Prosecuting 'Gross' Medical Negligence: Manslaughter, Discretion, and the Crown Prosecution Service

This article examines prosecutions of health care professionals for gross negligence manslaughter following fatal errors committed in the course of their work. Unease has long surrounded the use of 'gross negligence' as a form of criminal liability, and particularly as it applies to health care professions operating in high-risk settings. The recent dramatic rise of such prosecutions calls for a closer understanding of the processes by which important prosecutorial decisions are made. In particular, this calls for an investigation into the exercise of discretion by prosecutors in interpreting the loosely defined and contested concept of gross negligence. This article analyses data obtained from a statistical analysis of 'medical manslaughter' cases and also from interviews with crown prosecutors. Discussion of the main findings leads to the conclusion that the offence of gross negligence manslaughter is incapable of any objective and fair measurement and ought to be abolished.     

Human Rights Prosecutions and the Participation Rights of Victims in Latin America

Since the 1980s, there has been a significant rise in domestic and international efforts to enforce individual criminal accountability for human rights violations through trials, but we still lack complete explanations for the emergence of this trend and the variation observed in the use of human rights prosecutions in the world. In this article, we examine the role that procedural law has had in allowing societal actors to influence in this rising trend for individual criminal accountability. We do this by focusing on participation rights granted to victims, such as private prosecution in criminal cases. Based on an exploration of an original database on human rights prosecutions in Latin America and fieldwork research in three countries, we argue that private prosecution is the key causal mechanism that allows societal actors to fight in domestic courts for individual criminal accountability for human rights violations.     

Expert evidence and medical manslaughter: vagueness in action

This article examines the reliance placed on expert evidence in prosecutions of health professionals for gross negligence manslaughter, where juries must decide whether conduct goes beyond civil negligence and constitutes the crime of involuntary manslaughter. It argues that the test for liability is vague and examines some of the consequences of this. Given the vagueness of the offence, jurors are likely to place great reliance on expert medical evidence. Little is known about how experts negotiate the legal process, empirically speaking: how they approach their task, how they view their role as expert witnesses, and the attitudes, biases, and beliefs that may underpin their testimony. Drawing on the experiences and perceptions often medical experts, this article explores how experts manage the vagueness inherent in the task of interpreting and applying gross negligence. Experts appear to go beyond offering purely medical opinion and enjoy engaging with law and the legal process.     

重大医疗过失的判断标准——基于对中美医疗过失犯罪的比较考察

重大医疗过失意味着,诊疗行为表现出对患者安全的有意识漠视。重大医疗过失的典型行为类型是,明知从事医疗所需要的前提条件严重欠缺,却冒险开始或继续实施诊疗,以及在诊疗中轻率冒险或不注意而未认识到应该认识到的显著危险。最近,在医学判断错误成为问题的案件中,刑事司法的介入反映了医疗过失处罚范围的扩大化趋势。     

论自动驾驶汽车生产者的刑事责任

自动驾驶汽车是人类研发、制造、使用和管理的智能产品,不是犯罪主体或刑事责任主体。在自动驾驶汽车自主控制状态下发生交通事故的,其生产者、使用者和其他人员难以按照我国现有刑法的罪名定罪处罚。除非道路交通安全法和刑法有专门的规定,驾驶位人员不接管汽车或接管后无力改变交通事故结果的,不构成交通肇事罪或其他管理过失犯罪。驾驶位人员的注意义务是阻止自动驾驶汽车自主控制下发生交通事故,其注意义务不应过高。允许的风险、紧急避险理论不能为自动驾驶汽车紧急路况处理算法的生产与应用提供合法、合理的解决方案,生产者遵守算法安全标准仅可以使生产行为合法化。鉴于现行刑法不适应自动驾驶汽车应用的特性,我国应当建立以生产者全程负责为中心的新刑事责任体系,使之在自动驾驶汽车生产和应用两个阶段承担安全管理责任,生产者拒不履行自动驾驶汽车应用安全管理义务且情节严重的,应当承担刑事责任。     

Combating Child Sex Tourism in South‐east Asia: Law Enforcement Cooperation and Civil Society Partnerships

Many states have enacted extra‐territorial child sex tourism (CST) offences. Despite the existence of these offences, some states, including Australia and the United Kingdom, continue to privilege territorial competence as the basis of criminal jurisdiction. However, many destination countries for CST in South‐east Asia lack the capacity to support prosecutions in this crime. This article explores the utility of partnerships between local and international law enforcement agencies and NGOs to facilitate prosecution in the jurisdiction of the offence. Through a case study of Cambodia, the article argues that such partnership arrangements provide the resources and integration required to enable sexual offences against children, by foreign offenders, to be prosecuted. NGOs undertake complex strategies to address the immediate needs of exploited children, while seeking to maintain their capacity to influence government policy. The risks, challenges, and sustainability of such partnerships are discussed, along with wider implications for South‐east Asia.     

