KembaraXtra-Case Law- Smith (1979) - Manslaughter and Duty to Act

Case Summary

• Parties: D (Husband), V (Wife)
• Facts: V died after childbirth. D did not call a doctor and concealed V's illness from relatives and medical professionals. D wanted to call a doctor, but V, due to a pre-existing medical aversion, refused.
• Charge: Manslaughter against D.

Legal Principle

• Duty to Act (Spousal Relationship): Spouses owe a legal duty to act towards one another, primarily arising from their marital relationship.

Key Takeaway

• The case highlights the legal expectation that individuals in certain relationships (e.g., spouses) have an affirmative duty to take steps to protect the well-being of the other party, even when facing resistance from the affected individual.
• The husband's failure to act (call a doctor) despite his wife's refusal constituted a breach of this duty, leading to a manslaughter charge.

Kembaraxtra-Case Law- Gibbins and Proctor (1918) CA

Case Summary

• Facts: A man and a woman, living together, withheld food from the man's child, leading to the child's death by starvation.
• Conviction: Both were convicted of manslaughter.

Key Legal Principles

• Duty to Act (Parental): A parent has a legal duty to act (e.g., provide food) for their child.
• In this case, the man, as the child's father, owed this inherent parental duty.
• Duty Arising from Assumption of Responsibility: A person can incur a legal duty to act if they voluntarily assume responsibility for another's well-being.
• The woman, in this case, was found to have assumed such responsibility for the child, thereby incurring a duty to care.

Significance

This case illustrates two distinct ways a duty to act can arise in criminal law, leading to liability for omissions:

1. Status Relationship: (e.g., parent-child)
2. Voluntary Assumption of Care: (demonstrated by the woman's actions/inactions)

Kembaraxtra-Case Law- Criminal Law: Duty to Act - Shepherd (1862)

Case Name & Citation

Shepherd (1862)

Key Facts

• Defendant (D): Charged with murder of her daughter.
• Allegation: D purposely neglected to procure a midwife for her daughter during childbirth.
• Outcome: Daughter died in childbirth.

Legal Principle / Held

• No Duty to Act: A parent does not have a legal duty to act (e.g., provide assistance or care) towards an 18-year-old "entirely emancipated" daughter.
• Rationale: Unlike with a younger child, there is no expectation of assistance from a parent in such circumstances for an adult, emancipated child.

Key Takeaway

• The legal duty to act, particularly within family relationships, can be limited by the age and independence ("emancipation") of the individual.
• Parental duty to act typically diminishes as children reach adulthood and become independent.

Kembaraxtra-Case Law- Incitement: Impossibility-Fitzmaurice (1983) CA

• Facts: X asked D to organize the robbery of a woman. X secretly intended to report a separate security van robbery occurring simultaneously to claim a reward, making the planned robbery of the woman a charade for X's purposes.
• Ruling: D was found guilty of inciting the robbery.
• Reasoning: The commission of the robbery ("robbing a woman at Bow") was not impossible at the time of the incitement, even though it ultimately became a charade due to X's ulterior motive.
• Obiter Dictum (Neill J): "…where an offence is de facto impossible, D will not be liable for incitement to commit it."

Key Concept: Impossibility in Inchoate Offenses

• Incitement: Impossibility can be a defense.
• If the incited act is "de facto impossible," there is no liability for incitement.
• Attempt: Liability is incurred for attempting the impossible.
• Statutory Conspiracy: Liability is incurred for conspiring to commit the impossible.

Kembaraxtra-Case Law- Case Brief: Mason (1998) CA

Key Concepts

• Incitement: The act of encouraging or persuading another to commit a crime.
• Mens Rea: The mental state required for a crime (guilty mind).
• Actus Reus: The physical act of the crime (guilty act).

Case Summary

• Parties: D1 (sister), D2 (brother), V (victim, D1's lover).
• Facts: D1 expressed to D2 her desire to "get rid of" V. D2 subsequently attacked V with a hammer and stabbed him.
• Charge: Inciting attempted murder.

Court Holding

• Not Guilty: Inciting attempted murder.
• Guilty: Inciting the infliction of grievous bodily harm.

Rationale for Mens Rea in Incitement

• Test Applied: Subjective test.
• Principle (Buxton LJ): The court must determine "what [the defendant] subjectively herself intended to convey by the use of those words" alleged to be the incitement.
• Rejection: Objective test was explicitly rejected.

