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*ANEW-L-Actus Reus > Omissions as actus reus > Flashcards

Omissions as actus reus Flashcards

1
Q

What is the normal rule of an omission?

A

that an omission cannot make a person guilty of a offence

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2
Q

Who explained that the normal rule is that an omission cannot make a person guilty of an offence?

A

by Stephan J , a 19th century judge

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3
Q

What is the law known as which some other countries have which makes a person responsible for helping other people in an ‘emergency situation’?

A

the Good Samaritan law

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4
Q

What does the Good Samaritan law do?

A

this makes a person responsible for helping other people in an ‘emergency situation’ even though they may be complete strangers

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5
Q

What is an example of the Good Samaritan law under French law?

A

when Princess Diana’s car created in Paris in 1997 the journalists who had been following her car took photographs of her injured but they did not try to help her even though she was critically injured. The French authorities threatened to charge these journalists under the French ‘Good Samaritan’ Law’

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6
Q

What is a problem with enforcing the Good Samaritan law in terms of danger to the person helping?

A

what if a rogue pretends to be seriously hurt in order to lure a stranger to his assistance so that the rogue can then rob the stranger

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7
Q

What is a problem with enforcing the Good Samaritan law in terms of danger to the victim?

A

by a person intervening, with them being untrained they could do more harm to an injured person

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8
Q

What is a question which could be posed regarding the Good Samaritan rule?

A

Who decides that there is an emergency so that the ‘Good Samaritan’ rule is operating?

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9
Q

What could be a problem with an emergency happening in front of a crowd of people?

A

Who would assume liable for the injured person, and do all of them have to help or is it enough for one of them to help

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10
Q

What was decided in Miller 1983 in regards to the Good Samaritan rule?

A

the HOL decided that a defendant who has created the risk would only be expected to take reasonable steps. He would not be expected to put himself at risk.

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11
Q

What case outlines the fact that a defendant who has created a risk would only be expected to take reasonable steps, but not expected to but themselves at risk?

A

Miller 1983

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12
Q

What does Miller 1983 suggest about the role of innocent passers-by in regards to the Good Samaritan rule?

A

that if the person who has caused the risk does not have to put themselves at risk then surely this applies to innocent passers by

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13
Q

In some cases what is an exception to the rule in regards to omissions?

A

it is possible that a failure to act can be the actus reus

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14
Q

When is an omission only sufficient for the actus reus?

A

where there is a duty to act

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15
Q

How many ways are there to which a duty to act can exist?

A

six ways

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16
Q

What are the 6 ways in which a duty to act can exist?

A
  • statutory duty
  • contractual duty
  • duty because of a relationship
  • duty which has been taken on voluntarily
  • duty through ones official position
  • duty which arises because the defendant has set in motion a chain of events
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17
Q

What can create liability for an omission?

A

an Act of Parliament

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18
Q

What are 3 examples of a statutory duty where an Act of Parliament has created liability for an omission?

A
  • Road Traffic Act 1988 s.170 & s.6
  • s.1 of the Children and Young Persons Act 1933
  • s.5 of the Domestic Violence, Crime and Victims Act 2004
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19
Q

What is s.170 of the Road Traffic Act 1988 which is a statutory duty?

A

failing to stop or report a road traffic accident

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20
Q

What is s.6 of the Road Traffic Act 1988 which is a statutory duty?

A

failing to provide a specimen of breath

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21
Q

What does s.1 of the Children and Young Persons Act 1933 do under statutory duty?

A

This section puts parents who are legally responsible for a child under a duty for providing food, clothing, medial aid and lodging for their children, if a parent fails to do this they can be guilty of the offence of wilful neglect

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22
Q

what is a recent example of an offence under a statutory duty under s.5 of the Domestic Violence, Crime and Victims Act 2004?

A

the offence of allowing the death of a child or vulnerable adult

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23
Q

What is the offence of allowing the death of a child or vulnerable adult under?

A

s.5 of the Domestic Violence, Crime and Victims Act 2004

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24
Q

Which section of the Road Traffic Act 1988 regards the failure to provide a specimen of breath?

A

s.6

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25
Q

Which section of the Road Traffic Act 1988 regards the failure to stop or report a road traffic accident ?

