Omissions

Question 1

Usually when is there only criminal liability?

Answer 1

Where someone does a positive act.

Question 2

Is there a general duty to act?

Answer 2

No.

Question 3

What are the circumstances where someone has to act?

Answer 3

• a duty imposed by a statute
• a duty imposed under the common law
• a duty imposed by contract
• a duty imposed by public office
• where there is a speical relationship between the parties
• a duty arising from the assumption of care of another
• a duty arising from the creation of a dangerous situation

Question 4

When is there a duty imposed by a statute?

Answer 4

Various statutes impose a duty on us to act on individuals e.g. under the Road Traffic Act 1988 it is an offence without a reasonable excuse to fail to provide a breath specimen when required or failing to provide details of insurance after and accident. Various acts impose responsibility on parents e.g. The Children and Young Persons Act 1993. A modern example is the Domestic Violence Crimes and Victims Act 2004 which created the offence of familial homicide. Section 5 of this act creates an offence of allowing the death of allowing the death of a child or vulnerable adult where the defendant was a member of the same household as the victim and had frequent contact with them.

Question 5

Lowe 1973?

Answer 5

The defendant who was of low intelligence failed to call a doctor when his nine week old baby was ill and she died from dehydration and emaciation. His partner who was also of low intelligence was told to take the baby to the doctor but did not because she was afraid the child would be taken into care. The defendant was convicted of manslaughter and willful neglect under The Children and Young Persons Act 1993. The court of appeal quashed his conviction because the prosecution could not establish the mens rea.

Question 6

What are the case from ‘duty imposed by a statute’?

Answer 6

• Lowe 1973

- Murjuru 2007

Question 7

Murjuru 2007?

Answer 7

The defendant went to work and left her partner with her baby daughter despite knowing his history of violent behaviour. He killed the baby while she was away. The defendant was convicted of familial homicide under the Domestic Violence Crimes and Victims Act 2004. The court of appeal upheld her conviction, it said the jury was entitled to conclude that by going to work and leaving her baby in his care she failed to take reasonable steps to protect her daughter.

Question 8

Cases for a duty imposed by a contract?

Answer 8

• Pittwood 1902

- Adomako 1994

Question 9

What is a duty imposed by a contract?

Answer 9

If a person is contracted to act in a particular way and then fails to act when under this contractual duty to do so they may be liable for an offence.

Question 10

Pittwood 1902?

Answer 10

A man driving a hay cart was killed after the defendant failed to close the crossing gate when he went to lunch. He had a contractual duty to ensure the crossing gate was closed whenever a train was passing. The defendant was convicted of manslaughter based on his failure to carry out his contractual duty to close the gate when the train approached.

Question 11

Adomako 1994?

Answer 11

An anesthetist was convicted of manslaughter because he failed to notice that a vital breathing tube had become disconnected during an eye operation. The patient lost oxygen resulting in brain damage and eventually died.

Question 12

Cases for ‘a duty imposed by public office’?

Answer 12

• Dytham 1979

Question 13

Dytham 1979?

Answer 13

Dytham was a police officer who was on duty when a bouncer ejected the victim and three men kicked the men to death. Dytham watched the incident, did nothing to intervene and then drove off. He was convicted of ‘misconduct whilst acting as an officer for justice’ and this was upheld by the court of appeal.

Question 14

Cases for ‘where there is a special relationship between the parties’?

Answer 14

• Gibbins and Proctor 1918

- R V Instan 1893

Question 15

What does a special relationship between the parties mean?

Answer 15

Where there is a special relationship between the parties such as parents and children, husband and wife, the courts recognise that members of families owe duties to each other.

Question 16

Gibbins and Proctor 1918?

Answer 16

Gibbins and his partner Procter failed to feed the mans 7 year old child Nelly and she died from starvation. The women was living in the same household and had taken money to feed the child but she didnt. The court held that she was therefore under a duty to act i.e. feed and care for the child. Both defendants were convicted of murder.

Question 17

Can there be liability for failing to act?

Answer 17

Yes.

Question 18

R V Instan 1893?

