Problem
The wound and what followed
D stabs V in the chest. At the hospital, a tired doctor misses the fact that a lung has been pierced and gives treatment that is thoroughly bad. V's brother, carrying him between wards, drops him twice. V, who is a Jehovah's Witness, then refuses a transfusion and dies of the bleeding. D says the doctor, the brother and V's belief each broke the chain, and that he is at most guilty of wounding. Advise the prosecution.
issue
Is D's stab still an operating and substantial cause of death?
rule
A result crime requires causation. The prosecution must prove that, but for the accused's act, death would not have occurred when it did, and that the act was more than a minimal cause. The legal test is whether the original injury is still an operating and substantial cause. In R v Smith, thoroughly bad treatment and clumsy carriage did not break the chain while the wound was still operating. The chain breaks when the wound is merely the setting, or merely part of the history, as in R v Jordan, where the mistaken antibiotics replaced the stab as the cause. R v Blaue holds that the accused takes the victim as he finds him, the whole person and not only the body. A refusal of treatment on religious grounds does not break the chain. The answer to the question what caused the death is the stab.
application
The bad treatment is Smith's case, not Jordan's. Nothing in the facts suggests that the treatment, or the two falls, replaced the wound. The wound is still bleeding, and it is the bleeding that kills. V's refusal is Blaue. D does not get to say the belief was unreasonable. But for the stab, V would not have needed a transfusion at all. The stab is a cause in fact and an operating cause in law. If the jury is sure of that, the homicide charge is open, and the mental element is a separate question. If causation failed, wounding would remain, because failure of the result does not undo the original offence.
conclusion
The prosecution can prove causation. The doctor, the brother and the refusal do not break the chain on these authorities. D's liability for homicide then depends on intention, provocation or the manslaughter tests, not on causation.
Essay
When foresight is intention
Intention has been said to include everything from a wanted result down to a result that was merely likely. Explain what the criminal law now treats as intention, and how a judge should direct a jury in a murder trial where the accused says he did not want anyone to die.
issue
What is the test of intention for murder, and what direction is a misdirection?
rule
Direct intention is a result the accused wants, however unlikely success may be. Oblique intention is a result he does not want, but foresees as a virtual certainty, and he goes on anyway. Moloney holds that foresight of a consequence as probable, highly probable or likely is not intention. Hancock holds that foresight of probability is evidence from which a jury may infer intention. It is not the test. Nedrick's two questions are how probable the consequence was, and whether the accused foresaw it. Woollin approves the Nedrick direction and rejects a direction in terms of substantial risk. Substantial risk is the language of recklessness. It widens murder. Motive is not a substitute for intention, as Steane and Ahlers show, but a jury is entitled to look at what the accused was trying to achieve.
application
A judge who tells the jury that a likely or probable death is an intended death is repeating the direction the House of Lords rejected in Moloney. A judge who says that a substantial risk of grievous bodily harm is enough is repeating the direction rejected in Woollin. The direction that survives is narrower. If killing or causing grievous bodily harm was the aim, that is direct intention, and foresight does not matter. If it was not the aim, the jury may find intention only where they are sure the accused foresaw that result as a virtual certainty. They should be told that the more probable the result, the more likely it was foreseen, and that foresight is the evidence, not the intention itself. On the facts of Hancock, a purpose of frightening miners did not become an intention to kill because death was a possible result of pushing concrete from a bridge. On the facts of Woollin, anger and a realisation of risk were not enough.
conclusion
Intention for murder is aim, or foresight of a virtual certainty. A direction in the language of probability or of substantial risk is a misdirection. The line from Moloney to Woollin is the direction a judge should use.
Problem
Two deaths, two routes
In the first case, L waves an open razor to frighten N. He does not mean to cut anyone. M, who is drunk, stumbles against the razor and is killed. In the second case, A, an anaesthetist, fails to notice that a breathing tube has disconnected. The patient dies. A did not assault anyone. Explain whether each is manslaughter, and on what basis.
issue
What is the difference between constructive manslaughter and manslaughter by gross negligence?
rule
Constructive manslaughter is a killing without malice aforethought by an unlawful act of a dangerous character. Larkin states it. The act must be a crime in its own right. Franklin holds that a mere civil wrong is not enough. Lamb holds that there is no assault, and so no unlawful act, where the accused neither intends to injure or alarm nor is reckless as to fright. Church and Newbury judge danger objectively: would all sober and reasonable people recognise the risk of some harm? The accused's own failure to see the danger does not help. Gross-negligence manslaughter, in Adomako, requires a duty of care, a breach, a risk of death, and negligence the jury finds to be gross. It does not require an unlawful act. Caldwell recklessness is not a third form.
application
L's case is Larkin. Waving a razor at N is an assault if L intends N to fear violence, which he does, because frightening N is his purpose. The act is dangerous. A sober person would see that an open razor can cut. M's drunken movement does not break that. L is guilty of manslaughter even though he did not intend to kill or to wound M. He would not be guilty on this route if, as in Lamb, there was no assault at all. A's case is Adomako. There is a duty, a breach, a death, and a risk of death. There is no assault and no need to invent one. The jury must still say that the negligence was gross. Carelessness of a civil standard is not enough. Andrews is the reminder that the departure must be criminal.
conclusion
L is guilty of constructive manslaughter if the razor was an assault and was objectively dangerous. A is guilty of gross-negligence manslaughter if the jury finds the negligence gross. The two routes are different, and neither requires the mens rea of murder.
