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Cases - law and morality

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Airedale NHS Trust v Bland [1993] HL

Attorney General’s Ref (No 6 of 1980) CA

Baker v Hopkins [1959] CA

Bolam v Friern Hospital [1957] QBD

Brown, R v (1993) HL

Central London Property v High Trees House [1956] KBD Denning J

Chadwick v British Railways Board [1967] QBD

Clark v MacLennan [1983]

Cox, R v (1992) Winchester Crown Court, Ognall J

Dudley & Stephens, R v (1884) CCR

F v West Berkshire Health Authority [1990] HL

Fairchild v Glenhaven [2002] HL

Frenchay NHS Trust v S [1993] CA

Gillick v West Norfolk and Wisbech Area Health Authority [1986] HL

Howe, R v [1987] HL

Human Fertilisation and Embryology Authority Ex p. Blood, R v [1997] CA

Knuller v DPP [1973] HL

Nettleship v Weston [1971] CA

Pretty v The United Kingdom (2002) ECHR

R v R (rape - marital exemption) [1991] HL

Re A (Children) (2000) CA

Re B (A Minor) (Wardship: Medical Treatment) [1981]

Re B (adult: refusal of medical treatment) [2002] FD

Re J (a Minor) [1991] CA

Re S (Adult Patient: Sterilisation) (2000) CA

Re T [1992] CA

Re W (A Minor) [1992] CA

Roe v Ministry of Health [1954] CA

Shaw v DPP (1962) HL

Sheppard, R v [1980] HL

Sidaway v Bethlem Royal Hospital [1985] HL

Stone & Dobinson, R v  [1977] CA

Youssoupoff v MGM Pictures (1934) CA

 

Airedale NHS Trust v Bland [1993] HL

[Law and morality - medical treatment - whether withdrawal of artificial feeding lawful - patient in persistent vegetative state - maintenance of life by artificial feeding]
Tony Bland seriously injured in the Hillsborough disaster, was being kept alive only by extensive medical care (not a life-support machine). He had survived for three years in persistent vegetative state (PVS). He continued to breathe normally, but was kept alive only by being fed through tubes. He had no chance of recovery; his doctors (with the support of his family) sought a declaration from the court that it would be lawful for them to discontinue treatment so that he might die peacefully.


Held
:
Treatment could properly be withdrawn in such circumstances, because the best interests of the patient did not involve him being kept alive at all costs.

 

In this case feeding him was treatment and that treatment would not cure him and therefore was not in his best interests.

It was lawful for D's doctors to stop feeding him artificially.

 

See also Frenchay Healthcare National Health Service Trust v S [1994]. Similar issues can arise in respect of the very elderly or in respect of babies born with very severe mental or physical handicaps, especially where major (and possibly repeated) surgery would be needed to keep them alive see Re J [1991].

 

It was lawful for D's doctors to stop feeding him artificially.  The court had no option but to make a decision one way or the other.

Also here

Attorney General’s Ref (No 6 of 1980) CA

[Law and morality - agreement to fight in public place - not in public interest - does not affect properly conduct sport - lawful chastisement - reasonable surgical interference]
D aged 18 and the victim, aged 17, agreed to fight.


Held
: Not in the public interest for people to cause or try to cause each other actual bodily harm.
Per curiam
. Properly conducted games and sports, etc. OK


Acquitted at trial.

Baker v Hopkins [1959] CA

[Law and morality - courts attitude to resucers - tort law]

DD, a firm of contractors who had been employed to clean out a well.

Fumes from a petrol engine 30 feet below ground level gave of dangerous fumes.

 

Employees went down the well, and were overcome by the fumes. C were the executors of the estate of a doctor who attempted to rescue the employees, but in so doing was himself overcome by the fumes. All three men died.

 

Held: D were liable for all the deaths including the doctor.

It was a natural and probable consequence of the defendants' negligence towards the employees that someone would attempt to rescue them; the defences of novus actus interveniens and volenti non fit injuria could not be successfully relied upon against the doctor's dependants.