Application to Mason

• D1's words "get rid of him" were interpreted subjectively.
• The court found that D1's subjective intent did not extend to causing death (attempted murder), but did encompass causing serious injury (grievous bodily harm).

Kembaraxtra-Case Law- Shaw (1994) CA

Case Summary

• Parties: D (Defendant), E (Employee)
• Action: D persuaded E to accept bogus invoices and issue cheques.
• Knowledge: D knew E would be acting dishonestly.
• D's Motive: To expose the company's inadequate accounting systems.

Legal Outcome

• Charge: Incitement to obtain money by deception.
• Verdict: D was not guilty.

Key Principle

• Motive vs. Intent: The court differentiated between D's ultimate motive (revealing poor accounting) and the immediate intent of the act. While D knew E would act dishonestly, D's overarching purpose negated the specific intent required for incitement to obtain money by deception in this particular context. This suggests that the purpose behind the incitement can be a crucial factor.

Kembaraxtra-Case Law-Incitement and Conspiracy: R v Booth (1998)

Case Overview

• Case Name: R v Booth (1998)
• Allegation: Authors allegedly incited readers to commit criminal damage and economic sabotage for environmentalism and animal liberation causes.
• Outcome: Defendants found not guilty of incitement to commit criminal damage and arson.

Key Legal Principles

Jury Direction Failure

• The jury direction was inadequate as it failed to specify all elements of the alleged primary offenses.

Incitement and Conspiracy Involving Multiple Offenses

• General Rule (per Henry LJ): When a single count charges incitement (or conspiracy) to commit more than one offense:
• The Crown must generally prove that the incitement/conspiracy encompasses all the offenses alleged in the particulars.
• Alternatively: The Crown must at least prove that it encompasses the most serious of the offenses alleged.

Application in Booth

• The prosecution's failure to adequately establish the defendants' intention or agreement to incite all specified offenses, or at least the most serious ones, contributed to the not guilty verdict.

Kembaraxtra-Case Law- Criminal Law: Incitement

1. Definition and Elements

Incitement occurs when an individual encourages or persuades another person to commit a crime with the intent that the crime be committed.

Key Elements (from Marlow (1997)):

1. Encouragement/Persuasion: The words, taken as a whole, must amount to encouragement or persuasion to commit a crime.
2. Intent: The author of the words must have intended to encourage the commission of that crime.

2. Case Law Examples

2.1. Marlow (1997) CA

• Facts: The defendant (D) published a book detailing cannabis cultivation and production. Customers used this book to commit drug offenses.
• Holding: D was found guilty of incitement to commit drug offenses.
• Principle: This case established the two-part test for incitement outlined above (per Potter LJ).

2.2. CBS Songs Ltd v Amstrad (1988) (Obiter Dicta)

• Context: While primarily a civil case concerning tort and copyright infringement, Lord Templeman provided an illustrative example of incitement.
• Example: If a fourth person incites three others to break into a house and cause damage:
• The inciter is guilty of the criminal offense of inciting others to commit a crime.
• The three others are guilty of the crime of breaking in.

3. Key Takeaways

• Incitement focuses on the act of encouraging or persuading and the inciter's intent.
• The actual commission of the encouraged crime by the incited party is not a prerequisite for an incitement charge against the inciter, though it often occurs simultaneously.
• Incitement is a distinct criminal offense from the substantive crime itself.

Kembaraxtra-Case Law- Incitement: Key Principles-Case Summary: James and Ashford (1985) CA

• Facts:
• Defendant (D): Manufactured devices designed to reverse electricity meters.
• Intent: To sell these devices to a third-party retailer.
• Retailer's Role: To sell the boxes to customers.
• Customers' Role: To use the devices illegally (to reverse meters).
• Holding: D was found not guilty of incitement.

Rationale for the Holding

• Lack of Direct Incitement: The court found no evidence that D incited the "middleman" (the retailer) to use the illegal devices themselves.
• Absence of Incitement to Incite: There was also no evidence that D incited the middleman to incite the ultimate users (the customers) to commit the illegal act.

Key Takeaway on Incitement

• Incitement generally requires a more direct encouragement or persuasion towards the commission of an offense by the incited party.
• Merely supplying tools or materials for an offense, without direct incitement to commit the offense or to incite others, may not be sufficient for an incitement charge.