Omissions- Actus Reus, Mens Rea. general rule and the exceptions with cases. distinguishing between an act or omission. PDF

Preview

Summary

Omissions: includes: Actus Reus and Mens Rea. General rule and exceptions to the general rule: special relationship, voluntary assumption of responsibility, Duty to avert danger created (supervening fault), Contractual duty/public duty, Statutory duty and cases!.
Distinguishing between an act...

Description

Week 2, Lecture 2

Omissions L/O: Understand the circumstances in which one can be criminally liable for an omission to act. Although the Actus Reus element of conduct will usually involve the performance of a positive act. An omission is not an act but an omission/failure to act. General rule: There is no liability for an omission to act. Thus, conduct offences require a positive act by the D in order to establish liability. This general rule is often expressed by the phrase that ‘there is no duty of easy rescue.’ - A sees B drowning and is able to save him by holding out his hand. A abstains from doing so in order that B may be drowned, and B is drowned. A has committed no offence. (Stephen, Digest of Criminal Law (1887)) Exceptions to the general rule: - Special relationship - Voluntary assumption of responsibility - Duty to avert danger created (supervening fault) - Contractual duty/public duty - Statutory duty Special relationship The common law imposes a duty on an individual to act where there is a special relationship between the parties. The closer the relationship, the more likely it is that the law will impose a duty on an individual to act e.g. parent and child. - Downes (1875) 13 Cox CC 111 - Gibbins and Proctor (1918) 13 Cr APP R 134 - Smith [1979] Crim LR 251 - Hood [2004] 1 Cr App R (S) 73 Voluntary assumption of responsibility Duty to act may be imposed on a Defendant where the Defendant has voluntarily assumed responsibility for another person. Where the Defendant undertakes to care for a helpless or infirm relative, any omission to do so resulting in death will render the Defendant guilty of murder or manslaughter. Such an undertaking to care for another may arise as a result of an express or implied act. - Nicholls (1874) 13 Cox CC 75 - Instan [1893] 1 QB 450. - Stone and Dobinson [1977] QB 354 - Ruffell [2003] EWCA Crim 122, - Miller (1983)- Miller principle Duty to avert danger created (supervening fault) The common law imposes a duty on the Defendant to act to avert a danger that he has created. Where the Defendant innocently does an act which creates a risk of personal injury

or damage to property and the Defendant becomes aware of that risk, the law imposes a duty on the Defendant to act to avert or minimise the danger. - Miller [1983] 2 AC 161 - DPP v Santana-Bermudez [2003] - Evans (2009) Contractual duty/public duty A contract may give rise to a duty to act which may lead to criminal liability if the Defendant fails to meet his contractual obligations and this leads to a fatality or serious harm being caused to a person. - Pittwood (1902) 19 TLR 37 - Dytham [1979] QB 722 Statutory duty The law imposes a statutory duty on the Defendant to act in a particular way. Failure to act in accordance with the statute will render a Defendant liable for a criminal offence - Failing to report an accident contrary to s.170 of the Road Traffic Act 1988, - Failing to provide a breath specimen contrary to s.6(4) of the Road Traffic Act 1988 - Under s.1 of the Children and Young Persons Act 1933, it is an offence for a person to willfully neglect a child - Sheppard [1981] AC 394. Act or omission? - Can be difficult to distinguish between a positive act and an omission. The distinction between positive acts and omissions becomes most apparent in medical cases involving the withdrawal of treatment from a patient. - Dr Arthur (1981) 12 BLMR 1- baby suffering from DS was rejected by his mother and told the Dr she did not want the baby to survive. Dr Arthur directed that the baby should receive water and no food, and the baby was given a drug with the purpose of stopping the baby from wanting sustenance. The baby died less than 3 days after birth and Dr Arthur was charged with murder, later dropped to manslaughter as believed there may have been an alternative cause of death. The Jury acquitted as there was no act from Dr Arthur. Withholding food would not be unlawful and this is an omission where no criminal liability can be imposed on the Doctor. (Dr can only be liable if Dr performs a positive act.) - Airedale NHS Trust v Bland [1993] 2 WLR 316 Offences which may be committed by omission - Murder and manslaughter can be committed by omission - DPP v Santana-Bermudaz - Fagan v Metropolitan Police Commissioner [1969] 1 QB 439 - Applied in the case of Kaitamaki v R [1985] AC 147, and this legal decision can now be found in the Sexual Offences Act 2003....