Actus Reus, automatism, omissions, duty of care. Flashcards
If D omitted to act can it be said that an omission to act caused the outcome?
Every crime must have an Actus Reus element, so it stands to reason that D must have committed an Actus Reus of a crime. There is no thought crime:
Case: Crown V Deller
D induced V to buy his car. D said he car was free from encumbrances (his to sell). Previously D has tried to mortgage the car to a finance company. Paperwork void. Unbeknown to D was his to sell, convicted with fraudulently obtaining money via false pretences, appealed–> Quashed conviction.
What is the Actus Reus?
The Actus Reus is the acting element of the offence, the conduct. It states what the person did. It also tells us what the person failed to do, in what circumstances and with what consequences
Usually the Actus Reus boils down to two things, what are they? And What is Automatism?
Usually the Actus Reus must be both: voluntary and Positive. There however may be instances where D is acting positively but isn’t voluntary. E.g D holding a knife to V, C comes along and plunges the knife into V. Positive but not voluntary on D’s behalf. D has not committed the actus Reus here, and may not be convicted when there is an automaton at play.
Hill V Baxter (civil case)-Lord Justice Chief Goddard- D is driving a car (in control) swarm of bees attack him (causing him to loose control) and kill someone. If D may prove that the Bees caused a spasm or reflex (involuntary reaction) then this is an example of automatism. It did not flow from an exercise of F/W.
What is a automaton?
Someone who may provide a positive act, when in a state of disassociation.
It may b possible that an act is both positive and voluntary, however is an accident. Please provide an example.
Attorney general reference No.4 of 2000. D was a bus driver who intended on hitting the break pedal but instead hit the accelerator pedal causing him to hit V killing V. D was charged with death by dangerous driving an offence which has no Mens Rea element. The fact it was an accident means nothing the act was positive and voluntary. The requirement for both a positive and voluntary act has been diluted, it is not necessary in dangerous driving charges. See State of Affairs cases.
Please provide 3 examples of state of affairs Cases to portray an involuntary but positive act.
Larsonneur-D who had originally been in the UK and was travelling to Ireland. She travelled to Ireland because she was banned from being in the UK. Against her will she was transported back to the UK, and into the custody of the police. She was subsequently charged with the Aliens Order Act 1920 for being in the UK without permission. She did not voluntarily come back which would mean it was positive but involuntary.
Winzar-D (winzar) taken to hospital on a stretcher but was found to be too drunk and was asked to leave. Later found slumped in a hospital chair. The police were called, they simply came picked him up took him to a police car stationed on the highway and charged him with being found drunk on a highway. The act of being lifted and taken to the car was not willed by D. Both these cases have been heavily critiqued by academics due to the police procuring them.
Limchink (this was a privy council decision)-The offence of remaining in Singapore, when applied to someone who had been prohibited from entering that area. That offence couldn’t be committed when someone is ignorant of the prohibition. Commentators said that it set out a general principle that the Actus Reus must be voluntary.
Give a statutory example of when a positive act is not necessary?
Also can you be liable for an omission in the uk?
An offence under s5(2) in the misuse of drugs act 1971 states it is an offence by D to have a controlled drug in his/her possession. If the police catch you with that substance on you, it is enough for the Actus Reus. There is no explicit requirement for a positive act.
Generally in the UK you may only be liable for positive voluntary actions you are not liable for omissions (EXCEPTIONS: contractually, Duty Of Care, Assumed Duty of Care, statutory, duties of law enforcement, ownership or control of property, continuing act, creation of a dangerous situation) e.g. If you see a person in need you do not need to help them (unlike France bad Samaritan laws which state you must use reasonable means to rescue).
Problems with this is: what is reasonable? What if it’s inconvenient? Or endangers you? Infringes upon your autonomy?
When might you be liable for an omission? Please provide cases for every point.
Statutory duty-S6 RTA
Contractual duty-PITTWOOD
Duty of care-Gibbens v Proctor, DVA, Emery, sheppard.
