Actus Reus - Omissions (Cases) Flashcards
DPP v Santana-Bermudez (2003)
D injured a woman police officer by allowing her to search him, knowing he had hypodermic needles in his pockets which stabbed her. D denied having any needles or sharps when asked. D was convicted by the Magistrates, but acquitted at Crown Court. On appeal by way of case stated from the Crown Court, prosecutor’s appeal was allowed.
Principle – here someone created a danger and thereby exposed another to a reasonably foreseeable risk of injury, there was an evidential basis for the actus reus of an assault occasioning actual bodily harm. D had “created a danger by an act … that act was a continuing act”. The risk of injury was foreseeable.
Not Guilty but would be now
R v Gibbins & Proctor [1918] 13 Crim App Rep 184
D and his common law wife failed to feed the man’s 7 year-old child, Nelly, and she died from starvation. The woman hated Nelly, and was clearly the moving force.
Principle – Where there is the duty to act, failure to do so can lead to liability even for murder if the necessary mens rea is present. The woman was held to be liable because, while the child was not hers, she was living with the man and had accepted his money for food. The courts regarded the parent’s duty towards a young child as so self-evident as not to require analysis or authority.
R v Stone & Dobinson [1977] 1 QB 354
Ted Stone was 67, totally blind, partially deaf had no appreciable sense of smell and was of low intelligence. He lived with his housekeeper and mistress of 8 years, Gwendolyn Dobinson aged 43 who was described as ineffectual and inadequate. Ted’s sister Fanny came to live with them. She had previously lived with another sister but had fallen out with her. She had mental problems and was suffering from anorexia nervosa. Ted and Gwendolyn took her in and agreed to look after her. However, Fanny’s condition deteriorated and she was found dead in her bed in appalling conditions.
Principle – Stone and Dobinson were found liable for her death as they had assumed a responsibility to her by taking her in. They failed to look after her and ensure she got the medical help she needed.
R v Pittwood [1902] TLR 37
The defendant was employed by a railway company to man the gate at a level crossing. The defendant lifted the gate to allow a cart to pass and then went off to lunch failing to put it back down. A train later collided with a horse and cart killing the train driver.
Principle – The defendant was liable for the death of the train driver as it was his contractual duty to close the gate.
R v Dytham [1979] QB 722
The defendant was a police officer. He stood by whilst a bouncer kicked a man to death. He was charged with the offence of misconduct in a public officer. He argued that the offence could not be committed by an omission as it specifically requires misconduct.
Principle – The offence of misconduct in a public offence can be committed by an omission. The defendant’s conviction was upheld.
R v Naughton (2001) Unreported
An off-duty police officer from Birmingham, did not intervene when one of his friends attacked a restaurant owner.
Principle – He was convicted of misconduct in a public office. He resigned from the police force without a pension, and was ordered to do 200 hours’ community punishment.
R v Miller [1983] 2 AC 161 House of Lords
The defendant had been out drinking for the evening. He went back to the house he had been staying in and fell asleep on a mattress with a lighted cigarette in his hand. He awoke and saw that the cigarette had started a small fire. Upon seeing the fire, he then got up and went to another room and went back to sleep. At his trial, the prosecution did not rely on the acts of the defendant in falling asleep with a lighted cigarette as being reckless, but relied solely on the grounds that upon becoming aware of the fire he failed to take steps to put the fire out or call the fire brigade.
Principle – The defendant had created a dangerous situation and owed a duty to call the fire brigade upon becoming aware of the fire. He was therefore liable for his omission to do so.
DPP v Santana Bermudez (2003) UKHL 6
D injured a woman police officer by allowing her to search him, knowing he had hypodermic needles in his pockets which stabbed her. D denied having any needles or sharps when asked. D was convicted by the Magistrates, but acquitted at Crown Court. On appeal by way of case stated from the Crown Court, prosecutor’s appeal was allowed.
Principle – Here someone created a danger and thereby exposed another to a reasonably foreseeable risk of injury, there was an evidential basis for the actus reus of an assault occasioning actual bodily harm. D had “created a danger by an act … that act was a continuing act”. The risk of injury was foreseeable.
R v Evans (Gemma) [2009] EWCA Crim 650
Facts
Evans purchased heroin and gave it to her half-sister who later self-ingested the drug. Evans recognised that the victim had symptoms akin to those of an overdose and remained with her mother and the victim, without calling for medical assistance as they feared getting into trouble. They checked on the victim at intervals throughout the evening and when they awoke the following morning the victim was dead. The cause of death was poisoning from heroin. The primary dispute in the first instance was whether the supply of drugs to her half-sister had created a duty of care between Evans and her half-sister. The jury agreed that there was a duty owed and Evans was convicted. Evans subsequently appealed.
Issues
Evans submitted that the judge had erred in his instruction to the jury regarding duty of care in the circumstances and that it was inconsistent with previous authority to do so. Further, she argued that the judge was wrong to leave the question of duty of care to the jury and that doing so conflicted the European Convention on Human Rights 1950 Article 6 and 7.
Decision/Outcome
Appeal dismissed. It was held that none of the previous authority Evans referred to had dealt with manslaughter. Applying R v Adomako [1994] 3 All ER 79, R v Miller [1983] 2 AC 161 and R v Kennedy [2007] All ER (D) 247 (Oct), it was held that in cases of gross negligence manslaughter, if an individual caused or contributed to creating a life-threatening situation; a consequent duty would normally arise to take reasonable steps to save the person’s life. On the facts of this case, Evans created such a situation by providing the heroin to her half-sister and had not taken subsequent steps to negate the danger created.
R v Khan & Khan [1998] Crim LR 830 Court of Appeal
The two appellants sold heroin to a 15 year old girl at their flat. This was the first time she had used heroin and she used twice the amount generally used by an experienced user. She took the heroin in the presence of the appellants. She fell into a coma and the appellants left the flat leaving the girl alone when it was clear that she required medical assistance. They returned to the flat the following day and found her dead. Medical evidence was such that if the girl had received medical assistance she would not have died. They were convicted of gross negligence manslaughter and appealed contending that a drug dealer does not owe a duty of care to summon medical assistance to his client.
Held:
The convictions were quashed due to a misdirection but the court did not rule out the possibility of a duty of care being owed by drug dealers.
“He (the trial judge) did not make any ruling as to whether the facts were capable of giving rise to the relevant duty and he did not direct the jury in relation to that issue. To extend the duty to summon medical assistance to a drug dealer who supplies heroin to a person who subsequently dies on the facts of this case would undoubtedly enlarge the class of person to whom, on previous authority, such a duty may be owed. It may be correct to hold that such a duty does arise. However before that situation can occur, the Judge must first make a ruling as to whether the facts as proved are capable of giving rise to such a duty and, if he answers that question in the affirmative, then to give the jury an appropriate direction which would enable them to answer the question whether on the facts as found by them there was such a duty in the case being tried by them.
Unfortunately, the question as to the existence or otherwise of a duty to take care towards the deceased was not, in this case, at any time considered by the Judge, and the jury was given no direction in relation to it.
The behaviour of these two Defendants towards Lucy Burchell was about as callous and repugnant as it is possible to imagine but, for the reasons which we have given, we are obliged to quash the convictions for manslaughter.
