceeding 10years - 29Theft.Basic definition of theft. (Theft Act 1968.)
(1)A person is guilty of theft if he dishonestly appropriates property
belonging to another with the intention of permanently depriving the
other of it; and “thief” and “steal ”shall be construed accordingly.
(2)It is immaterial whether the appropriation is made with a view to
gain, or is made forthe thief’s own benefit. - 30Burglary.As covered in the Theft Act 1968.
Burglary.
(1)A person is guilty of burglary if—
(a)he enters any building or part of a building as a trespasser and with intent to commit any such
offence as is mentioned in subsection (2) below; or
(b)having entered any building or part of a building as a trespasser he steals or attempts to steal
anything in the building or that part of it or inflicts or attempts to inflict on any person therein any
grievous bodily harm.
(2)The offences referred to in subsection (1)
(a) above are offences of stealing anything in the building or part of a building in question, of
inflicting on any person therein any grievous bodily harm F2... therein, and of doing unlawful
damage to the building or anything therein. - 31N.BThe following slides are revision from stage 1 – However they cover fatal offences against the person, which you should familiarise yourself with.
They have been included as they are relevant to the structure of the Law and relate to Offences against Persons.
Law is often established by case precident and being aware of case examples of essential to the
correct understanding of the application of the Law. - 32Guilty? Or not Guilty?Actus non fit reus nisi sit rea
– which means; “the act is not regarded as “guilty” unless the mind is guilty.
Therefore intent or the prediction of harmful events by a reasonable person must be proven in order for a crime to be committed.... - 33Mens rea and motiveMens rea is not the same as motive.
The reason that an individual commits an unlawful act is the motive. Whether the
individual intended the act or predicted or foresaw the consequences is the mens rea.
Intention is separate from desire.
In other words you can act unlawfully by an omission. - 34Murder. A definitionMurder and Manslaughter are two of the offences that constitute Homicide.
Subject to three exceptions (see Voluntary Manslaughter) the crime of murder is committed, where a person:
of sound mind and discretion (i.e. sane);
unlawfully kills (i.e. not self-defence or other justified killing);
any reasonable creature (human being); in being (born alive and breathing through its own
lungs - Rance v Mid-Downs Health Authority (1991) 1 All ER 801 and AG Ref No 3 of 1994 (1997) 3 All ER 936;
under the Queen's Peace;
with intent to kill or cause grievous bodily harm (GBH). - 35Murder.Where the act or omission occurred after 7 June 1996, death no longer needs to
follow within a year and a day. Note however that the Attorney General's consent
must be obtained before initiating proceedings, if:
1) the injury alleged to have caused the death was sustained more than three years
before the death occurred; or
2) the accused has previously been convicted of an offence committed in
circumstances alleged to be connected to the death. Please refer to Consents to
Prosecute, elsewhere in the Legal Guidance. - 36Murder.As these offences are highly sensitive, and to ensure consistency of approach, all cases in which a homicide prosecution is being considered where either death occurs more than 3 years after
the original injury was sustained or after a person has previously been convicted of an offence committed in circumstances connected with the death require the approval of the Director of
Public Prosecutions' Principal Legal Advisor prior to the obtaining of the Attorney General's consent.
A British subject can be indicted for murder or manslaughter in England and Wales even when he commits the offence outside the jurisdiction. The nationality of the victim is immaterial: section 9 Offences against the Person Act 1861.
Murder cannot be committed by a company or other corporation. (However, see Corporate Manslaughter elsewhere in the Legal Guidance). - 37Murder – transferred maliceTransferred malice is when the
individual did not intend to
harm “that person” but did so
“by accident” when intending
to cause another harm. - 38Murder – transferred malice – example. Case precident: R v Latimer (1886) 17 QBD 359.The defendant struck a blow with his belt at Horace Chapple which recoiled off him, severely injuring an
innocent bystander.
The defendant was convicted of maliciously wounding the victim, and appealed on the ground that it had
never been his intention to hurt her.
The court held that the conviction would be affirmed.
The defendant had committed the actus reus of the offence with the necessary mens rea, ie he had acted
maliciously. There was no requirement in the relevant act that his mens rea should relate to a named victim.
Thus, Latimer's malice was transferred from his intended to his unintended victim.