 

Morris L.J.:

"If... A by negligence places B in peril in such circumstances that it is a foreseeable result that someone will try to rescue B and if C does so try - ought C in any appropriate sense to be described as a ' volunteer'? In my judgment the answer is No...If C, actuated by an impulsive desire to save life, acts bravely and promptly and subjugates any timorous over-concern for his own well-being or comfort, I cannot think that it would be either rational or seemly to say that he freely and voluntarily agreed to incur the risks of the situation which had been created by A's negligence."

Haynes v Harwood [1935] KB applied.

C won

Bolam v Friern Hospital [1957] QBD

[Law and morality - defendant doctor may not be liable provided he acted in accordance with general practice]
D, doctor failed to give a muscle relaxant; Complainant suffered a fracture whilst he was undergoing electro-convulsive therapy. Differences of practice.


Held
: Not negligent if he had acted in accordance with practice


Complainant’s claim failed.

Brown, R v (1993) HL

 

Red Triangle indicating "Must Know" material

 

[ABH - harm caused - consent not relevant]
D1-5 engaged in various homosexual sadomasochistic practises in private.

They used genital torture and inflicted injuries, willingly and enthusiastically participating in the commission of acts of violence against each other for the sexual pleasure it engendered in the giving and receiving of pain. None requiring medical treatment.

 

Held: The courts will interfere, liability did occur, but not if it were a lawful act. Public policy, fear of proselytisation, corruption, cult of violence and potential for serious harm.
 

Absence of consent is not an element of assault occasioning actual bodily harm or unlawful wounding.

 

Consent is a defence to the infliction of bodily harm in the course of some lawful activity, but ought not to be extended to sadomasochistic encounters.

 

Lord Mustill, dissenting,

'these consensual private acts are [not] offences against the existing law of violence',

 

Lord Slynn found no compelling reasons for creating criminal liability.

 

Definition of assault:

"At common law, an assault is an act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful personal violence and a battery is an act by which a person intentionally or recklessly inflicts personal violence upon another. However, the term 'assault,' is now, in both ordinary legal usage and in statutes, regularly used to cover both assault and battery."

All Guilty of ABH and three of wounding

Also here

Central London Property v High Trees House [1956] KBD Denning J

 

 

 

[Law and morality - the courts enforce a promise]

D leased a block of flats in London from C in 1937. When war broke out, many flats were left empty as people were evacuated to escape bombings. C agreed to reduce the rent by half if D stayed. D paid the reduced rent until the end of the war, and C then claimed for the "arrears".

 

Held: Denning J "discovered" the equitable doctrine of promissory estoppel, and said that although C were once again entitled to the rent originally agreed after the war ended, they could not go back on their promise to accept a reduced rent for the earlier years.

 

When a party to a contract makes a promise to the other, which he knows will be acted on, that he will not enforce his strict legal rights; the equitable principle of promissory estoppel makes that promise binding on him until such time as he gives reasonable notice of his intention to resume those rights.

Denning J (obiter dicta) said that had Central London sued for the arrears for the years 1940-45, it would have failed.  It would have been estopped from going back on its promise [as set out in the 1940 agreement] to accept a reduction in rental, even though that promise had not been supported by any consideration from High Trees because to hold otherwise would have been unjust


Also here

Chadwick v British Railways Board [1967] QBD

[Law and morality - courts approach to rescuers]
 

D the railway board responsible for a major train accident caused by their negligence. C the wife of a volunteer who took part in rescue work suffered nervous shock and became psychoneurotic as a result of his experiences.

 

Held: Damages were recoverable for nervous shock even where the shock was not caused by fear for oneself or the safety of one's children and in the circumstances injury by shock was foreseeable.

 

D ought to have foreseen the existence of a rescuer and accordingly owed him a duty.

 

C won

Also here

Clark v MacLennan [1983]

[Law and morality - defendant doctor may not be liable provided he acted in accordance with general practice]
D, doctor operated to relieve stress incontinence after birth one month after the birth normal practice three months.


Held
: D's departure from the general practice had not been justified.


Complainant’s claim succeeded.