Assumed duty of care-Hood,Stone+Dobinson, Lane LJ? Prof Hogan?, smith [1979]
A continuing act duty-FAGEN.
Creation of a dangerous situation miller
STATUTORY DUTY- S6 of the road traffic act 1988 the driver who fails to provide a sample of breath without lawful excuse is committing a criminal offence via omission.
CONTRACTUALLY- you may have a contractual duty to act.
Case of PITTWOOD- D an employed gate keeper on a railway line; he opened the gate to let a cart through. He left for lunch forgetting to shut the gate. 10minutes later a hay cart came along an de as struck by a train–> D convicted of manslaughter. D attempted to argue he only had a duty of care to his employer, the court disagreed and said because of his job he had a duty of care to the public. Here D omitted to shutting the gate.
DUTY OF CARE-automatically arising-Parent to child under the age of 16. Case Gibbens v Proctor-if a parent fails to feed heir child and the child dies because of it that parent is liable. This duty is now found in the Domestic Violence Act 2004-causing or allowing the death of a child.
Case of EMERY-Allowing another person to harm your child.
Case of SHEPPARD- Held that once your kids reach the age of legal majority, your automatic duty ends like theirs did to their 18year old daughter.
ASSUMED DUTY OF CARE-If you expressly or implied assumed duty of care towards someone you may be liable for an omission to act. Most of these cases arise in the course as homicide.
Case of HOOD-D was convicted of GNM for failing to call medical assistance three weeks after his wife fell and injured herself. Therefore, it is generally assumed that spouses/Civil partners/Long term partners owe an assumed duty of care to each other. This may even be an implied duty. It is also generally thought that a child owes a duty to their elderly parent (however yet to be tested in law).
It must be noted that you do not owe a duty of care to step sisters nor blood relatives’ neither assumed or implied.
Today there would be no need for the courts to identify a blood relationship between D and P, the key to whether or not a common law duty can be imposedis the issue of reliance.
Case of Stone And Dobinson-stone (aged 67)partially deaf, nearly blind and of low intelligence. He cohabited with Dobinson (aged-43)
Whom was described as Ineffectual and Inadequate. Stones sister came to visits who suffered from Anarexia Nervosa she confined herself to her room mostly. The two were incapable of using telephones to contact a dr, as was the neighbour unsuccessful. She gradually grew weaker and later died in Poor conditions. Stone and Dobinson argued she was a lodger to the house. They were charged with manslaughter on the basis of their assumed and implied duty of care by taking her in. The fact that they could not attain what a reasonable person could do is irrelevant, it is OBJECTIVE! Furthermore, Dobinsons attempts to wash her show an assumed duty of care.
Geoffrey Lane LJ commented: Dobinson undertook a duty of trying to wash her. They made efforts to take care of her.
Professor Hogan commented: what is disturbing about stone is that the evidence hardly supported the inference that these two elderly incompetents had taken it upon themselves to discharge the onerous task of looking after the sister.
Case of Smith [1979]-mrs smith was suspicious of Dr’s and requested her husband did not call for medical assistance after she had given birth to a still born. Her situation worsened, she later died. He was charged with manslaughter however was acquitted due to the wife being able to engage in a rational decision making.
The criminal law is reaction rather than dynamic according to Mike Molan.
A continuing Act Duty-case of FAGEN- Actus Reus of D was to omit to move the car, d didn’t owe V a duty of care, so the court needed to make one. It was said D’s positive voluntary act of driving onto the foot, was an act which continued until he moved the car off. D had the actus Reus all along and it later affected his Mens Rea when he refused to remove the car from V’s foot. Ergo you have the complete offence.
Creation of a dangerous situation miller-next card
Please state the origin of the creation of a dangerous situation and the case it was derived from.