共同过失犯罪中的违反共同注意义务研究

传统刑法理论是否认共同过失犯罪的,理论研究的发展使刑法学界已不能回避共同过失犯罪的存在.明确违反共同注意义务在共同过失犯罪中的核心地位,准确划分违反共同注意义务的判断对象,正确认识违反共同注意义务的共同过失与竞合过失的区别,对纠正传统理论对共同过失犯罪的误解,建立和完善共同过失罪理论体系有重要的意义.     

美国环境犯罪严格刑事责任的演化与评析

为了确保食品、药物及环境等涉及公共福利领域的安全,美国法院发展并确立严格刑事责任制度,该制度包括公共福利犯罪原则和有责任的公司管理人员原则。确立环境严格刑事责任的目的是确保刑法在保护环境和促进环境法遵守方面的效率。公共福利犯罪原则和有责任的公司管理人员原则减轻了美国起诉部门的证明责任,降低了司法成本,同时提高了犯罪的成本,增强了刑法的威慑力。这体现了美国环境刑事政策的价值取向是社会利益保护优先和效率优先。     

医疗侵权损害赔偿的限制规则

因医疗侵权行为引起的损害赔偿问题,司法解释采取了以是否构成医疗事故为依据适用不同法律法规的制度,引起较大争议。作为一种侵权行为,医疗侵权造成患者损害的,应以全部赔偿为原则,辅之以过失相抵规则和衡平原则。对患者因医疗行为带来的损害,医疗机构原则上应全部予以赔偿;由于患者本身的原因与医疗过错共同作用造成损失的发生和扩大的,应适用过失相抵规则,适当减轻甚至免除医疗机构的赔偿责任;在精神损害赔偿方面,还应当考虑医疗机构的过错程度和偿付能力等因素,适用衡平原则。     

Sex effects and sentencing: An analysis of the statistical literature

The violent victimization of medical patients resulting from reckless or negligent physician care has traditionally remained beyond the reach of the criminal law. The professional nature of the doctor-patient relationship, as well as the existence of civil and peer-initiated sanctions, has insulated doctors from criminal prosecution. The purpose of our research is to examine whether this traditional immunity remains intact or has been breached. As a prelude to this analysis, we identify several factors which, when considered together, indicate physicians' increasing vulnerability to criminal prosecution. We present the results of a search conducted to identify cases involving the criminal prosecution of physician violence, and we examine the cases in terms of several characteristics that marked the prosecutions. Our results suggest that we may be witnessing the beginning of the use of the criminal sanction against physician violence.     

行政法规范之违反与过失实行行为之认定——基于新过失论的阐释

讨论行政法规范之违反与过失实行行为之认定的关系,对于我国过失犯罪,特别是业务过失犯罪的认定,有重大意义。对此,应当从不同的过失犯构造理论出发,做体系性思考。立足于行为无价值的新过失论,将过失实行行为定义为违反结果回避义务,不仅能合理限制过失不法的范围,理论立场上也更为首尾一贯;而且通过注意义务的类型化,更能贯彻刑法的自由保障功能和法益保护功能。在新过失论的框架下,行政法规范上的义务和刑法上的注意义务在范围、性质上均有不同,但也存在相同之处:前者的危险防止义务是以定型的危险为前提而课予一般人的义务,后者则是以个案事态为前提而课予(处于行为人地位的)一般人的义务。违反不以避免构成要件结果为指向的行政法规范上的义务,并不构成对刑法上注意义务的违反。而违反以避免构成要件结果为指向的行政法规范上的义务,如果该义务对于个案中的结果回避是必要的或不足的,则构成对刑法上注意义务的违反;如果该义务对于个案中的结果回避是不必要的、可替代的,或者会起消极作用,则不违反刑法上的注意义务。     