Cox, R v (1992) Winchester Crown Court, Ognall J

[Law and morality - doctors who kill may be murderers - double effect]

D, a GP injected a lethal dose of potassium chloride into his patient V who shortly afterwards she died comparatively peacefully.  V Lillian Boyes was an elderly lady, terminally ill and in constant severe pain. With the knowledge and approval of her family, she asked D to end her suffering by hastening her death.

 

Held: D could not be charged with murder, because B had been cremated before any suspicion arose and the cause of her death could not conclusively be proved, but the jury found him guilty of attempted murder and the judge passed a suspended prison sentence.

 

Guilty of attempted murder given a 12 month suspended prison sentence

Also here

Dudley & Stephens, R v (1884) CCR

 

Red triangle indicating important information

[Law and morality - the law knows no defence of necessity]

Three sailors and a cabin boy were shipwrecked and were adrift in an open boat 1600 miles from land. After they had been eight days without food, and six without water, DD decided that their only chance of survival was to kill the cabin boy and eat him, and this they did. Four days later they were picked up by a passing ship, and on returning to England were convicted of murder.

 

Held:  Necessity can never be a defence to murder. Their sentence of death was later commuted to six months' imprisonment.

Guilty

Also here

F v West Berkshire Health Authority [1990] HL

[Law and morality - sterilisation of mentally handicapped person - voluntary in-patient at mental health hospital - inability of patient to consent - court's jurisdiction to give or withhold consent to operation]
D, health authority decided to have C (36 yrs) sterilised, because of her mental capacity.


Held
: It was in her best interests to be sterilised.


Sterilisation allowed

Fairchild v Glenhaven [2002] HL

[Law and morality - tort - negligence - causation – breach of duty causing or materially contributing to damage – whether C able to recover against 'either or both' employers]
Three conjoined appeals against an employer for damages for negligent exposure to asbestos dust which had caused a mesothelioma, but C could not show during which employment he had suffered the offending dust.

Held
: C could succeed against either or both employers, and it was up to them to sort out who would pay what proportion of the award.

Where

  • C  had been employed by more than one employer and,

  • D had a duty of care to prevent dust inhalation and,

  • D had been in breach of that duty and,

  • C had contracted mesothelioma, and

  • any other cause of mesothelioma could be ruled out but,

  • C could not (because of the limits of human science) prove during which employment he had inhaled the dust....

...C was entitled to recover against both his employers.
 

That conclusion was consistent with principle, and with authority, properly understood.

Where the conditions were satisfied, it was just and in accordance with common sense to treat the conduct of both employers in exposing the claimant to a risk to which he should not have been exposed as making a material contribution to the contracting by the claimant of a condition against which it was the duty of both employers to protect him.

Policy considerations weighed in favour of such a conclusion. It was a conclusion which followed even if one of the employers was not before the court.

It had not been suggested in argument that the claimant’s entitlement against either employer should be for any sum less than the full compensation to which he was entitled, although either of them could of course seek contribution against the other or against any other employer liable in respect of the same damage in the ordinary way.


C won

This decision was refined in Barker v Corus [2006] HL which stated that damages should be set in proportion to the amount of time a worker spent with a company.

Frenchay NHS Trust v S [1993] CA

^[Law and morality - medical treatment - best interests of patient to allow to die - consent of court to be obtained first]
D, the hospital where S aged 24 was a patient.  S was in a coma (PVS) following a drug overdose. Feeding tube became detached consultant recommended to do nothing.


Held
: There was no reason to question the conclusion of the consultant, who considered it in the best interest of the patient not to operate to replace the tube.


S allowed to die.

Gillick v West Norfolk and Wisbech Area Health Authority [1986] HL

[Law and morality - whether doctor may give advice and treatment on contraception to girl under 16 without parental consent]
Mrs Gillick a Roman Catholic mother of five daughters sought a declaration that a doctor would be acting unlawfully if he gave contraceptive treatment for any of her daughters without the mother's consent. 

 

It was argued on the one hand that teenage pregnancies would increase if the courts ruled that parental consent was necessary, on the other hand that the judges would be encouraging under-age sex if they did not.

