Criminal Practice - Case Study Example

169557 When looking at the liability of each party in this particular situation it is necessary to examine causation and consider whether any events have occurred that can be deemed as having broken the chain of causation. The first area to analyse is the intention of Boris when he drove the car with PC Ali clinging to the bonnet. In this particular case it would appear that his intention was not to harm Ali but that he was attempting to evade arrest1. As a result of Boris attempting to escape from the police Ali was injured2. There have been several similar cases where officers have been injured by criminals attempting to evade arrest in this manner. The case of R v Boswell3 involved a defendant who was found guilty of causing death by dangerous driving whilst trying to avoid being arrested by the police. As a defence Boris could argue that the action of PC Ali in jumping on the bonnet of the car should give rise to a finding of contributory negligence as the officer deliberately put himself in danger by his actions4. A further defence that Boris might attempt to use is the fact that he has been diagnosed as having a personality disorder. This might help to reduce or extinguish the charges5. He might try to argue provocation as an alternative, for which he would have to prove that Ali’s actions were provocative6. in order to give an answer as to liability it is necessary to examine the mens rea of Boris at the time of the incident. He has stated that his intention was to frighten Ali and not cause him injury or kill him7. In R v Mann8 the courts reduced the sentence imposed after finding that it was not the intention of the defendant to harm the victim but just to frighten him. When looking at Boris’s intention it is important to emphasise the point that at the time he was trying to escape from the officer so that he would not be arrested. With this in mind the case of R v Fitzgerald9 might assist. In this case the defendant drove off in an attempt to escape police. The police officer tried stopping the defendant by clinging on to the front of the car. The defendant drove for some distance with the officer still clinging to the front of the car. Unable to control the vehicle properly the defendant crashed the car and was subsequently arrested. No one sustained any serious injury as a result but the defendant was charged with assaulting a police officer and attempting to resist arrest. The case of Ferguson v HM Advocate10 is based on similar facts to the one mentioned above. In this case the defendant fled from police whilst an officer was clinging to the door. The defendant was charged with assaulting the officer and resisting arrest. The courts made no finding of contributory negligence on the part of the officers concerned in either of these cases stating that the officers were performing their duties at the time by attempting to prevent the escape of a wanted person. Liability for Boris might also be avoided using the case of Boris is R v Huntroyd11. In this case the defendant drove his car at the police officer who jumped onto the roof of the vehicle to avoid being hit. For some considerable time the officer clung to the roof. Eventually he was thrown from the vehicle and sustained a variety of injuries. The court found the defendant guilty of attempting to cause grievous bodily harm with intent and sentenced him to 9 years. This case seems to suggest that Boris might face a similar charge as he drove the vehicle in a manner intended to throw the officer off the vehicle. Other cases that might lead the jury to a finding of guilt for the accused, is R v Parfitt12. The facts of this case would seem to suggest that Boris might well be found liable for the officer’s death. In Parfitt the defendant was found guilty of manslaughter after he threw an officer who was clinging to his car from the vehicle killing him. If Boris could establish that the chain of causation had been broken by intervening events he may be able to avoid liability for the officer’s death. In considering this it is necessary to examine the role of the doctor in this case as well as Colin the off duty officer. Dealing first with Colin, in order to assess his liability in this matter it is necessary to examine the duty of those who come upon a scene with regards to the offering of assistance13. As Colin is an off duty officer further consideration needs to be given as to whether this places a greater onus on him to assist in such situations. It is important to note that Colin did not hit Ali with his vehicle. This would mean that effectively Colin cannot be held liable for any of Ali’s injuries as he had no direct contact with him. In such a case liability might only arise with regard to Colin’s failure to assist Ali. Under UK law there is no legal obligation on an individual to assist a person in need of treatment unless that person was the cause of the injuries. There is also no legal liability for an omission to act where the person concerned is not responsible for the injuries of the victim. In Fagan v Metropolitan Police Commission [1969]14 the courts held it was an omission when the driver under police instruction was told to park his car close to the kerb and drove his car onto the officer’s foot. The defendant argued he lacked the mens rea for the offence at the time the act was committed, despite having the mens rea afterwards as he refused to remove the vehicle. He argued this was an omission and not a deliberate act. The court dismissed the appeal on the basis that the driving onto the officers’ foot and staying there was part of a continuous act rather than an act followed by an omission. They held that so long as he had the mens rea for the act at some point he was liable. Given that Coin had no involvement with this incident he should not be held liable for omitting to go to the aid of Ali. There are certain relationships within the UK where a positive duty to act might arise. The law recognises parents15 or teachers as falling within the category of those that have a duty to protect as they are responsible for the children in their care. Liability is also placed on members of the medical profession who are caring for patients within the hospital16. Where a person is injured in the street doctors and nurses have no legal obligation to assist that person unless they were directly responsible for that person’s injuries. Police officers also have a duty to assist but this only applies when they are acting in performance of their duties and does not place liability on them when they are off duty. Interpreting s27 of Halsbury’s Laws of England PC John Hurst attempted to place such liability on all individual to assist others. Hurst made the comment that he believed that this section implied such a duty as it states “The