Hi, I've just been practicing writing out an essay and i produced this I'm not sure how good it is, but I'd like your advice on how to improve it. Any constructive criticism and advice would be greatly appreciated and what grade a may get.
This is question 7 on the attached paper.
Francesca may be charged for unlawful act manslaughter due to the death of Jordan.
Unlawful Act Manslaughter occurs when an unlawful and dangerous act caused the death of the victim.
The unlawful act can be against the person, property or not against the person at all. In this scenario it was the grievous bodily harm inflicted onto Jordan under s.20 of offences against the persons act 1981.
The Actus reus for grievous bodily harm is unlawfully wounding (Eisenhower) or unlawfully inflicting grievous bodily harm. In the scenario Jordan was viciously attacked by a strike to the face. This battery inflicted grievous bodily harm, as once he stumbled to the ground he suffered a fractured skull, which is more than serious harm (Saunders). This is made even more serious by the fact he was a vulnerable 14 year old boy (Bollom), which means the very serious harm meets the requirements of GBH under s.20 offences
The mens rea for grievous bodily harm is intentionally or recklessly causing some harm albeit not serious harm. Francesca only wanted to escape, so there was no intention to the fractured skull, only the actual bodily harm resulting from the strike and so she was reckless to the harm, as she would have realised that ABH to a child would cause serious harm, but she went ahead with it anyway.Therefore as there was no intetion she would be liable under s.20 and not s.18 offences.
The test of whether the unlawful act was dangerous comes from the case of Church, which is a objective test, which asks whether a sober and reasonable person would realise the risk of some harm, albeit serious harm. If the answer is yes, the act is dangerous. In this scenario it would be obvious to the sober and reasonable that striking a child in the face would cause him to become unbalanced, by which he would stumble and fracture his skull. Likewise any bystander would also realise the risk of some harm (Dawson). In this scenario Francesca had been drinking, however it is likely that the courts would come to the conclusion that it was dangerous, because she was able to comprehend and plan the ABH on Jordan and so she would have been able to think of the dangers of doing so.
The Unlawful and dangerous act must of caused the death of the victim. Francesca was a factual cause of the death, as but for her striking Jordan, he would not have fell and fractured his skull (White). She was also a legal cause of the death of Jordan, as striking him was the operating an substantial cause of death (Jordan) and so it does not matter if there were novus Actus interveniens, such as Kwarmes negligence, as compared to the injury this is insignificant (Smith) and he may have died anyway. This is further reinforced by the fact he was a vulnerable 14 year old boy and so Francesca should of took Jordan as she found him. (Blaue) and so is a legal cause of death.
Next the mens rea of unlawful act manslaughter must be proved. Since the case of Newbury v Jones no additional mens rea is required, only the mens rea from the unlawful act is needed. Therefore as recklessness for GBH under s.20 offences is proved, she would be charged with unlawful act manslaughter.
Francesca may try to use the defence of intoxication, but this would be unsuccessful, as Francesca became intoxicated voluntarily and so the actions were brought on by herself.
Kwarme may be charged with gross negligent manslaughter due to the death of Jordan.Gross Negligent Manslaughter occurs when a breach of the defendants duty of care causes death of the victim. The leading case of Gross Negligent Manslaughter is admomako, which laid down the admomako test.
The first stage of the test is whether or not the defendant owed a duty of care to the victim. A duty of care can arise out of many situations. However in this scenario Kwarme owed a duty of care because he took voluntary responsibility of the situation (Stone v Dobinson) when he went to call and ambulance for Jordan.
The second stage of the test is whether or not the defendant breached his duty of care. A breach occurs when the defendant falls below the standard of a reasonable man (Blyth v Birmingham Waterworks). Kwarme was not a professional, learner or a child and so he will be judged against the standard of an ordinary person. (Wells v Cooper). This is an objective test and it would conclude that he fell below the standard of a reasonable person calling for an ambulance, as Kwarme knew the area and should have gave precise directions to access prompt medical treatment for Jordan, but instead gave the wrong location. This breach also posed a risk of death (Misra). A risk of death means the defendants actions increase the risk of harm to the victim. In this scenario it is obvious that omitting to give the right information to the ambulance operator would increase the risk of death.
The final stage of the test is that the breach of duty must of caused the death. Kwarme may have been a factual cause of the death of Jordan, as but for him giving the correct address, he would of got prompt medical treatment and his life may have been saved (White). Kwarme was not a legal cause of death, as he was not the operating and substantial cause of death (Jordan), instead Francesca was by the vicious attack. Even though his intervening actions which resulted in further damage (Providing the wrong address) it would not be significant enough to break the chain of causation. (Cheshire). So he would not be a legal cause of death.
Finally it must be proved that the negligence was gross. Gross negligence is defined by Bateman as a very high level of negligence, which creates such a disregard as to life (Andrews) which goes pass more than mere compensation and should be worthy of a crime against the state and worthy of punishment. In this scenario the Jury would have to vote unanimously on this level of negligence. This is unlikely to happen as even though he posed a risk of death, his actions were accidental and daft, not grossly wrong. Therefore he would not be found guilty of gross negligent manslaughter, as he did not legally cause the death and the negligence was not gross.Note there is no mens area for this crime, as in essence it is a conduct crime.
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Last edited by BR1999; 31-08-2016 at 11:54.
- 31-08-2016 11:52