A

s.170 of the Road Traffic Act 1988

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26
Q

When does s.5 of the Domestic Violence, Crime and Victims Act 2004 apply?

A

where a person in the same household fails to take such steps as he or she reasonable could have been expect to take to protect the victim

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27
Q

What happened in the case of Pittwood 1902 under a contractual duty?

A

a railway cross keeper omitted to shut the gates, with the result that a person crossing the line was struck and killed by a train

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28
Q

What happened in the case of Pittwood 1902 under a contractual duty?

A

a railway cross keeper omitted to shut the gates, with the result that a person crossing the line was struck and killed by a train

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29
Q

In which case did a a railway cross keeper omitted to shut the gates, with the result that a person crossing the line was struck and killed by a train and the keeper guilty of manslaughter

A

Pittwood 1902

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30
Q

What is a modern example of a contractual duty ?

A

e.g a lifeguard at a pool who leaves the pool unattended. His failure to do his duty could make him guilty of an offence if a swimmer were injured or drowned

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31
Q

What is the relationship usually in a ‘duty because of a relationship?

A

a parent-child relationship

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32
Q

What duty does a parent have?

A

they have a duty to care for younger children

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33
Q

What case is an examples of a parent-child duty?

A

Gibbins and Proctor 1918

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34
Q

What happened in the case of Gibbins and Proctor 1918?

A

father of a 7 year old girl lived with his partner. He and the partner kept the girl separate from other children and deliberately starved her to death, both were convicted of murder

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35
Q

In the case of Gibbins and Proctor 1918, what duty did the father and mistress have to the daughter?

A

had the duty to feed her because he was her parent and the mistress undertook the role to look after the children, so she was also under a duty to feed the child

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36
Q

What was the omission in Gibbins and Proctor 1918 which was enough for the actus reus of the murder ?

A

the omission was the failure to feed her which resulted in her death

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37
Q

What two duties is Gibbins and Proctor 1918 an example of?

A
  • a duty because of a relationship

- a duty which has been undertaken voluntarily

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38
Q

Why is Gibbins and Proctor 1918 an example of a duty which had been undertaken voluntarily?

A

because the partner had voluntarily undertaken to look after the girl which therefore mean she had a duty towards the child

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39
Q

What are the 3 cases which come under the duty which has been undertaken voluntarily?

A
  • Gibbins and Proctor 1918
  • Stone and Robinson 1977
  • Evans 2009
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40
Q

Describe the case of Stone and Robinson 1977?

A

D’s elderly sister came to live with the defendants. V failed to eat, she eventually became bed ridden and incapable of caring for herself. Dobinson on at least one occasion prepared food for and helped wash Fanny. Fanny died of malnutrition. D’s were found guilty of her manslaughter.

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41
Q

Why did Stone and Dobinson owe Fanny a duty of care?

A

as Fanny was Stone’s sister he owed a duty of care to her

Robinson had undertaken some care of Fanny and so also owed her a duty of care

42
Q

What duty did Stone and Dobinson have?

A

they had a duty to either help Fanny themselves or to summon help from other sources, failure to do this meant they were in breach of their duty

43
Q

Describe the case of Evans 2009?

A

V aged 16 was a heroin addict and lived with mother and half sister. The half sister bought some heroin and gave it to V who self injected. Both mother and daughter never tried to get medical help, they only put her to bed. V died.

44
Q

What were the mother and daughter of Evans 2009 convicted of?

A

gross negligence manslaughter

45
Q

What duty did the mother and half sister have in Evans 2009?

A

mother owed a duty of care to V as she was her daughter
the half sister appealed claiming that she did not owe a duty of care. Court of Appeal upheld conviction on the basis that D had created a state of affairs which she knew or ought reasonably to have known was threatening the life of V.

46
Q

What case is an example of a duty through one’s official position?

A

Dytham 1979

47
Q

What is unique about the duty through one’s official position?

A

it is very rare

48
Q

What happened in the case of Dytham 1979?

A

Dytham was a police officer who was on duty and saw V in a fight in which 3 men kicked V to death. D took no steps to intervene or to summon help. D was convicted of misconduct

49
Q

What was D convicted of in Dytham 1979?

A

misconduct

50
Q

What case is 3 examples of when a duty arises because the defendant set in motion a chain of events?