Answer 18

The defendant lived with her aunt who developed gangrene and was unable to care for herself. The defendant was the only person who knew of the aunts medical condition and she failed to get her aunt food or medical assistance. After 12 days of suffering her aunt died. Upholding her manslaughter conviction in the Court of Appeal, Lord Coleridge felt ‘the law would be hopelessly deficient if judges were unable to base liability on common duty of care owed by one relative to another.

Question 19

Cases for a ‘duty arising from the assumption of care of another’?

Answer 19

• R V Stone and Dobinson 1977

Question 20

What is duty arising from the assumption of care of another?

Answer 20

A duty will be owed by someone who voluntarily chooses to take care of another and this duty may be expressed or implied. This duty overlaps with the duty imposed on us by a special relationship but it is a wider duty as the law can impose criminal liability where the victim relied on the defendant and the defendant fails to help them.

Question 21

R V Stone and Dobinson 1977?

Answer 21

The defendants took Stones anorexic and infirm sister into their home. Both defendants were of low intelligence and Stone was partly deaf and almost blind. Both were described as ‘ineffectual and somewhat inadequate’. The sister became very ill, stopped eating and became bed-bound. The defendant made feeble and unsuccessful attempts to held that they had assumed or accepted responsibility as carers by taking her into their home and once she get medical help and eventually she died. The court became unable to care for herself they were obliged to either summon help or care for her themselves. Their feeble efforts were insufficient and both were convicted of manslaughter. The decision in this case is criticised as being harsh as neither of the defendants had the requisite mental capacity to deal with the situation. There is also a lack of clarity as to how far the defendants were expected to go. Some efforts were made to find the sister a doctor but neither of them could use a phone and this was not sufficient to discharge their duty especially as they had learning difficulties.

Question 22

Cases for ‘a duty arising from the creation of a dangerous situation’?

Answer 22

• R V Miller 1983

- R V Evans 2009

Question 23

What is a duty arising from the creation of a dangerous situation?

Answer 23

Where someone creates a dangerous situation, they are under a duty to act to put a stop to that danger or minimse the harm once they become aware of it.

Question 24

R V Miller 1983?

Answer 24

A squatter in a house lit a cigarette and then fell asleep. He woke to discover the mattress was on fire but he did nothing, he just moved to another room. The fire spread and the house was damaged. The defendant was convicted of arson and this was upheld by the Court of Appeal and the House of Lords. The House of Lords said that we all have a responsibility for our actions even if unintentional and where others are placed in danger from these actions we are expected to do something. This expectation to do something can generate a duty to act, so once Miller discovered the fire he was obliged to do something e.g. summon help, as he failed to do anything he was responsible for the resultant fire.

Question 25

R V Evans 2009?

Answer 25

Gemma Evans supplied her half-sister Carly aged 16 with drugs. Carly self-injected and became very ill. Neither the defendant nor her mother contacted the emergency services as they feared they would get into trouble and they hoped Carly would recover overnight, but she died. Both the defendants and her mother were convicted of manslaughter. The Court of Appeal confirmed both conviction on the basis that the sister owed Carly a duty based on creating a dangerous situation as in Miller, that the duty arose once she appreciated that the heroin she supplied was having a potentially fatal impact on Carly and she was obliged to do something to help and the mother owed a parental duty and failed to fulfil it.

Question 26

Can omissions also be classed as a part of a continuing act?

Answer 26

Yes, the concept of a continuous act can be used to allow what seems to be an omission to be treated as an act for criminal liability.

Question 27

Cases for ‘omissions also be classed as a part of a continuing act’?

Answer 27

• Fagan V Metropolitan Police Commissioner 1969

Question 28

Fagan V Metropolitan Police Commissioner 1969?

Answer 28

In parking his car, the defendant accidentally drove onto a police officer foot, the officer asked him to remove it but the defendant initially refused and swore at the officer. He then slowly removed the wheel from the foot. The defendant was convicted of assault, he appealed arguing that at the time he committed the act of driving on the officers foot he lacked the mens rea and though he had the mens rea when he refused to remove the car, this was an omission and the actus reus needed an act. His appeal was dismissed on the basis that driving onto the officers foot and staying there was one single continuous act, not an act followed by an omission and provided the defendant had the mens rea at some point during the continuing act he was liable.