individual is under certain common-law duties to serve the public. In his considered opinion he stated that such an interpretation would mean that failure to assist could be classed as a criminal offence. At present the criminal justice system does not agree with PC Hurst’s and no such duty is imposed. It is fair to say that in this situation Colin is unlikely to face any liability in respect of PC Ali’s injuries. As Colin cannot be held liable Boris would have to hope that the courts would find that the actions of Dr Pan broke the chain of causation. Looking at the doctor’s actions the court should consider those actions in line with those of a competent doctor and decide from this whether Pan was competent or grossly negligent in the performance of his duties17. Any liability apportioned to Pan could affect the decision given against Boris. If the chain of causation has not been broken by intervening events then Boris could find himself facing charges for PC Ali’s death18. When dealing with Pan’s treatment of Ali it would appear that the doctor has acted negligently19. The pain suffered by Ali is a direct result of the blood that Pan gave to Ali. Similar cases that might assist in determining liability include Horton v Evans20. In this case the doctor was found guilty of gross negligence after administering the wrong dosage of medication to the patient which caused her to have a heart attack and die. A further case with a similar outcome was Public Prosecutor v Allain21. In this case the defendant was found guilty for failing to check to ensure the blood he gave to the victim was not infected. It transpired that the blood was infected with the HIV virus and the doctor was found guilty of gross negligence. Using both of these cases as authorities it would seem possible that the court may well decide that the doctor was grossly negligent and should be held responsible for PC Ali’s death. Pan would be relying on proving that the chain of causation had not been broken in order to avoid liability. Cases that might assist in establishing that the chain of causation has not been broken include R v Mellor22. In this case the court found the defendant guilty of murder after the victim died two weeks after being attacked. The cause of death was bronchopneumonia which was caused by the negligence of the hospital23. Despite the fact that had the medical staff given him oxygen on the day of his death he might not have died the court found that the chain of causation had not been broken and the defendant was liable for the death. By contrast in R v Jordan24 the court held that the injuries inflicted by the defendant were no longer an operative cause of death and that the defendant’s conviction for murder should be quashed. In raising a defence based on the negligence of the doctor Boris could rely on cases such R v Dyos25 in which the court found the defendant not guilty as they could not establish that both wounds had bee caused by the defendant. By contrast in R v Smith26 the defendant argued that the intervening events where the operative cause in the death of the victim27. The court did not agree and the defendant’s conviction was upheld. Boris might be able to establish that the actions of the doctor constituted a second injury. The above cases appear to suggest that the court could decide either way in respect of liability for Boris. Some of the cases suggest that the chain of causation might have been broken whilst others hint that there might have been such a break but are not prepared to negate the liability of the defendant. One final point to consider is the suicide of Ali28. Such actions could have the effect of absolving all parties of liability. To be able to decide whether the courts might find that the suicide of Ali negates all other liabilities it is necessary to examine cases where the victims have taken their own lives as a direct result of an injury against them29. In R v Anderson30 the victim of a rape found the humiliation too much to bear and ended her own life. The defendant was held liable for the suicide of the victim as the court held there was a causal link between the rape and the victim’s suicide. The family of the officer might attempt to prove that the hospital staff was negligent in leaving the scalpel in reach. To be able to prove this they would have to prove that the staff ought to have realised that he might do something like this31. As Ali had shown no suicidal tendencies during his treatment the hospital may well be able to avoid any liability for his death. the relatives could bring an action against the doctor on the principle that it was the negligent treatment of the doctor that led to the pain and suffering of Ali causing him to end his life to stop the pain. If the courts hold that the chain of causation has not been broken then Boris should be held liable. Boris could use any of the defences mentioned above. When looking at the defence of provocation s3 of the Homicide Act 1957 defines what constitutes provocation. The Act states Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or things said or both together32) to lose his self-control, the question whether the provocation33 was enough to make a reasonable man34 do as he did shall be left to be determined by the jury, and in determining that question the jury shall take into account everything both done and said according to the effect which in their opinion it would have on a reasonable man. It would be the responsibility of those representing Boris to prove that the actions of Ali were provocative and that a reasonable man faced with the same situation would react in the same manner. If he is intending to rely on his medical condition as a defence he would need expert medical opinion35 to prove that his disorder is such that such actions may be likely given the unstable nature of the defendant’s mental capacity. It can be concluded fro the above that Boris may well be held liable for the death of PC Ali if the chain of causation is deemed not to be broken. Colin is free of any liability as he is under no obligation to attend to his injured colleague as he is off duty at the time of the incident. If Colin had been on duty he would have had a responsibility to assist. Dr Pan may well face charges for gross negligence unless he can prove that his actions were triggered in response to the injuries caused by Boris. The giving of the wrong blood effectively places this defence in jeopardy. The subsequent suicide of PC Ali could have the effect of nullifying the liability of all parties, unless the courts are satisfied that there had been no break in the chain of causation. There could also be a claim as mentioned above based on the fact that PC Ali was able to get hold of the scalpel without anyone knowing. 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