Held
A doctor could prescribe contraceptives to a girl under 16 to prevent damage to her health, even though he knew it would assist a man to have unlawful sexual intercourse.

 

By a majority of three to two. A child under 16 who can fully understand the implications of the proposed treatment (a "Gillick competent" child) can give her own consent to medical treatment.

(Since Parliament had not legislated, the courts had to make a decision one way or the other.)


Mrs Gillick lost

Also here

Howe, R v [1987] HL

[Law and morality - judicial precedent – HoL  - examples of departing - influenced by morality]
D took part with others in two separate murders, and on a third occasion the intended victim escaped. D's claim to have acted under duress was left to the jury on two of the three counts, but D was convicted on all three

Held: Using the Practice Statement, departed from its decision in Lynch v DPP for Northern Ireland [1975] to say that no participant (whether principal or accessory) can claim duress in defence to a murder charge.

In Lynch, the House of Lords had held that duress was available as a defence to a person who had participated in a murder as an aider and abettor.  Not to do so would produce the illogical result that, whilst duress is a complete defence to all crimes less serious than murder, it is not even a partial defence to a charge of murder itself.

In R v Gotts [1992] the decision in Howe was extended by holding that duress is not a defence to attempted murder.

Lord Griffiths said:

" We face a rising tide of violence and terrorism against which the law must stand firm recognising that its highest duty is to protect the freedom and lives of those that live under it. The sanctity of human life lies at the root of this ideal and I would do nothing to undermine it, be it ever so slight.”

The prime factor in favour of overruling was that the cases were simply wrong as a matter of morality. The earlier cases had carved out a duress defence for certain secondary parties and now the Lords basically disagreed as a matter of morality with what had been done. That Howe was decided in the context of increased experience with and fear of IRA terrorism cannot be overlooked. A secondary reason for the overruling is connected with the Shivpuri factor that the exceptions carved out in the earlier cases lead to uncertainty in their application.

Human Fertilisation and Embryology Authority Ex p. Blood, R v [1997] CA

^[Law and morality - artificial insemination - dead husband's sperm]

Dianne Blood's husband, Stephen, contracted meningitis and lapsed into a coma. Samples of his sperm were collected by electro-ejaculation for later artificial insemination. Her husband died shortly after the samples were obtained.

 

The Human Fertilisation and Embryology Authority refused to give the necessary consent to treatment in the UK citing the Human Fertilisation and Embryology Act 1990 which required the written consent of a donor to the taking of his sperm.  They also refused to authorise export of the sperm for treatment abroad.

 

Held: Medical treatment for a woman and a man together could not occur after the man who had provided the sperm had died.

 

The absence of the necessary written consent meant that both Mrs Blood's treatment and the storage of her husband’s sperm were prohibited by the 1990 Act, and any exceptions in the Act did not apply.
 

By virtue of arts 59 and 60 of the EC Treaty, Mrs Blood, had a directly enforceable right to receive medical treatment in another member state, and the authority’s refusal to authorise the export of her husband’s sperm infringed that right since it made the fertilisation treatment she sought impossible.

 

Mrs Blood was allowed to use the sperm abroad

[Comment]: Mrs Blood used the sperm in a Belgium clinic and later gave birth to a boy, Liam.

She had a second son Joel. by the same method .

Under the Human Fertilisation and Embryology (Deceased Fathers) Act 2003 act, mothers such Mrs Blood whose children were conceived after their father's deaths, are given a six-month "window" in which to re-register their children's births.

Knuller v DPP [1973] HL

 

[Law and morality - courts dictate morality]
D published a gay contact magazine thereby conspiring to corrupt public morals.

Held:
In Shaw (1962) the House of Lords held that the common law crime of "conspiracy to corrupt public morals” existed despite many commentators believing that it did not exist; effectively the HoL created it.

Lord Reid had dissented in Shaw, and still believed it to be wrong, but it did not follow that it should now be reconsidered.

