用英国法律解读货拉拉案件

因为对货拉拉这件案子一直有关注,再加上刚过了criminal law,正处于自我感觉比较良好(aka半桶水叮当响)的时期,我想试着用英国法分析以及对可能的判决做个预判。

因为确实是个半桶水,不足之处请大家包容赐教。且因个人能力有限,分析会使用英文。

长沙市高新区公安分局于2021年3月3日给出的案情总结:

一、接处警经过及当事人情况

2月6日21时30分,长沙市高新区公 安分局接报警称,麓谷街道曲苑路有人 跳车,头部受伤。分局立即派民警赶赴 现场处置。120急救车及时将伤者送往医 院救治。民警将涉案车辆司机周某春带 至公安机关接受调查,并对现场及车辆 进行勘查。2月9日15时,由高新区综治 局组织,高新区公安分局向伤者家属通 报了隋况。2月10日10时55分,伤者经抢 救无效死亡。 受害人车某某,女,23岁,身高150 厘米,体重43. 5公斤,岳阳临湘人,生 前系长沙市某公司员工。 犯罪嫌疑人周某春,男,38岁,长 沙市岳麓区人,2019年9月注册为货拉拉 公司网约车司机,驾驶车辆为白色瑞驰 电动面包车(车辆里程数19730公里,车 况良好)。

二、现场勘查和受害人伤情诊断、 遗体检验情况

中心现场位于曲苑路的林语路口至 桐梓坡路口的中间位置,东侧为厂区, 西侧为物流园。该路段路宽10米,路西 侧有路灯,当时隔一亮一,光线昏暗, 人车流稀少。 中心现场柏油路上停有一合白色厢 式面包车,车头朝南,车尾朝北,双闪 灯状态,主副驾驶车门及车窗完好。在 车尾西侧(副驾驶侧)的路边有一处血 泊,血泊北侧有两条线状血迹、方向朝南,地面无明显刹车痕迹及其他异常情 况。 该厢式面包车前部为主副驾驶室, 后部为货厢。车内未发现打斗痕迹。驾 驶室内空高136厘米,副驾驶室地板距车 窗框最下沿72厘米,副驾驶室车窗上宽 35厘米、下宽64厘米、高度45厘米。 据2月6日医院诊断报告,当时伤者 右侧额颖顶部硬膜下血肿,左侧颖枕部混合型血肿,广泛蛛网膜下腔出血,右侧额叶脑挫伤,脑肿胀,脑干受压,左侧颗、枕骨及蝶骨骨折,颅内积气,蝶 窦及左侧乳突积液。受害人死亡后经法 医学检验,衣裤未发现撕扯破解开线痕迹,体表未发现搏斗抵抗伤,衣裤、指甲均未检验出周某春基因型。受害人符合头部与地面碰撞致重度颅脑损伤死亡。

三、视频侦查和侦查实验情况

专案组沿涉案车辆案发前的行经路 线全方位开展视频侦查,调取368个监控 探头的视频资料,还原了2月6日晚涉案 车辆接单后的运行过程,未发现车辆大幅度摇摆、频繁变道等行驶轨迹异常情况。同时,专案组回看视频发现,涉案车辆行驶时,副驾驶室车窗玻璃一直为半开状态,车内情况无法看清。 针对偏航问题,根据犯罪嫌疑人周 某春供述,专案组多次实验发现,货拉拉APP导航路线总里程11公里,红绿灯15 个,驾车需用时约21分钟;偏航路线总 里程11.5公里,红绿灯11个,可节省4分 钟左右为还原车某某坠车过程,专案组以 与受害人车某某个体特征相近人员为实验对象,从同型号面包车副驾驶室进行 模拟坠车实验得出:若实验对象起身将 上半身探出车窗外,可以导致从车窗坠车的结果。

四、案件经过还原

由于涉案车辆内未安装音视频监控 设备现场附近靠涉案车辆副驾驶室一 侧无视频监控,且当晚过往人车稀少 调查取证工作难度大。为查明事实,专 案组认真开展现场勘查、侦查实验、法医检验、视频侦查、电子物证勘验、嫌疑人审讯、调查走访、聘请专家对当事人进行心理分析等工作,还原了案件经过。2月6日15时许,周某春通过手机APP 货拉拉平台接到车某某的搬家订单,区间为岳麓区天一美庭小区至步步高梅溪湖国际公寓,总费用51元,其中车某某支付30元,平台补贴12元。当日20时38 分,周某春驾车抵达天一美庭小区并与 车某某取得联系。两人见面后,周某春 询问车某某是否需要付费搬运服务,被车某某拒绝。车某某先后15次从1楼夹层 将衣物、被褥等生活用品以及宠物狗搬至车上,期间,周某春多次催促车某某 快点搬东西上车出发,并告知车某某, 按照货拉拉平台规定,司机等待时间超过40分钟将额外收取费用,车某某未予理会。21时14分,周某春驾驶车辆出发前往目的地,车某某坐副驾驶位,周某春又问车某某到达目的地后需不需要卸车搬运服务,再次遭到车某某的拒绝。在行驶过程中,周某春为节省时间并提前通过货拉拉APP抢接下一单业务,更改了行车路线。21时29分许,车辆行至林语 路佳园路口时,车某某两次提出车辆偏航,周某春起先未搭理,后用恶劣口气表露对车某某不满;车辆行至林语路曲苑路口时,车某某又两次提出车辆偏航, 并要求停车,周某春未予理睬。发现车某某起身离开座椅并将身体探出车窗外后,周某春未采取语言和行动制止,也没有紧急停车,仅轻点刹车减速并打开车辆双闪灯。车某某从车窗坠车后,周某春停车查看,发现车某某躺在地上,头部出血。21时30分34秒,周某春拨打120急救电话,21时34分16秒拨打救护车电 话,21时39分,在救护车司机的提醒下拨打110报警 2月23日,公安机关以涉嫌过失致人死亡罪对周某春刑事拘留;3月3日,检察机关批准逮捕。

