3. Omissions PDF

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3. Omissions R v Smith (William) RULE: There is no general duty to act to prevent harm HELD: ‘omission, without a duty, will not create an indictable offence.’ R v Miller HELD: “[T]he conduct of the parabolical priest and Levite on the road to Jericho may have been indeed deplorable, but English law has not so far developed to the stage of treating it as criminal” (per Lord Diplock)

Duties may arise by (i) (ii) (iii) (iv) (v) (vi) (vii)

Statute Personal relationship (i.e. parent/child) Voluntary assumption of care (teacher) By contract The accused creating a dangerous situation From public office Duty to control conduct of others (police)

R v Lowe RULE: In order to secure a conviction on an omission the prosecution must find 1) 2) 3) 4) 5)

D had a legal duty to act D breached the duty The breach caused the actus reus of the offence to occur The accused had the requisite mens rea The crime is capable of being commited by omission

Legal duty to act Statutory duty  Statutes can create a duty, the breach of which may cause an offence Road Traffic Act 1988, s6(4) RULE: Statutes can create a duty, the breach of which may cause an offence FACTS: it is an offence to fail to provide a specimen of breath. Special Relationship R v Gibbons & Proctor RULE: parent is under a duty to care for his or her children

FACTS: D1 lived with D2, together with child N and D2’s other children. D1 gave money to D2 to feed children, D2 deliberately starved N to death in the same house where they all lived together. HELD: D1 was convicted of his daughter’s murder based on a breach of his duty not to neglect her. D2 was convicted on the basis that she had a duty to look after N as she had accepted charge of her.

Re A (Children) (Conjoined Twins) RULE: Extension of the Gibbons & Proctor principle. FACTS: conjoined twins certain to die without surgery. Operation could save one of the twins, parents wouldn’t consent HELD: omission to act to save one of the twins could render the parents guilty of murder by extension of the principle in Gibbons & Proctor.

R v Hood RULE: a husband/wife relationship can create a duty FACTS: R v Hood - D failed to summon medical assistance when his wife fell and broke several bones, some weeks later she died HELD: D was liable on the basis of his relationship with her. R v Smith RULE: a husband/wife relationship can create a duty Voluntary Assumption of Duty R v Nicholls RULE: Providing assistance to an individual who is helpless or in distress due to infancy, mental illness or other infirmity will give rise to a duty of care. HELD: ‘if a person chooses to undertake the care of a person who is helpless either from infancy, mental illness or other infirmity, he is bound to execute that responsibility and if he by gross negligence allows him to die he is guilty of manslaughter’ (Brett J) R v Gibbons and Proctor RULE: Providing assistance to an individual who is helpless or in distress due to infancy, mental illness or other infirmity will give rise to a duty of care. FACTS: Proctor was convicted of murder for starving the child of her partner as she was living with Gibbons as his de facto wife. Having assumed a duty, she was therefore liable if she omitted to perform that duty.

HELD: “She [Edith Proctor] had charge of the child. She was under no obligation to do so or to live with Gibbins, but she did so, and receiving money, as it is admitted she did, for the purpose of supplying food, her duty was to see that the child was properly fed and looked after, and to see that she had medical attention if necessary”