Lord Reid stated:

“I dissented in Shaw's case. On reconsideration I still think that the decision was wrong and I see no reason to alter anything which I said in my speech. But it does not follow that I should now support a motion to reconsider the decision. I have said more than once in recent cases that our change of practice in no longer regarding previous decisions of this House as absolutely binding does not mean that whenever we think that a previous decision was wrong we should reverse it. In the general interest of certainty in the law we must be sure that there is some very good reason before we so act.”

 Guilty

Nettleship v Weston [1971] CA

 

 

Also here

[Law and morality - decisions based on policy]
D a learner driver went out for her first lesson, supervised by a friend C. D crashed the car into a lamppost, and C was injured.

 

Held: Even learner drivers are to be judged against the standard of the reasonably competent driver. The fact that a particular driver is inexperienced and incompetent does not excuse his falling short of this standard.  It matters not that a learner driver is doing her incompetent best.
Lord
Denning applied policy considerations in deciding this case because, he said, the injured person can recover damages from the insurance policy; however the insured party must be at fault first.

 

Denning LJ

"Thus we are, in this branch of the law, moving away from the concept: 'No liability without fault'. We are beginning to apply the test: 'On whom should the risk fall?' Morally the learner-driver is not at fault; but legally she is liable to be because she is insured and the risk should fall on her."

C won damages subject to a deduction for contributory negligence.

Also here

Pretty v The United Kingdom (2002) ECHR

[Law and Morality - right to die - euthanasia]

Diane Pretty was terminally ill with Motor Neurone Disease. She wanted to obtain the right to be able to request medical help to die at a time of her choosing. Particularly, to be given a guarantee that her husband would not be prosecuted for assisting her suicide in an active way.

 

Held: Permission refused.

The Director of Public Prosecutions did not have the power to give an undertaking that he would not consent to prosecute the husband of a terminally-ill woman if he helped his wife to commit suicide.

Mrs Pretty died on 11th May 2002 her case received worldwide coverage. She was backed by the Voluntary Euthanasia Society (VES).

R v R (rape - marital exemption) [1991] HL

[Law and morality - changing attitudes]
D living apart from his wife raped her in her parents’ home, which he had forcibly entered.

 

Held: Abolishing a husband's 250 year old immunity from criminal liability for raping his wife The long-standing rule that a wife was deemed to have given her consent irrevocably was no longer appropriate.

Lord Keith:

"This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it"

Lord Keith thought this was an example of the common law evolving in the light of changing social, economic and cultural developments.

 

Guilty

Also here

Re A (Children) (2000) CA

 

 

Whole case here and here

^[Law and Morality – conjoined twins – CA not a court of morals]
‘Jodie’ and ‘Mary’ joined at the lower abdomen. Jodie's heart and lungs provided oxygenated blood for both. Both would die shortly if nothing were done. If the twins were separated, Jodie had a good chance of a fairly "normal" life but the operation would cause the immediate death of Mary. The twins' parents opposed the application for religious reasons.


Held
: Ward LJ said the court was ‘not a court of morals’ and considered that the operation would be lawful self-defence i.e. the doctors would be coming to the aid of Jodie.

 

Ward LJ:

"Mary may have a right to life, but she has little right to be alive...[she] is killing Jodie... she sucks the lifeblood of Jodie.
[Mary] will survive only so long as Jodie survives. Jodie will not survive long because constitutionally she will not be able to cope. Mary's parasitic living will be the cause of Jodie's ceasing to live."

 

Brooke LJ said there could be no doubt that in English law, a surgeon who performed the separation knowing that it would inevitably hasten Mary's death would be held to have caused that death and to have done so intentionally, even though that would not have been his primary motive. So far as the law was concerned, the doctrine of double effect did not apply here because Mary's death would not be a side-effect of treatment that was in her best interests overall. The defence of necessity would prevail:

'It has been said that there are three necessary requirements for the application of the doctrine of necessity. The act is needed to avoid inevitable and irreparable evil. No more should be done than is reasonably necessary for the purpose to be achieved. The evil inflicted must not be disproportionate to the evil avoided... I consider that all these requirements are satisfied in this case.' [You should note that this is in variance with cases such as Dudley and Howe].

Permission of operation granted, operation performed Mary died. The court expressly stated that this case creates no precedent for future cases.