Simply put:
If you intended to shoot A, but miss and shoot B instead; you are still liable for murder.
Note: the harm caused MUST coincide with the malice being transferred. - 39ProvocationAs covered by s.3 Homicide Act 1957.
Only a partial defence to fatal offence - Can reduce the charge of murder to manslaughter if the defendant is able to prove a ‘sudden and temporary loss of control.’ (Subjective.)
Would a reasonable person with the characteristics of the accused have reacted in that
way?
Cumulative provocation? - 40R v Ahluwalia(1993) CAAhluwalia was subjected to 10 years of spousal violence and degradation, she threw petrol in her husband's
bedroom and set it alight, causing his death.
Held: Only Parliament, not the courts, could permit a provocation defence in circumstances of 'a "slow-burn"
reaction [to long-term spousal violence] rather than by an immediate loss of control'. - 41R v Ahluwalia(1993) CA'The subjective element in the defence of provocation would not as a matter of law be negated simply
because of the delayed reaction in such cases, provided that there was at the time of the killing a 'sudden and
temporary loss of self-control' caused by the alleged provocation. However, the longer the delay and the
stronger the evidence of deliberation on the part of the defendant, the more likely it will be that the
prosecution will negative provocation.' No evidence was adduced at trial that D suffered from a post-traumatic
stress disorder or 'Battered Woman Syndrome', so as to effect the characteristics relevant to the
reasonableness of D's actions under the second part of the provocation test.
Note The Court of Appeal admitted evidence at the appeal level, quashing the murder condition on the basis of
D's depressive condition. At re-trial her plea of manslaughter by defence of diminished responsibility was
accepted. - 42Self-defence.As in common Law and s.3 Criminal Law Act 1967.
“...a person may use such force as is reasonable in the circumstances in the
prevention of crime.”
Self-defence is a full defence to ALL charges of violence against the person –
will result in an acquittal if proved.
The defendant must provide evidence for the following;
- Necessity – a belief that you were faced with an imminent attack and had no choice but to defend yourself.
- Reasonableness – the response was proportionate to the threat. - 43Manslaughter Manslaughter can be committed in one of three ways:1) killing with the intent for murder but where a partial defence applies, namely loss of control, diminished
responsibility or killing pursuant to a suicide pact.
2) conduct that was grossly negligent given the risk of death, and did kill, is manslaughter ("gross negligence
manslaughter"); and
3) conduct taking the form of an unlawful act involving a danger of some harm, that resulted in death, is manslaughter ("unlawful and dangerous act manslaughter"). - 44Manslaughter Manslaughter can be committed in one of three ways:The term "involuntary manslaughter" is commonly used to describe a manslaughter falling within (2) and (3)
while (1) is referred to as "voluntary manslaughter".
There are of course other specific homicide offences, for example, infanticide, and causing death by
dangerous or careless driving. For dangerous driving see CPS Guidance on prosecuting cases of Bad Driving
elsewhere in the Legal Guidance. Guidance on Corporate Manslaughter is available elsewhere in the Legal
Guidance - 45Voluntary & Involuntary manslaughter.Voluntary:
Malice aforethought is
present.
Circumstances reduce
blame.
• Provocation
• Diminished responsibility.
Involuntary:
Malice aforethought is
not present.
Circumstances were to
blame.
• Unlawful act.
• Gross Negligence. - 46Unlawful act manslaughter.The defendants act must have caused the death of another
(the same principles of causation as with murder.)
The act committed by the defendant must have been unlawful.
The defendants act must also have been dangerous.
(Exposing the victim to risk of harm.) - 47R v Kennedy. – Case ExampleR v Kennedy [1999] Crim LR 65 Court of Appeal The appellant prepared a solution of heroin filled a syringe and handed it to Mr Bosque, a fellow resident at a hostel. Bosque injected himself and died. The appellant was convicted of supplying a class A drug and constructive manslaughter. The appellant appealed contending that there was no direct causal link between the unlawful act of supplying heroin and the death of Bosque.