The Case of Miller
D was squatting in a house and fell asleep on a mattress with a lit cigarette in his mouth. The cigarette fell out his mouth onto the mattress and set It ablaze. On waking up and seeing the fire he just moved room and went back to sleep. The house burned down but miller survive he was charged with arson. D performed the Actus Reus first lighting the mattress. However, the Mens rea only took affect when he decided to move room and sleep again. Dropping the cigarette and moving room was a continuing act. CA used this logic to explain his conviction.
HOL-didn’t like this they preferred the creation of a dangerous situation. By dropping the cigarette on to the mattress D had created a dangerous situation, he then had a duty to correct it, the courts preferred this duty.
Case of Santanar Bermudiz- D a intravenous Drug user was approached by a Police officer. The police officer wanted to stop and search D. v asked if d had any sharps on him he replied no, he Infact at a syringe in his pocket. V put her hands into D’s pockets and was stabbed by the needle. D was prosecuted under an offence against the person, for cresting a dangerous situation, which he had omitted to correct. He was prosecuted for battery.
Case of Evans (2009)-D gave heroine to her step sister knowing she was a recovering drug addict. V took the the heroine and slipped into a coma, eventually dying. D doesn’t call emergency services but rather just watches V die. D is charged with GNM on a basis of an omission to act. We know siblings do not owe each other duties of care (smith). However, in Evans the duty stems from an extension of the miller principle. The creation of a dangerous situation doctrine.
Problem: V creates the dangerous situation via self injecting.
Result: They said D was liable for the creation of a dangerous situation because they contribute to the act. In Evans D only contributes by providing the drugs, so a police decision was made to extend it but obviously his is controversial, because is a drug dealer liable for someone ODing somewhere down the line?
Result: No set guidance, it is merely what the OBJECTIVE reasonable person would do.
Case of Jenkins- V stood on a plug and cut his foot, it later became gangrenous. D advised V to see a doctor, v believed in an alternative form of medicine and refused. It was said that V had no mental impairment and therefore could not be forced in medical treatment. Difference between this and dobinson.
Distinguishing between and act and an omission.
Three cases what are they?
Andrew Ashworth argues that there are some clear cases of omission and cases of act, there are many ambiguous cases in which he act-omission distinction shouldn’t be used as a cloak for avoiding the moral issues. E.g speck.
Case of Speck-V was a child who innocently placed her hand onto D’s genital area (D was wearing trousers). D failed to remove the child’s hand, D acquired an erection and remained inactive. D was charged with an act of gross indecency. D omitted to stop the hand. They said the inactivity, was an invitation to the child to carry on doing the act. This constituted sufficient activity.
Case of B 1999-D a gay man was friendly with V’s family (V a 13 year old boy). V confides in D about homosexual tendency which he thinks he has. Innocently the two end up sharing a bed, In the middle of the night D feels V’s erect penis on his back. He instantly tells V to cut it out. D is charged with an act of indecency. D omitted to stop V’s act. However, the court in B said there was no period of inactivity, where D might have been said to be inviting V to continue, his words cut it out constituted discouragement instantly.
Doctors cannot force treatment onto patients, however they must also act in the patients best interests. So in bland demonstrates this does not have everything must be done to prolong life.
Sometimes it’s in the patients best interests to not receive treatment. However, Gilbert Meilaender argues that providing food and drink to each other is but a category of care, one we owe to each other and because food and drink is not of itself curative, to withdraw it is to withdraw the very basis of life.
Case of Bland- Tony bland as involved in the hillsborough disaster of 1989 which left him in a state of PVS for 3 1/2 years. Medical oppiniojw as that he wouldn’t improve. Drs with support of family sought a declaration from the courts; permitting the discontinuation of sustaining treatment (prevent prosecution of Doctors for murder). courts undecided whether it’s an act or an omission. Acting in the patients best interests, the HoL said discontinuation of treatment would be an Omission, a passive act. They contrasted it with active euthanasia via lethal injection which is obviously a act. They were simply switching the machine off, they said it was a passive act. Lord Goff said we are putting him back into the state he arrive at the hospital in. It is a policy decision because if a interloper (3rd party) came in and switched it off it would be an act.