Also here.

Re B (A Minor) (Wardship: Medical Treatment) [1981]

[Law and morality - newly born Mongol child requiring operation to save life - parents refusing consent - whether operation in child's best interests]
D, local authority. Surgeon agreed with parents to allow to die a child with Down's and complications.


Held
: Best interests of the child that she should have an operation, child could expect normal span of life of a Mongol.


Child allowed to live.

Re B (adult: refusal of medical treatment) [2002] FD

(Dame Elizabeth Butler-Sloss)

[Law and morality - the right to die]
D the hospital caring for the applicant Ms B who asserted her common law right as a competent adult to refuse life-sustaining treatment. Ms B became tetraplegic and suffered complete paralysis from the neck down, but she was able to move her head and speak. She gave formal instructions to the hospital through her solicitors that she wished artificial ventilation to be removed, even though she realised that that would almost certainly result in her death.


D argued "ambivalence" evidenced by the fact that Ms B had told the doctors that she was glad that effect had not been given to an earlier advance directive

D also argued benevolent paternalism or parentalism ('doctor knows best') Dame Elizabeth Butler-Sloss criticised this attitude in trenchant terms.

 

Held: It is established since Re T (adult: refusal of medical treatment) that a competent adult may refuse medical treatment, even if the likely result will be their own death, and that refusal may be for reasons which are rational, irrational, unknown or non-existent. This right has been confirmed in Airedale NHS Trust v Bland [1993] HL and Re MB (an adult: medical treatment) [1997], where can be found further ringing endorsements of the right of a capable person to self-determination.
Moreover, there is a presumption of capacity, and it is for those asserting the right to override the patient’s wishes to establish incapacity, rather than for the patient to establish her own capacity: Re C (adult: refusal of medical treatment).


Ms B was allowed to die and did so peacefully some weeks later.

Re J (a Minor) [1991] CA

[Law and morality - right of parents - to decide on the medical treatment]
D, doctors decided not to use a ventilating machine should baby J cease breathing. Baby suffered severe mental and physical handicaps.


Held
: It was the right of parents, and the court, to decide on the medical treatment. But, there was no absolute presumption in favour of life. Although there was no right to kill, there was equally no requirement to ‘strive officiously to keep alive’.


Mother's wishes approved; use of ventilator allowed.

Re S (Adult Patient: Sterilisation) (2000) CA

[Law and morality - mental disorder - medical treatment, consent to - sterilisation operation - Whether in patient's best interests]
S, a woman of 29 with severe learning difficulties had a phobia about hospitals and whose periods caused her distress. The mother's view that the major advantage of the hysterectomy over a contraceptive device was that it was a single procedure without the need for any further surgical intervention


Held
: Logically there could only be one best decision in S's best interests and, as the weight of the medical evidence supported the less invasive method as the preferred option, the mother’s concerns did not tilt the balance towards major irreversible surgery for therapeutic purposes.

The Bolam test became irrelevant to the judicial decision as to whether the treatment was in the patient's best interests as that process required the judge to have regard to the patient's welfare as the paramount consideration.

Re F (Mental Patient: Sterilisation)[1990] applied.


Patient’s appeal allowed

Re T [1992] CA

[Law and morality - consent to medical treatment - refusal of blood transfusion - whether refusal effective - whether doctors entitled to treat in accordance with patient's best interests]
T aged 20 years old, 34 weeks' pregnant, did not want a blood transfusion, because of her Jehovah's Witness beliefs. Her father wanted transfusion given forthwith.


Held
: Although an adult patient was entitled to refuse consent to treatment such a refusal may have been affected by illness, medication, false assumptions, misinformation, or her will overborne.


Blood transfusion lawful

Re W (A Minor) [1992] CA

[Law and morality - girl 16 refusing consent to proposed treatment - whether absolutely entitled to refuse treatment]
Local authority wanted to treat W against her wishes. W had anorexia


Held
: Law did not confer on a 16 an absolute right to determine medical treatment. Minor's wishes, which would be considered, could not overrule consent given by the court. Best interests required immediate treatment


W treated against her wishes

Roe v Ministry of Health [1954] CA

[Law and morality - defendant may not be liable provided he acted in accordance with general practice]
D, anaesthetist gave a spinal aesthetic contained in an ampoule, which had been contaminated with phenol.


