Archive for the ‘Scenario’ category


December 31st, 2009

A slightly odd topic to round the year off with, but let’s consider a slippery patch of negligence.  John Redwood worries on his blog about the liability of those who have attempted to clear ice from pavements and driveways becoming liable for any personal injury that follows the clearing, whereas if the ice had been left no liability arises.

Here is my take on the idea, prefaced by saying I am quite still feeling quite ‘festive’, so would happily acknowledge a better response – please use the comments to correct me.

First up, I’d suggest the last idea is false in certain circumstances.  Schools, hospitals and other public services do have a duty of care to maintain safe access and these organisations should be working to clear ice on their premises.  I’d say the same rule applies to shopping centres and the large supermarket car park that I skied across the other day.

As for the pavement outside your house, which I think is Mr Redwood’s concern; I do see the legal argument for liability.  If this space is full of ice, like the whole street, this is an unavoidable natural event and so there is no-one with a duty of care.  If a dedicated householder sets out to clear the pavement, then they create an intervening event, presumably accepting a duty of care as they do so.  On the second day, our householder is feeling less dedicated, and does not clear the fresh ice.  Mrs Miggins, who has taken care all along the road on the obvious ice, sees the clear patch outside the house in question and gallops across, slipping on the unseen sheet-ice formed by the clearing.  In this case, presumably we have met the test of the duty of care (clearing the ice on day one), failing to meet this duty (not bothering on day two) and an injury results (Mrs Miggins breaking her hip and being off work for 3 months) our diligent householder would have to pay compensation to the careless Mrs Miggins.

Surely the answer is (like many things in life) either do it properly, or don’t do it at all!

A very happy 2010 to all, I think it going to be a very interesting year!

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Joint Enterprise

November 22nd, 2009

Picture the park entrance near your local run-down estate.  Outside, you see two stereotypical wastrels, hoods up, approach the entrance in conversation.  The grey hoodie wearer enters the park, whilst the blue hoodie wearer waits outside, nervously glancing around.  Minutes later, you hear a scream; the grey hoodie dashes out of the gate and runs off with the blue hoodie.  After running in to find the origin of the scream, in the distance you see a little old lady on the ground with a bloody wound to her neck.  The police arrive and ask you to describe the hoodies.  The paramedics pronounce the poor victim dead at the scene.

The police swiftly arrest Adam (grey hoodie) and Ben (blue hoodie).  What will happen to them? Firstly, should they share the same punishment?

It is more complicated than you might think, and like all the most interesting elements of criminal law, it depends on their mental state or their respective intentions.  There are three scenarios that could transpire in the police interview.

  1. Adam and Ben had never met before that day.  Adam found Ben waiting outside a corner shop and offered to pay him £20 if he stopped anyone coming into the park for 5 minutes.  Ben had no idea why he was doing this and doesn’t know what happened in the park.  He took his £20 and bought his girlfriend some flowers.
  2. Adam and Ben are both serious cocaine users and need money quickly.  They know Mrs. Miggins walks across the park on the way back from the post office, so they decide to rob her using a kitchen knife as a weapon.  Ben is less keen on the plan as they start to walk over and tries to back out.  Adam says Ben shouldn’t worry, that they won’t hurt Mrs. Miggins, and if it makes Ben happier, he can just be the lookout whilst Adam goes into the park.
  3. Adam and Ben are seeking entry to a local gang, and the entry ritual involves stabbing an innocent local and giving the purse or wallet of the victim as a tribute to the gang leader.  The gang leader, Carl, was watching from a car on the other side of the park.

This rather dark Sunday afternoon tale is intended to highlight the practical problems distinguishing between the legal concepts within secondary participation (the legal term for a group effort when comitting a crime).  It is currently relevant because the Crown Prosecution Service are trying to use the joint enterprise rules as a way of targeting gang violence, but it is quite a blunt instrument to use, as Ben might discover.  The BBC’s Panorama programme ‘Lethal Enterprise’  tomorrow evening on BBC One will be exploring this issue in more detail, so this post is intended to set the scene.

I will post an update to the Adam and Ben story later in the week.

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