Actus Reus / Omissions Flashcards
What’s an omission
Failures to act
What’s the actus reaus
The ‘doing part’ of the offence - the defendant must have committed the act or omission voluntary. If the act is not done voluntarily, the defendant will not be guilty
Four types of crimes that depend on the actus reaus
Action crime - the AR is just an act
Result crime - where the defendants behaviour produces a result
State of affairs - someone belonging to an organisation or are in a place where they are not supposed to be - can be involuntary
Omissions
There is no general duty to act, unless the person is under legal duty. Sometimes the law imposes a duty to act.
What are the 6 circumstances in which there is a duty to act
Duty imposed by :
- statue
- contract
- public offence
- special relationship
- assumption of care of another
- creation of a dangerous situation
Duty imposed by statue
Cases of :
Lowe ( 1973 )
Mujuru ( 2007 )
Duty imposed by contract
If a person is contracted to act in a particular way and fails to do so, they will be held liable.
Cases :
Pitwood ( 1902 )
Duty imposed by public office
When a person hold a position in public office, there there is a duty to act in certain situations.
Case :
Dytham ( 1979 )
Where there is a special relationship between the parties
Relationships such as : parents, children, husband and wife - owe duties to each other.
Case :
Gibbins and Proctor ( 1918 )
Duty arising from the assumption of care of another
A duty is owed when someone voluntarily chooses to take care of another.
Case :
R v Stone and Dobinson ( 1977 )
Duty arsing from the creation of a dangerous situation
When someone crates a danger, they have the duty to minimise the danger as much as they can.
Case :
R v Miller ( 1983 )
Release from duty
1) There is no absolute rule that a patient’s life must be prolonged no matter what
2) Respect must be given for the patient’s wishes. If a person is of sound mind treatment can be withdrawn.
3) Where treatment is futile there is no obligation on the doctor to provide it.
4) Treatment can be provided in the absence of consent if the patient is incapable of providing it.
Arguments in favour of creating a general duty of care
The courts decide on a case by case basis if the relationship between the parties is sufficiently close to justifying criminal liability for a failure to act in order to protect a victim. Some academics have criticised this approach and argue that the moral basis of the law is undermined by a situation which allows people to ignore a drowning child they could have easily saved, consequently incurring no liability so long as they are strangers.
Imposing a general duty of care encourages a greater sense of moral responsibility. The law should reflect moral values so there should be a legal duty to act and not leave it to individual choice. It is wrong to stand by and let someone suffer and/or die.
Other countries like France have a ‘Good Samaritan’ law making people responsible for helping others in an emergency situation even where they are complete strangers. An example of this was when Princess Diana’s car crashed in Paris in 1997 and journalists following took photographs but it was alleged they did not try to help her. Although the French authorities investigated the allegation none were charged.
Arguments against creating a general duty of care
It is argued that a general duty of care is an imposition on our individual freedom of choice to act and that we should be free to choose whether to act or not. Our freedom should only be restricted as far as it is necessary to prevent people causing harm to others. But Clarkson argues that our individual freedom is frequently curtailed by opposing greater interests. He asks “which is the greater interest: one’s right to sit on a park bench minding one’s own business, or the right of a drowning child to life?”
There may be practical difficulties in implementing it. For example if there were a hundred people standing on a beach watching someone drown would all hundred be under an obligation to act? Would all be prosecuted and liable? How much help would need to be given, where would the duty end if the drowning person was dragged from the sea, would there be an obligation to do mouth-to-mouth resuscitation or drive the person to the nearest hospital. What if the person is not skilled to do this?
How much risk is the rescuer expected to take? What if the rescuer makes the situation worse? There is the possibility that a person may misjudge the situation and either fails to attempt a rescue thinking it was dangerous when it was in fact easy or attempts a dangerous rescue thinking it was easy. There may now be two victims. Would a person face potential liability for the victim’s death? And this could create difficulties later in establishing causation.
At what age would a general duty be imposed? Age 10, the age of criminal responsibility? Would someone with a disability be exempt? Or pregnant women?
It may be unfair where some individuals are not competent or intelligent enough to be capable of carrying out the duty as in Stone and Dobinson (1977) Clarkson argues that many of the objections to creating a general duty of care can be overcome by limiting the duty on a rescuer to do what is reasonable in the circumstances
Reforms
The draft Offences against the Persons Bill 1998 proposed creating an offence of assault by omission.
