Paphos hotel death: the question of punishment and grief

The trial of the British father who pleaded guilty of causing the death of his three-year-old boy who fell from a hotel window in Paphos last July will learn his sentence on October 16.

The maximum sentence is four years’ imprisonment. But the maximum is rarely imposed except in cases of causing death by sustained inherently dangerous conduct.

English law has an offence of causing the death of a child by exposing it to significant risk of death or serious injury or gross negligence manslaughter, but there is no general criminal offence of causing death in which the fault element is “rash, thoughtless or dangerous” conduct falling short of gross negligence. 

Traditional criminal responsibility for killing another person is obvious to most people. Killing another person intentionally is the universal crime of murder. Killing by gross negligence is the crime of manslaughter in most countries; but accidental killing is not a crime at all. However sometimes accidents occur owing to momentary inattention, thoughtlessness or dangerous conduct that is criminal in some countries but not in others. 

The British father’s case may or may not have been prosecuted if the accident took place in England. It would have depended if the prosecution could prove his conduct involved a significant risk of serious harm or gross negligence. From the agreed facts in the public domain, however, it looks as though he placed his little boy on a windowsill on the fourth floor of his hotel and failed to notice that the window was partially open causing the little boy to fall to his death. Or, put another way, it was dangerous to place his little boy on the windowsill without ensuring the window was closed.

While the facts were agreed, it was not clear from the way the case was reported if there was an agreed basis of plea whereby the prosecution and defence agree before the accused pleads guilty, the version of the facts on which he would be sentenced and on which he accepts criminal responsibility to the court and to himself.

As is well known, not every criminal offence has to be prosecuted but the RoC attorney-general decided to proceed with this prosecution in the public interest – presumably because it involved the death of a child to whom the state owes a special duty to protect and be seen to protect.

On the other hand the father’s conduct was completely different to the wanton and dangerous dangling by the singer Michael Jackson of a small baby over the balcony railings on the fourth floor of his hotel room in Berlin – a photo of which shocked the world in 1995.

The prosecution and punishment of a parent for causing the death of his child is as much part of human rights law concerned with the protection of the right to life, as the protection of a father from cruel and excessive punishment compounded by deep and prolonged grief and pain and suffering for having caused the death of his own child – itself a life sentence of sorts. 

The relevant sentencing case law in Cyprus appears to be based mostly on road traffic deaths prosecuted as “rash thoughtless or dangerous” driving. The case law differentiates between momentary lapses of care that do not attract immediate imprisonment and sustained dangerous driving that deserve an immediate sentence of imprisonment within the four-year maximum.

Although in principle the approach to culpability is likely to be similar in the father’s case, the inconsolable pain and suffering of a father who causes the death of his own child requires special attention – a guilty conscience is a well-known affliction that Dostoyevsky thought of as a form of punishment in his novel Crime and Punishment.

The pain and suffering and prolonged grief for causing the death of one’s own child is personal mitigation capable of converting an immediate custodial into a suspended sentence whether or not it is regarded as punishment.

The most relevant road traffic case in Cyprus in which the accused suffered “pain, deep grief and serious disturbance” was that of a young man who caused the death of an eight-year-old girl. He was inconsolable! So much so, the appeal court refused to disturb a sentence of two months’ imprisonment even though it regarded the sentence as lenient.   

In England causing death by dangerous driving is a distinct offence that even in cases of medium culpability can result in many years imprisonment. In Cyprus causing death by dangerous driving where the driving is grossly negligent is prosecuted as manslaughter or its equivalent homicide offence.

The Cypriot court in Paphos is not my forum, and it is a bold barrister who pronounces on the likely sentence of a criminal court that is not his forum. The Cypriot character, however, is my forte and although people from Paphos are notoriously not innocent, they have a big heart and a generous spirit and I would be surprised if the father’s pain and suffering at the loss of his son is lost on of the Cypriot psyche of the judges.

Mixing Shakespeare’s most famous metaphor: what manner of punishment to inflict on a grieving inconsolable father from the “outrageous fortune” that befell him and his family last July? “That is the question” for the Paphos court.