我的分析

Murder?

For the Driver(D) to be convicted for Murder, the prosecution needs to prove actus reus and mens rea beyond reasonable doubt. This means that the evidence and the argument presented by the prosecution must be so clear and convincing that any reasonable person would not have any doubt.

Actus reus: the event of unlawful killing must be established. To prove this event, three elements must be proved: (1)Unlawful killing (2) of a human being (3) under the Queens Peace.

Obviously, the victim(Che) is a human being so (2) is satisfied. And we assume, for the argument to be established, that the case happened under the UK legislation so that (3) also is satisfied. We need to mainly focus on (1).

The cause of death is severe brain trauma, which is directly caused by falling off the car. (R v Malcherek)

D's act must be a substantial cause of the victim's death. There are two parts in proving D's conducted unlawful killing: legal causation and factual causation.

Factual causation: but for D's conduct, would the victim's death have occurred in the way that it did? (R v White) Can we cay, without doubt, that but for D's multiple detours, driving in the dark roads and threatening attitude, the victim wouldn't have died the way she did? In my judgement, the answer is yes.

However, legal causation is only the first hurdle and is normally easily met. We should also examine the legal causation.

Legal causation: for the legal causation to be established, there must be no event intervening between D's actions and the end result unless the event is foreseeable. In this case, there is an intervening event- Che falling out of the car. To prove that this intervening event is foreseeable, the prosecution must convince the court that a reasonable person would also jump out of the car in the same situation.

Mens Rea: mens rea for murder means the defendant has either an intention to kill or an intention to cause grievous bodily harm (R v Moloney).

This is a completely subjective test. It could be direct intent (D desired the result to happen) or indirect intent (D foresaw the consequence as virtually certain). In the investigation, the police found that D's intent was only to take a shortcut and receive another order, which eliminate the mens rea for murder. However, I believe further investigation is still needed to determine whether D intended to kill or cause grievous bodily harm to Che when he refused to stop the car, expressed his dissatisfaction using strong language, saw the victim reaching her body outside the car yet still kept driving forward.

Summary: It seems that proving D has committed murder is challenging unless further investigation is carried out and new evidence shows that D has at least expected Che to fall out of the car.

(Voluntary manslaughter can only need to be used as defence for murder hence we will not discuss it here.)

Constructive Manslaughter?

Constructive manslaughter is used when the defendant (1) does an unlawful act (2) which is dangerous (3) which causes the victims death.

This means that first and foremost, the defendant must have committed a crime that requires proof of intention or recklessness. Such unlawful act could be, for example, criminal damage, burglary, theft, sexual assault or kidnapping. From the police report, it does not seem like there are any indications of such crime(s). However, I do think further investigation is needed to determine D's intention as mentioned above.

Once (1) is established, (2) and (3) will follow suit.

Summary: same as murder, it is hard to convict D for constructive manslaughter unless further evidence is shown.

Manslaughter by Gross Negligence

Actus reus: to convict D for manslaughter by gross negligence, the prosecution only needs to show actus reus as negligence does not have a mens rea.

Maslaugher by Gross Negligence can be established if all of the following 5 elements are present (Adomako):

We can apply the normal negligence test in this situation. As the service provider, D, has a duty to his client, Che, to safely drive her and her luggage to her new apartment. Also, as a driver, D, also owes a duty of care to his passenger. By taking detours without communicating, using strong words to cause panic to Che and refusing to let her out of the car, D has breached his duty as a service provider. Also, when D noticed Che reaching her body outside the car window, he did not stop her, nor did he stop the car. This has fallen far below the standard of care that a driver should provide to his passenger. Provided that the police obtained the evidence while investigating, the failure to act caused the death of Che.

Therefore, it is very possible that the jury would reach a conclusion that D is guilty of manslaughter by gross negligence.

Road Traffic Act 1988

Under s2B RTA 1988, a person who causes the death of another person by driving a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, is guilty of an offence.

As stated above in negligence, the drive was indeed done without the consideration for his passenger's safety. He is very likely guilty under s2B RTA 1988.

Who else is responsible? Corporate Manslaughter

Under s1(1) Corporate Homicide Act 2007...

Who am I kidding? This part is of no use and we know why. In fact, the entire article is probably useless. Because law is always the last resort when shit happens.

When people have to use law, the damage is, most of the time, already done. This tragedy cost a young innocent women's life and again traumatised half of the population of China.

But who cares?