A

Miller 1983
Santa-Bermudez 2003
Evans 2009

51
Q

Which case created this concept of owing a duty and being liable through omission?

A

Miller 1983

52
Q

What happened in the case of Miller 1983?

A

D was living in a squat and fell asleep while smoking a cigarette. He awoke to find his mattress on fire . He did not attempt to put out the fire or to summon help. The house caught on fire and he was convicted or arson

53
Q

In Miller 1983 , an example of a duty which arises because the defendant set in motion a chain of events, it was not the setting of the mattress on fire which made him guilty, what was it?

A

it was the fact that he had failed to take reasonable steps to deal with the fire when he discovered that the mattress was on fire. This omission meant that he had committed the actus reus for arson.

54
Q

What did the HOL point out in the case of Miller 1983? under the duty which arises because the defendant set in motion a chain of events?

A

The HOL pointed out that Miller was only expected to take reasonable steps, he did not have to put himself at risk.

55
Q

What happened in the case of Santa-Bermudez 2003?

A

a policewoman asked D if he had any needles or other sharp objects in his pockets. D said no, he lied and the policewoman was injured by a needle which caused bleeding. D was convicted of assault occasionally actual bodily harm, under s.47 of the Offences Against the Persons Act 1861

56
Q

What was D convicted with in the case of Santa Bermudez 2003 which was an example of a duty which arises because the defendant set in motion a chain of events?

A

convicted of assault occasioning actual bodily harm under s.47 of the Offences Against the Persons Act 1861

57
Q

Why was D convicted in Santa Bermudez?

A

he failed to tell the police officer of the needle which made him liable as he knew there was a danger and failed to warn her. This failure was enough for the actus reus for the purposes of an assault causing ABH.

58
Q

How is Evans 2009 an example of a duty which arises because the defendant set in motion a chain of events?

A

The half sister supplied the heroin, even though she self injected- she had created a state of affairs which she knew or ought reasonable to have known was threatening to the life of V, the fact she didn’t called for medical assistance made her liable for murder

59
Q

What case is an example of an involuntary manslaughter and omission?

A

Lowe 1973

60
Q

In what two ways can involuntary manslaughter be committed

A

through an

  • unlawful act manslaughter and
  • gross negligence manslaughter
61
Q

Which way of involuntary manslaughter cannot be committed by an omission?

A

an unlawful act manslaughter

62
Q

Which case decided that an unlawful act manslaughter cannot be committed by an omission?

A

Lowe 1973

63
Q

What happened in the case of Lowe 1973?

A

D was father of 9 week old baby who became ill and died. D was of low intelligence and told baby’s mother to take child to doctor, but did nothing else. The mother was of subnormal intelligence, D was convicted of manslaughter of baby. COA quashed conviction because there was no unlawful act.

64
Q

What did the Court of Appeal quash the conviction of D in the case of Lowe 1973?

A

because there was no unlawful act. A failure to do something could not be an act.

65
Q

Which way of involuntary manslaughter can be committed by an omission?

A

gross negligence manslaughter

66
Q

Why could it be argued that D in Lowe 1973 should have been convicted of gross negligence manslaughter?(case)

A

because D owed the child a duty of care and failed to get help. The idea shown in Stone and Dobinson 1977.

67
Q

What is needed to be committed of gross negligence manslaughter?

A

D must owe a duty of care

68
Q

If a duty of care exists under involuntary manslaughter, what does this mean for D if an omission or failure to act by him causes the death of a victim ?

A

this means D can be liable

69
Q

What is an example of a case under the duty of doctors?

A

Airedale NHS v Bland 1993

70
Q

When may the actions of a doctor not be an omission?

A

if they discontinue treatment in the best interests for the patient

71
Q

What happened in the case of Airedale NHS v Bland 1993?

A

Bland had been crushed by a crowd at the Hillsborough football stadium which stopped oxygen from getting to his brain leaving him with severe brain damage. In a persistent vegetative state, fed artificially. After 3 years the doctors caring for him asked the court for a ruling that they could stop feeding him.
Courts ruled they could even though Bland would die as a result

72
Q

What is wrong with the Latin phrase actus reus?

A

it is not an accurate description of conduct which can be sufficient to make a person liable for an offence

73
Q

What is a contradiction to the fact that actus reus means an act?