Medical Error and Patient Safety: Understanding Cultures in Conflict

Evidence documenting the high rate of medical errors to patients has taken a prominent place on the health care radar screen. The injuries and deaths associated with medical errors represent a major public health problem with significant economic costs and erosion of trust in the health care system. Between 44,000 and 98,000 deaths due to preventable medical errors are estimated to occur each year, making medical errors the eighth leading cause of death in the United States. However, the recent prominence of the issue of safety or error does not reflect a new phenomenon or sudden rift in the quality of health care (although it is a system fraying at the edges). Rather, the prominence of the issue reflects a radical change in the culture of health care, and in how relationships within the health care system are structured and perceived. In this paper, I discuss the multiple factors responsible for the change in the culture of health care. First, the culture has shifted from a clinician cantered system, in which decision making is one–sided, to a shared system of negotiated care between clinician and patient, and, often, between administrator or payer. Second, the nature of quality in health care has changed due to the geometric increase in the availability of technological and pharmaceutical enhancements to patient care. Third, the health care culture continues to rely on outdated models of conflict resolution. Finally, the regulatory structure of health system oversight was set in place when fee–for–service care governed physician–patient relationships and where few external technologies were available. In the current health care culture, that structure seems inadequate and diffuse, with multiple and overlapping federal and state regulatory structures that make implementation of patient safety systems difficult.     

Rethinking Criminal Libel: An Empirical Study

The prevailing view of criminal libel among communication law scholars in the United States is that there are very few prosecutions, that most of the prosecutions are about politics or public issues, and that none of the prosecutions are necessary because victims of defamation can sue for civil libel. The results of an empirical study of all Wisconsin criminal libel cases from 1991 through 2007, however, suggest that criminal libel is prosecuted far more often than realized, that most criminal libel prosecutions have nothing to do with political or public issues, and that the First Amendment is an effective shield on the rare occasions when a criminal libel prosecution is politically motivated. This article concludes that criminal libel can be a legitimate way for the law to deal with expressive deviance that harms the reputations of private figures in cases that have nothing to do with public issues.     

Networks of organised black market labour in the building trade

The building industry is a sector characterised by a large number of opportunities to commit economic crime. In Sweden, the level of tax avoidance in the building trade is estimated to be substantial, and the use of black market labour extensive. This article focuses on the organised use of black market labour in the building industry, which may be described as a form of both economic and organised crime. To date only a very small number of criminological studies have examined the use of black market labour in this sector of the economy. The article focuses on two of the central roles found in the context of organised, black market labour: the “fixer” and the “criminal entrepreneur”. The fixer is an individual with expertise in the methods of economic crime. The criminal entrepreneur acts first and foremost as a link between a client and the manpower required by this client. In this paper, fixers and criminal entrepreneurs are studied on the basis of data from the Swedish Register of Suspected Offenders. The analysis shows that the networks of fixers and criminal entrepreneurs overlap one another to some extent. There are nonetheless a number of differences between the two groups and also between their respective networks. The networks of the fixers are larger than those of the criminal entrepreneurs, and the individuals that comprise the fixers’ networks are suspected in connection with much larger numbers of offences. The fixers more often commit offences together with others and also have larger numbers of suspected co-offenders than the criminal entrepreneurs. On the other hand, the criminal entrepreneurs are suspected of having maintained their ties to suspected co-offenders for longer periods of time than the fixers. The fixers appear to specialise in fraud and forgery offences, whereas motoring offences, smuggling and drug offences are more common among the criminal entrepreneurs. The networks are highly male-dominated and on balance they are comprised of much older individuals than those of traditional offenders. Many of the fixers and criminal entrepreneurs are suspected of committing offences with the same co-offender for a long period of time. Further out in the networks, co-offenders are replaced more often. Tax offences are very common in both types of network, both in those parts of the network that are close to the fixers and criminal entrepreneurs, and also in more distant parts of the networks. In the more distant parts of the networks, there is also an increase in the proportion of offences that individual network members are suspected of committing. Judging from the material examined in the current study, violent offences do not appear to be very common among either fixers or criminal entrepreneurs. The networks examined are largely comprised of individuals suspected of economic offences. These individuals are linked together with one another by means of direct and indirect contacts that produce semi-legal networks of individuals with knowledge of organised black market labour.

Justice for victims of human trafficking in Australia? Issues associated with Australia’s criminal justice response to trafficking in persons

Australia has witnessed an increase in human trafficking cases in recent years, most of which have involved women trafficked for sexual exploitation. In response, and within the framework of the United Nations Protocol to Prevent and Suppress Trafficking in Persons, especially Women and Children, Australia has introduced legislation to combat human trafficking and punish traffickers. However, the number of prosecutions of human trafficking offences in Australia has, to date, been low. Drawing on the available literature, this article sets out to explore the reasons for this, which the paper argues have largely centered on Australia’s previously restrictive visa framework for trafficking victims. The paper also explores other obstacles and barriers to successful prosecutions, such as issues associated with discrediting and attacking vulnerable witnesses, and lengthy and complex trials. The paper argues that Australia needs to increase its efforts to meet the obligations set out by the United Nations Recommended Principles and Guidelines on Human Rights and Human Trafficking, and to balance its priorities regarding prosecution and victim protection.     

