Actus Reus - Omissions Flashcards
1
Q
What does subjective mean?
A
What was D thinking when committed the act? What did they intend/believe? Were they aware of potential risks and what was attitude towards those risks?
2
Q
What does objective mean?
A
What would the reasonable person in D’s situation have known or foreseen?
3
Q
2 requirements for acts reus
A
- Actus reus must be PROVED
- R v Deller
- The conduct must be VOLUNTARY
- Bratty v AG for Northern Ireland
4
Q
What is an omission?
A
Failure to act
5
Q
Cases for distinguishing acts from omissions (3)
A
- Fagan
o Knowing that the wheel was on the officer’s foot, the appellant remained seated in car, switched off ignition, maintained wheel of car on the foot – these were positive acts not mere omissions - Airedale NHS Trust v Bland
o Doctors cannot bring about positive act to bring death to a patient
o By omitting to feed the patient to cause the death, it is not a positive act but rather a mere omission - Speck
o Gentleman failed to remove child’s hand from his front area – there was an act that amounted to invitation to the child to continue to touch him
6
Q
Can we impose liability for omissions? (1)
A
- Miller
o Unless a statute specifically so provides, or the common law imposes a duty … a mere omission to act cannot lead to criminal liability
7
Q
What crimes can be committed by omission? (2)
A
- R v Gibbins and Proctor
o Murder and manslaughter, Wounding and causing GBH with intent (s18 and s20) can be committed by omission - Fagan
o Assault, battery, Assault occasioning actual bodily harm require a positive act
8
Q
Common Law Duty to Act - Special relationship (5)
A
- R v Smith
o Husband must balance wife’s autonomy over medical treatment will her capacity to make a rational choice – if not able to make rational choice, husband has duty of care to act - R v Hood
o Husband had to weigh up wife’s autonomy over medical treatment with capacity to make the decision – husband guilty of negligence as failed to act to ensure wife got medical treatment - Gibbins and Proctor
o Failed to act to prevent serious death due to neglect by partner of starved child - Sheppard
o Once child is over 18 or emancipated, there is no parental duty - Chattaway
o If adult child remains vulnerable a parental duty may continue to exist
9
Q
Common law duty to act - assumption of responsibility (5)
A
- R v Instan
o Niece assumes responsibility for her aunt by moving in with her – this imposed duty to care for aunt and failed to do so - aunt died - Gibbins and Proctor
o Assumed responsibility for partner’s child – was a moral obligation which imposes a legal duty to care for child - Stone and Dobinson
o Although Stone was partially deaf with low intelligence and Dobinson was unaffectionate, they allowed sister with anorexia to move in with them – by allowing her to move in the assumed a duty of care for her so guilty of manslaughter when she died - R v Sinclair, Johnson
o Victim becomes unwell after taking meth. Johnson not guilty of manslaughter as did not know the victim so had no duty of care. Sinclair was victims close friend – he administered the meth, stayed with victim the whole time and so did owe a duty of care - Ruffell
o Victim and Ruffell both take drugs. Victim was guest in appellant’s family home, he was a friend, Ruffell had taken it upon him to try to revive the victim – therefore was established there had been a duty of care
10
Q
Common law duty to act - duty imposed by contract or official duty (2)
A
- R v Pittwood
o Hired by railway company to close gate when train passes, fails to close gate and someone hit by train. Was hired to prevent the harm and was only person with this responsibility – he had a duty to act and failure meant he was liable - R v Dytham
o Victim evicted from pub and was set upon by bouncers and beaten to death. Policeman witnessed this but never intervened as about to clock off. Failure to perform duty resulted in misconduct
11
Q
Common law duty to act - where D has created a dangerous situation (2)
A
- R v Miller
o Homeless man in empty house lights cigarette and falls asleep. House sets on fire. Failed to take measures to prevent the dangerous situation he was in and failed to counteract the risk so was guilty - R v Evans
o When a person has created or contributed to the creation of a state of affairs, which he knows, or ought reasonably to know, has become life-threatening, a consequent duty on him to act by taking reasonable steps to save the other’s life will normally arise
12
Q
What is required if there is a duty to act? (3)
A
- Stone and Dobinson
o D must do what is reasonable - French Penal Code
o Possible reform – in France there is a general duty of assistance even to strangers, D must be capable of giving assistance and not expected to put their own life in danger to do so - Australia Duty of Easy rescue
o Possible reform - An offence if any person able to provide rescue, medical treatment etc to any person, callously fails to do so
13
Q
Critical Commentary for acts reus omissions (2)
A
- Ashworth
o There is no moral difference between a positive act and an omission where a duty is established
o The law should move towards social responsibility – recognise certain duties of citizenship and acknowledge the limits on what is fair to ask of citizens
o The general offences of omissions should be child neglect and two new offences: failing to take steps to assist someone in sudden peril and failing to take steps towards law enforcement
o There is a need to develop a broader and more coherent approach to omissions, which takes proper account od the wider social and moral issues - Williams
o The criminal liability of omitters should not be made more stringent that the criminal liability of doers – it would be a retrogressive change
o There is a moral difference between a positive act and an omission – disagrees with Ashworth