A

the law clearly recognises that a failure to act can be sufficient for liability

74
Q

What word did the Law Commission in its Draft Criminal Code 1989 prefer the phrase of to describe actus reus?

A

‘external element’

75
Q

what are 5 issues regarding the law on omissions?

A
  • Good Samaritan law
  • when a duty should be imposed so an omission is sufficient for actus reus of offence
  • when a person assumes a duty should they be liable for a failure to act
  • omissions in medial treatment
  • justification for statutory imposition of liability for an omission
76
Q

What is a reason for the Good Samaritan law today?

A

the modern view of moral responsibility is in favour of such a duty

77
Q

What is a scenario where a moral responsibility in todays society is an acceptable reason for invoking the Good Samaritan law?

A

if a child was going near the very edge of a cliff, the parent or guardian would be help liable for failure to act if they did not try to warn or remove the child. But a stranger would not. This is not acceptable today.

78
Q

What is a reason against the Good Samaritan law today?

A

there are well trained professional emergency services to deal with dangerous situations

79
Q

Why could it be argued that the tax payer already does their bit to help society without the Good Samaritan law?

A

they pay for the emergency services

80
Q

Why is it worse for untrained strangers to intervene in emergency situations?

A

they could create more work for the emergency services, possibly leading to the loss of two lives.

81
Q

What is the normal way of deciding if a duty exists? 3 steps

A

1) Judge at trial determines if there is evidence to establish a duty
2) Jury can decide whether duty does exist
3) Jury have to decide if the duty has been broken

82
Q

What is a case example of when there is a problem of deciding when a duty exists?

A

Khan and Khan 1998

83
Q

What happened in the case of Khan and Khan 1998?

A

D’s supplied heroin to a new user who took it in their presence and collapsed. D’s left her, when they returned she had died. Conviction for unlawful act manslaughter was quashed
CoA suggested in the future there would be a duty to summon medical assistance in certain circumstances

84
Q

Which case points out the law is capable of expanding to include new duty situations?

A

Khan and Khan 1998

85
Q

How did Khan and Khan 1998 reflect that the law is capable of expanding to include new duty situations?

A

the CoA stated obiter that duty situations could be extended to other areas

86
Q

What can a mentally capable adult refuse?

A

medical treatment

87
Q

What is the point in imposing a duty for the care of a vulnerable adult?

A

this has the purpose of ensuring that potential harm is avoided.

88
Q

What is a problem with imposing duties some are unaware of, or are aware but no longer want to have a duty?

A

There is no clear cut was to discharge a duty

89
Q

What is a way for fulfilling duty?

A

to summon help

90
Q

What area of law seems contradictory?

A

the duty of doctors

91
Q

Why is the law of the duty of doctors conflicting such as in the case of Airedale NHS Trust v Bland 1993?

A

as even though withdrawing feeding from an unconscious patient would cause the patient to die, which the medial staff are aware of, they are not liable for the omission

92
Q

What did the HOL point out in Airedale NHS Trust v Bland ?

A

that euthanasia by a positive act to terminate patients life would remain unlawful

93
Q

What are many statutory duties concerned with?

A

vehicles and driving

94
Q

What does the law in the area of vehicles and driving often impose?

A

strict liability

95
Q

What does it mean by the fact that in the area of law regarding vehicles and driving there is often strict liability imposed?

A

this means that not only is the defendant liable because he has failed to do something but in addition the prosecution do not have to prove that he had any mens rea

96
Q

why do the prosecution under statutory duties not have to prove any mens rea?

A

because the law in this area often imposes strict liability

97
Q

What is the justification in strict liability under statutory duties?

A

for the greater good of society

98
Q

Why have some statutory duties been imposed?

A

because of the difficulty of proving an offence

99
Q

What was the reason for the introduction of the offence of causing or allowing the death of a child or vulnerable adult under s.5 of the Domestic Violence, Crime and Victims Act 2004?

A

because there had been difficulties in proving an offence

100
Q

Why would it be difficult to prove the offence of the murder of a child in a household?

A

as the mother and father could blame each other so that it could not be proved who had done it

101
Q

Why is it important that all members of the household under the 2004 Domestic Violence, Crime and Victims Act could be liable for failure to protect the child?

A

as the law should provide children and vulnerable adults with as much protection as possible

*ANEW-L-Actus Reus (3 decks)

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