Criminal LAW - Omissions PDF

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CRIMINAL LAW OMISSIONS It is a general rule in English Criminal Law that a person is not liable for an omission to act unless the law imposes upon him a duty to act. A moral duty to act will not suffice. A duty to act can arise by statute or common law. An omission to act without a corresponding dut...

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CRIMINAL LAW

OMISSIONS It is a general rule in English Criminal Law that a person is not liable for an omission to act unless the law imposes upon him a duty to act. A moral duty to act will not suffice. A duty to act can arise by statute or common law. An omission to act without a corresponding duty will not create an offence R vs. Wm Smith. There must be a legal duty to act. There must be a breach of that duty. The breach must have caused the offence to occur. D must have the requisite mens rea.

DUTY ARISING FROM STATUTE Statutes have created expressed offences of omissions in certain instances where the defendant has been under a statutory duty to take positive action e.g. a) The Children And Young Person Act 1933 S 1 (1) creates the offence of willful neglect of a child in a manner likely to cause it unnecessary suffering or injury to health; b) The Road Traffic Act 1988 S170 (4) imposes a duty to report an accident within 24 hour, while S6 of the said Act, imposes a duty on a motorist to provide a police officer with a specimen of breath when properly required to do so. Failure to do either of these things amounts to an offence.

DUTY ARISING FROM COMMON LAW A common law duty to act can arise in the following ways: a) Duty arising from a special relationship: The Common Law has imposed a duty of care on persons based on blood relationships. A parent is under a duty to protect his young child from physical harm. Therefore, a mother who fails to feed a child resulting in the child’s death can be criminally liable for such a failure.

In Gibbins and Protor (1918) a man and his common law wife were convicted of murder of the man’s child by reason of their failure to feed the child resulting in the child’s death. In R vs. Hood the duty was applied to spouses.

b) Voluntary assumption of a duty of care: This duty can be viewed as an extension of the duty of care to incorporate other persons. It is based on a relationship of reliance between the defendant and the victim i.e. where an accused person has voluntarily assumed responsibility for another’s care and then failed to fulfill that undertaking. In R vs Stone and Dobinson (1977) Stone and his common law wife Dobinson allowed Stone’s sisters Fanney to come to their home and live. Fanney, who was morbidly anxious about becoming overweight, denied herself proper meals and became unable or unwilling to leave bed. She developed bedsores and eventually died of blood poisoning as a result of the untreated bedsores. The defendant had not obtained medical assistance for Fanney although they knew she was unwell. They were both convicted for manslaughter. The C.A. in dismissing their appeal against conviction held that when Fanney had become helpless inform the defendants were under a legal duty to summon help or care for her, themselves. The failure to discharge this duty was the cause of Fanney’s death. It is noted that if Stone had not allowed his sister to stay at his home and she had died of the same condition at her own home or any other place, he would not have been liable for her death since no duty of care would have been owed.

In R vs Instan (1893) D lived with her aunt, an elderly woman. The aunt developed gangrene in her leg and was unable to care for herself. D being the only person who knew of the Aunt’s condition, failed to provide her with food or medication. The Aunt subsequently died and D was convicted of manslaughter. On appeal Lord Coleridge CJ stated “English Law would be hopelessly deficient if judges were to be unable to base liability on the common duty of care owed by one relative to another.”

c) A breach of a contractual duty:

Where a defendant is under a contractual duty to act, his failure to fulfill that contractual duty can give rise to criminal liability. While the law of contract directs that a contractual obligation can only be owed to other parties to the contract, criminal liability is not so limited. In R vs Pittwood (1902) D, a level crossing gate keeper, in breach of his contract of employment failed to close the gate when train was approaching with the result that a hay cart crossing the railway line was hit by the train. One man was killed and another seriously injured. D was convicted of manslaughter. Wright J held that a person may incur criminal liability from failure to perform a duty arising out of a contract and that duty could be owed to road users even though the contractual obligation was only owed to the railway company.

d) Where the accused has created a dangerous situation: Where an accused does an act, which puts a person or property in danger, once the accused becomes aware of the danger he has created, he is under a duty to take reasonable steps to prevent or reduce the harm. The leading authority on this principle is the House of Lords decision in R vs Miller (1983). D, a squatter in P’s house, went to sleep holding a lighted cigarette. The mattress accidentally caught fire. D, woke and did nothing to put the fire out. He moved into an adjoining room and went to sleep there. The house caught afire. D was convicted of arson contrary to S1 (1) and (3) of the Criminal Damage Act 1971. The House of Lords held that a person would commit the actus reus of the offence if, having accidentally started a fire which created a risk of damage to property, he became aware of what he had done before the resultant damages was complete, but failed to secure the property at risk. (note the speech of Lord Diplock). See also R vs Evans (2009) where D gave her half-sister heroin and the half-sister overdosed herself. In R vs Speck (1977) D was convicted of an offence under S1 of the Indecency with Children Act 1960. An 8-year-old girl approached D and placed her hand of his penis. He allowed her hand to remain therefore approximately 5 minutes, during which time he had an erection. He contended on appeal that he had not committed any act of gross indecency with or towards a child under the age of fourteen (14). The Court of Appeal held that D’s inactivity in failing to remove the hand of the little girl, would amount to an invitation. e) Duty arising from Public Office:

A common law duty of care can be imposed on a person who holds a public office that requires him to care for members of the public. In R vs Dytham a uniformed police officer failed to intervene when he saw a man being kicked to death some 30 yards away. He was held to be guilty of the common law offence of misconduct in public office.

f) A person who has the power of control over another or another’s use of property: In Du Cros vs Lambourne the owner of a car was convicted for speeding even though the police were uncertain as to who was driving. If someone else was driving they were doing so in the owner’s presence.

Where the express term of an offence requires an act, criminal liability cannot be based on an omission to act. This can be discerned from the decision in R vs Ahmad (1984) where the C.A. held that the words “does acts” in the Protection From Eviction Act 1977, were to be strictly construed and were not satisfied by proof of an omission.

Withholding life saving treatment: In the case of Airedale NHS Trust vs Bland (1993), the House of Lords held that the withdrawal of artificial feeding from a patient in a persistent vegetative state, who had no hope of improvement or recovery, would not constitute murder by omission. When all hope of recovery had been abandoned, it was not in the patient’s best interests to be kept alive and the doctor’s duty to provide nourishment ceased. It was held unanimously that the medical staff could discontinue artificial feeding and thus allow Mr. Bland to die....