R v Stone and Dobinson RULE: Providing assistance to an individual who is helpless or in distress due to infancy, mental illness or other infirmity will give rise to a duty of care. FACTS: D1 & D2 accepted into their home S’s elderly anorexic sister, she became bed ridden from not eating and D1 & D2 failed to get medical assistance HELD: Both convicted as even though neither had a duty imposed on them by law, they had voluntarily assumed this duty upon themselves. R v Ruffell RULE: Providing assistance to an individual who is helpless or in distress due to infancy, mental illness or other infirmity will give rise to a duty of care. FACTS: Victim fell unconscious while he and R were taking drugs, R phoned Vs mother and tried to revive him, but ultimately left him sat on a doorstep. HELD trial judge said a duty could be assumed: V was a friend, in Rs house, and R had made some attempt to revive him. If R had assumed a duty, had he breached it by leaving V outside? The jury decided he had and he was convicted. R v Instan RULE: Providing assistance to an individual who is helpless or in distress due to infancy, mental illness or other infirmity will give rise to a duty of care. FACTS: niece lives with aunt, who’s leg goes gangrenous, she doesn’t feed her or summon medical assistance. Aunt dies. HELD: D held to have assumed a DOC for her aunt. R v Sinclair (James) RULE: Providing assistance to an individual who is helpless or in distress due to infancy, mental illness or other infirmity will give rise to a duty of care. FACTS: Sinclair and the victim went to a flat owned by Johnson to buy methadone from another man there. They injected themselves with methadone at 2:30 p.m. The victim fell unconscious. Sinclair stayed with him for most of the afternoon and night. Both he and Johnson made limited attempts to help the victim, but an ambulance was not called until 6:30 a.m. the next day. The victim was declared dead upon arrival at hospital HELD: “So far as Johnson is concerned, there is no English authority in which a duty of care has been held to arise, over a period of hours, on the part of a medically unqualified stranger … Johnson did not know the deceased. His only connection with him was that he had come to his

house and there taken methadone and remained until he died. Others were coming and going in the meantime. The fact that Johnson had prepared and administered to the deceased saline solutions does not, as it seems to us, demonstrate on his part a voluntary assumption of a legal duty of care rather than a desultory attempt to be of assistance. In our judgment, the facts in relation to Johnson were not capable of giving rise to a legal duty of care” (per Rose LJ in Sinclair (James)(supra)) “Sinclair was in a different position. The evidence was that he was a close friend of the deceased for many years and the two had lived together almost as brothers. It was Sinclair who paid for and supplied the deceased with the first dose of methadone and helped him to obtain the second dose. He knew that the deceased was not an addict. He remained with the deceased throughout the period of his unconsciousness and, for a substantial period, was the only person with him. In the light of this evidence, there was in our judgment material on which the jury, properly directed, could have found that Sinclair owed the deceased a legal duty of care” (per Rose LJ in Sinclair (James)(supra)) Contractual Duty R v Pittwood RULE: A duty may arise out of contractual duty. FACTS: defendant was a railway gatekeeper – one day he forgot to shut the gate when he went for lunch, and a man was killed when a hay-cart was struck by a train HELD: “The man was paid to keep the gate shut and protect the public … A man might incur criminal liability from a duty arising out of contract” Creating a Dangerous Situation R v Miller RULE: D will owe a duty to act where he has created a dangerous situation. Whether he intended to create a dangerous situation of not is irrelevant. FACTS: squatter wakes up to a fire created by his unextinguished cigarette, and instead of putting it out just moves to another room. HELD: D convicted of arson (criminal damage act 1971, s(1) and S1(3)). The HOL held that if you set in motion a dangerous chain of events, and then realizes he can prevent further damage, his inaction can become an actus reus of criminal damage. Diplock: I see no rational ground for excluding from conduct capable of giving rise to criminal liability, conduct which consists of family to take measures that lie within ones power to counteract a danger that one has oneself created if at the time of such conduct one’s state of mind is such as constitutes a necessary ingredient of the offence. R v Evans RULE: D will owe a duty to act where he has created a dangerous situation. Whether he intended to create a dangerous situation or not is irrelevant.

FACTS: Evans, 24, supplied younger half-sister, Carly. Carly self-injected and started showed signs of OD – Evans and her moth (both addicts) decided not to call for help for fear or being prosecuted. C died in the night HELD: The mother was held to have a duty on familial grounds, E escaped duty by the same rationale. However she was then found to have generated a duty by the fact that she created a dangerous situation (supplying the heroin) which she also had the capacity to reduce the damage of (call for help on signs of OD). On these grounds she assumed a duty of care and was held liable for gross negligence manslaughter. Public Office Holders R v Dytham RULE: Failing to perform a public duty may incur criminal liability FACTS: D was police officer who witnessed someone being kicked to death by a bouncer. He did not attempt to stop the act HELD: He was guilty of willfully neglecting to perform his duty...