Held
: The danger of invisible cracks not known until 1951.


Complainant’s claim failed

Shaw v DPP (1962) HL

[Law and morality - courts attempts to dictate morality]
D conspired to corrupt public morals by publishing a booklet containing details prostitutes, and their services.  This was hitherto an unused common law offence.

Held; Lord Tucker cited precedents for the offence.
Viscount Simonds;

In the sphere of criminal law, I entertain no doubt that there remains in the courts of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the state, and that it is their duty to guard it against attacks which may be the more insidious because they are novel and unprepared for.”

Lord Reid (dissenting) said there were widely differing opinions as to how far the law should punish immoral acts done in private,

 “Some think that the law already goes too far, some that it does not go far enough. Parliament is the proper place, and I am firmly of opinion the only proper place, to settle that.”

 Guilty

Sheppard, R v [1980] HL

[Law and morality - wilful neglect of child - mens rea - accused genuinely failing to realise child needed medical care - not an offence of strict liability to be judged by the objective test of what a reasonable parent would have done]
D's parents of 16-month-old son who died from hypothermia and malnutrition.


Held
: A genuine lack of appreciation that the child needed medical care or failure through stupidity, ignorance or personal inadequacy to provide that care were both good defences because wilfully neglecting a child was not an offence of strict liability. Not to be judged by the objective test of what a reasonable parent would have done. The civil law concept of negligence was not to be imported into the offence.


Not guilty

Sidaway v Bethlem Royal Hospital [1985] HL

[Law and morality - defendant may not be liable provided he acted in accordance with general practice]
D, surgeon. Complainant not informed of risk, suffered damage to the spinal cord.


Held
: 'Bolam Test' applies to question of whether to disclose risk.


Her claim failed

Stone & Dobinson, R v  [1977] CA

[Law and morality - manslaughter - assumption of duty of care for infirm person - indifference to obvious risk of injury to health - sufficient to prove recklessness]
D’s lived with eccentric F, who was anorexic. F died in bed.


Held
:

(i) The defendants had assumed the duty of caring for her.

(ii) Recklessness proved by indifference to an obvious risk or actual foresight of the risk and running that risk. Mere inadvertence, however, was insufficient to prove recklessness.


Both guilty

Youssoupoff v MGM Pictures (1934) CA

[Law and morality - morality shifting over time]

C complained that she could be identified with the character Princess Natasha in the film 'Rasputin, the Mad Monk'. The princess claimed damages on the basis that the film suggested that, by reason of her identification with 'Princess Natasha', she had been seduced by Rasputin.

 

Held: The princess was awarded £25,000 damages.

It was contended that if the film indicated any relations between Rasputin and 'Natasha' it indicated a rape of Natasha and not a seduction.

Slesser LJ considered the film defamatory whether it suggested rape or seduction:

“I, for myself, cannot see that from the plaintiff’s point of view it matters in the least whether this libel suggests that she has been seduced or ravished. The question whether she is or is not the more or the less moral seems to me immaterial in considering this question whether she has been defamed, and for this reason, that, as has been frequently pointed out in libel, not only is the matter defamatory if it brings the plaintiff into hatred, ridicule, or contempt by reason of some moral discredit on her part, but also if it tends to make the plaintiff be shunned and avoided and that without any moral discredit on her part. It is for that reason that persons who have been alleged to have been insane, or to be suffering from certain disease, and other cases where no direct moral responsibility could be placed upon them, have been held to be entitled to bring an action to protect their reputation and their honour. One may, I think, take judicial notice of the fact that a lady of whom it has been said that she has been ravished, albeit against her will, has suffered in social reputation and in opportunities of receiving respectable consideration from the world.”

Later he added:

'When this woman is defamed in her sexual purity I do not think that the precise manner in which she has been despoiled of her innocence and virginity is a matter which a jury can properly be asked to consider.'

 

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