The Difference Law Makes: Domestic Atrocity Laws and Human Rights Prosecutions

This article offers the first systematic analysis of the effects of domestic atrocity laws on human rights prosecutions. Scholars have identified various political and sociological factors to explain the striking rise in human rights prosecutions over the past 30 years, yet the role of domestic criminal law in enabling such prosecutions has largely been unexamined. That is surprising given that international legal prohibitions against human rights atrocities are designed to be enforced by domestic courts applying domestic criminal law. We argue that domestic criminal laws against genocide and crimes against humanity facilitate human rights prosecutions in post‐authoritarian states by helping to overcome formal legal roadblocks to prosecution, such as retroactivity, amnesties, immunities, and statutes of limitations. Using original data on domestic atrocity laws and human rights prosecutions in new democracies, we find that atrocity laws increase the speed with which new democracies pursue prosecutions, as well as the overall numbers of trials they initiate and complete.     

医疗事故诉讼中过失认定

医疗事故属于医疗执业侵权。医疗执业侵权中医方的过失来自于其违反了法律要求的照护义务。美国的医疗执业侵权法从“医疗常规标准”已经发展出了“群体接受的标准”,以及在此基础上的过失认定原则。在程序上,美国的原告依赖于专家证人举证证明医方过错。我国的医疗事故诉讼的过失标准是“医疗常规标准”,存在着许多法律缺陷;程序没有专家证人制度,但实行单一举证责任倒置。事实上,过失的认定上交给了医疗事故技术鉴定,成为了医疗事故诉讼的核心。“医疗常规标准”和举证责任、医疗事故鉴定存在很多法律上的冲突。医疗事故鉴定和医疗事故诉讼间的关系,现有法律存有许多待讨论的问题;鉴定人的欠缺法律责任的规范。但现有达到专家辅助人和可能有的医学专家充当陪审员,很可能有助于解决我国医疗事故诉讼中的专业问题。     

The prosecution of bias crime in the Netherlands and the problem of net-widening: fundamental limits to criminal liability

Crimes that are committed with bias motives are categorised as ??hate?? or bias crimes and are punished more severely than nonbias crimes. However, bias crime laws are often applied to offences where there is no clear evidence of a bias motive. Based on the results of 318 case studies into bias crime prosecutions in the Netherlands, this paper demonstrates that the causes of net-widening should be sought in the action-oriented nature of criminal law reasoning. Decision makers rely on objective behavioural indicators to infer motives. However, these are rarely reliable. We argue that this process results in a transformation of bias crime laws. They are no longer used to punish harmful motives. Rather, they are used to combat behaviour that is considered socially harmful on account of its perceived intolerant, racist or xenophobic message. This forces us to reconsider the justification behind trying to punish motive.     

论英美刑法中的犯罪疏忽

一、犯罪疏忽的概念和特征(一 )犯罪疏忽 (CriminalNegligence)的含义英国法律委员会在其工作文件中对犯罪疏忽是做如下定义的 ,“如果某人没能象作为一个正常人在他的情况下那样 ,对其行为给予注意 ,发挥技能或者进行预见 ,那么 ,他就是疏忽的。”① 也就是说 ,疏忽是行为人有责任履行某种注意标准 ,但没能达到这种标准 ;以及 ,行为人没能像正常人或者谨慎的人那样 ,在法律要求实施合理行为的情况下合理地实施其行为。因此 ,“疏忽是关于行为标准的要求 ,含有疏于思考、而非心理状态的内容 ,很少成为严重刑事犯罪的要素。”②美国法学会在…     

共同过失犯罪浅析

在刑法解释论中,共同过失犯罪是指多个不负有共同注意义务的人分别实施了违反各自注意义务的行为,共同导致危害结果发生的犯罪形态。共同过失犯罪须由两个以上合格主体且不承担共同注意义务、各主体都实施了过失行为,多个过失行为共同造成了危害结果。对共同过失犯罪人的处罚,应坚持作为分成原则和监督对等原则,才符合我国"有罪必罚、罚当其罪"的刑事法治原则。