Question 29

What is a release from duty?

Answer 29

An unresolved issue is whether a duty once undertaken may be relinquished.

Question 30

Cases for ‘a release from duty’?

Answer 30

• R V Smith 1979

- Airedale NHS Trust V Bland 1993

Question 31

R V Smith 1979?

Answer 31

The defendants wife bore a stillborn child at home. She hated doctors and would not let him call one. when she finally gave permission it was too late and she died. The trial judge directed the jury to balance the wifes wish to avoid calling a doctor against her capacity to make a rational decision. The jury were unable to agree and the defendant was discharged. So it would seem that if the victim is rational they may release a relative or carer from their duty of care.

Question 32

Airedale NHS Trust V Bland 1993?

Answer 32

Tony Bland was crushed in the Hillsborough football tragedy and was persistent vegetative state. After three years and with no prospect of him improving the Trust applied to the House of Lords for a deceleration that it was lawful for doctors to withdraw his life-supporting medical treatment, including artificial feeding. Permission was needed despite the family and doctors consent to ensure that withdrawing treatment would be lawful and Lord Goff stated several principles which should apply:
1. There is no absolute rule that a patients life must be prolonged no matter what.
2. Respect must be given for the patients 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.
However, this is a civil case and is not binding on criminal courts.

Question 33

Evaluation and criticisms of omissions?

Answer 33

• decisions are frequently made on a case by case basis, causing uncertainty. However, the law can expand when necessary e.g. to deal with drug suppliers and the consequences of the drugs they supply as illustrated in R V Evans 2009.
• it is not always easy to decide if a duty exists or not. Problems of defining a duty and whether it exists mean that potentially the concept of duty can be extended to a vast amount of areas. This is illustrated by Khan and Khan 1998 where the Court of Appeal made it clear that because the judge and jury decided where a duty exists, the area covered by the law on omissions will continue to grow. This could cause serious problems for human liberty and it could mean that it would be reduced to the extent that we are not free to act in any situation.
• when does a duty cease to exist? This is a problematic area, if the defendant has formed a duty of care then how can they get out of this duty or be released from it? Such as R V Smith 1979 and Airedale NHS Trust V Bland 1993. A person may not know the full extent of the duty or be able to fulfil it. This is because a defendant may take on a voluntary duty of care of an individual but later may wish to withdraw from the duty.

Question 34

Should there be a general duty on us to act, a Good Samaritan Law as other countries have?

Answer 34

In some countries, a person is made responsible for helping other people, even complete strangers, in an emergency situation. Should English law be changed placing a general duty on us to act or does our criminal law strike the right balance? Morally we would condemn a stranger who for example watches a child drown when they could easily rescue the child and should the law not reflect such morality.

Question 35

Arguments in favour of a Good Samaritan Law?

Answer 35

• the courts decide on a case by case basis if the relationship between 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 if undetermined 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 other in an emergency situation even where they are complete strangers. An example of this was when Princess Diana’s car crashed in Paris 1997 and journalists following her took photographs but it was alleged they did not try to help her. Although the French authorities investigated the allegation none were charged.

Question 36

What does Clarkson argue about the Good Samaritain Law?

Answer 36

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.

Question 37

Reform for omissions?

Answer 37

The draft Offence Against the Persons Act 1998 proposed creating an offence of assault by omission.

Question 38

Arguments against a ‘Good Samaritan Law’?

Answer 38

• 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 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?
• at what age would a general duty be imposed? Age 10 the age of criminal responsibility? Would someone with a disability be expected to act? Or a pregnant woman?
• 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 is necessary to prevent people causing harm to others. But Clarkson argues that our individual is frequently curtailed by opposing greater interests. He asks ‘which is the greater interest, ones right to sit on a park bench minding ones own business or the right of a drowning child to life?
• 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 victims death? This could create difficulties later in establishing causation.
• 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.