Held:
Appeal dismissed. Conviction upheld. The unlawful act was Bosque injecting himself, which the appellant assisted. The injection by Bosque was the direct cause of death. - 48DPP v Newbury.In DPP v Newbury 1977 – the defendant does not have to realise their act is dangerous – objective test.
but “a reasonable and sober person” must be endowed with the knowledge that the defendant processed.
but should “reasonable and sober person” would recognise the act much inevitably subject the other person to, at least, the risk of harm resulting in wherefrom, albeit not serious harm – Edmund Davies. - 49DPP v Newbury.DPP v Newbury [1977] AC 500 House of Lords
Two 15 year old boys threw a paving slab off a railway bridge as a train approached. The paving slab went
through a glass window on the cab of the train and struck the guard killing him. The boys were convicted
of manslaughter. The Court of Appeal dismissed the boys' appeals. The boys appealed to the Lords with
the following certified question of law:
" can a defendant be properly convicted of manslaughter, when his mind is not affected by drink or drugs,
if he did not foresee that his act might cause harm to another?"
Held:
There is no requirement that the defendant foresees that some harm will result from his action. The
applicable law is that stated in R v Larkin as modified in R v Church. The statement relating to foresight
made by Lord Denning in Gray v Barr was erroneous and not binding in the criminal division of the Court
of Appeal. - 50Gross Negligent Manslaughter.It is rare within the law that an offence can be committed by a failure to act but Gross negligent manslaughter is one of those instances.
Whilst there is no general duty to act when others are in peril, common law does recognise
liability for omissions in specific situations:
-special relationships
- assumption by conduct
- responsibility under statute
- responsibility under contract
- where the defendant causes a dangerous situation - 51R v Malchereck (1981)In R v Malchereck the defendant claimed a defence of novus actus interveniens. – Meaning that
the doctors actions would have interrupted the chain of causation.
The defendant stabbed his wife.
His wife was taken to hospital & appeared to recover but collapsed.
A clot was removed but the victim was placed on life support.
After a time the doctor declared the victim brain-dead and discontinued the life support.
HELD- rejected, the D's act was an operating and substantial cause of death. - 52R v Adomako (1994).The defendant was an anaesthetist. They failed to observe during an eye operation that the tube inserted in
the victims mouth had become detached from the ventilator, causing the victim to suffer a cardiac arrest and
eventually die.
Held: D was guilty of manslaughter by gross negligence, which is established where D breached a duty of care
towards V that caused V’s death and that amounted to gross negligence. - 53R v Adomako (1994).Lord MacKay LC:
“…gross negligence…depends…on the seriousness of the breach of the duty committed by the defendant in all
the circumstances in which he was placed when it occurred and whether, having regard to the risk of death
involved, the conduct of the defendant was so bad in all the circumstances as to amount in the jury’s judgment
to a criminal act or omission”.
the essential ingredients of involuntary manslaughter by breach of duty:
(1) proof of the existence of the duty;
(2) breach of that duty causing death; and
(3) gross negligence which the jury considered justified a criminal conviction. - 54Summary Actus Reus Murder & Manslaughter.
- 55Automatism.Insane and non-insane automatism.
Insane = internal (e.g. Schizophrenia.)
Non – insane = external (e.g. Triggered by an external factor but is NOT a
defence is self induced.)
Automatism is defined as a defect of reason from disease of the mind.
“... a self-induced incapacity will not excuse...nor will one which could have
reasonable been foreseen..” – R v Quick [1973].
You must prove both a ‘disease of the mind’ & ‘a defect of reason.’ - 56R v Clarke [1972] 1 All ER 219 Court of AppealMrs Clarke, a 58 year old woman, absent-mindedly placed a jar of mincemeat, a jar of coffee and some butter into her bag whilst shopping in a supermarket. She had no recollection of placing the items in her bag. Medical evidence was given at her trial which stated that she was
suffering from depression and was diabetic. The trial judge ruled that this raised the defence of insanity. At this point Mrs Clarke changed her plea to guilty and then appealed against the
judge's finding of insanity.
The court of appeal disapproved of this – even if depression was a ‘disease of the mind,’ forgetfulness is not a defect of reason.
Held: Guilty - Theft
Short periods of absent-mindedness fell far short of amounting to a defect of reason.
Información
- Descripción
- - (second year) Forensics Fichas sobre PACE, Disclosure and Code of Practice., creado por megan trent el 25/03/2021.
- Creado por
- megan trent · mar 2021
- Actualizado
- 25 mar 2021
- Visitas
- 1
- Valoración