Card Set Information

2014-06-09 08:03:01
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  1. AR - introductory points
    • All the other parts of the crime
    • Physical - conduct/consequences/circumstances
    • The requirement is usually satisfied by the defendant committing a positive act which they have voluntarily performed
    • in certain, limited cases the AR can be an omission (the D failing to do something)
    • e.g. a parent who has failed to feed their child may have committed manslaughter by omission
  2. Introductory points
    • In the English Legal System there is no general duty to act to help someone (good Samaritan law; which will be explored later.
    • Though rare, crimes by omission can be created by both common law and statute
  3. Statutory Crimes by omission
    • Parliament can create crimes by omission
    • For example of a statute which contains crimes by omission is the RTA (1988) and failure to stop at the scene of an accident/failure to provide a specimen of breath
    • The problem with this however is that parliament does not always make clear its intentions when drafting and the courts may have to interpret to decide if it’s a crime by omission or not.
    • An example  of  this was the Theft Act 1968. it was not clear whether theft by false accounting could be committed by omission (failing to declare/provide documents and the case of Shama told us that it could be.
  4. Common Law: Duty to act situations
    • The common law (courts/case  law) have recognised 5 duty of care situations where crimes can be committed by omissions
    • There are however certain requirement that must be satisfied
    • (1) the crime must be one which is capable of being committed by omissions (i.e. murder, manslaughter and since the case of Bermudez (2003))
    • (2) there must be an existing duty (of care relationship between the parties)
  5. The 5 common law duty to act situation where the law recognises that criminal liability must flow from omissions (failure to act)
    • Contract
    • Parent and child
    • Position of Office
    • Voluntary assumption of care
    • Creating a dangerous situation
  6. Duty arising from a contract
    • Contract where the parties have an existing relationship under contract which imposed a duty to act in certain situations.
    • The courts have accepting the failing to act in these situations can lead to criminal liability by omission – Pitwood
  7. Duty arising from a relationship
    • Parents have a duty to look after their children and may be percuted if they fail to fulfil that duty.
    • This not only included biological parents. The courts can now implose a duty if the parties involved are not blood relation.
    • It’s been put on a statutory footing with the Children and Young Persons Act after the case of Gibbson and Proctor where they failed their child/step child Nelly and were charged by murder by omission.
    • AO2: Emotional cases are hard for juries
  8. Duty through public office
    • R V Dytham - failure by a police officer to intervene in a fatal assault whilst he was still on duty
    • Misconduct whilst acting as an officer of justice is a common law offence capable of being committed by omission
  9. Duty through Voluntary assumption of care
    • Agreeing to look after someone.
    • Stone V Dobbinson
  10. Creating a dangerous situation
    • If someone creates a situation that causes risk to another’s life or property, that person is then under a duty to act in order to stop, or at least limit, the harm caused. If the person doesn’t do so he or she may be liable for any resulting consequences
    • Miller
  11. Problems with duty to act situations
    • It’s hard to see when the duty ends.
    • A case that illustrates this and omissions is the case of Bland when parents and doctors want to cease treatment but doctors feared of being charged with murder by omission.
    • The HofL said that doctors are no longer under the duty to act if its no longer in the patients best interest to treat.
  12. Good Samaritan Law
    • In English Law we do not have Good Samaritan law.
    • There is no general duty to act to help another person unless one of the existing duty situations exists).
    • This means that you can’t be convicted of a criminal offence for failing to act/help say a stranger.
    • Whilst there no legal obligation there is of course often a moral obligation that people feel and this area of law has been subject of much critism in that many argue that the law should be extended in this area; we should have GSL.
    • Our current system contrasts with other countries; most western European countries have some form of GSL
  13. Arguments for extending our law (to have GLS/ general duty to help other in danger)
    • 1) Moral; good to help others; makes society a better and safer place for us all
    • 2) Helps saves lifes
  14. Argument Against :
    • Could endanger life/make the situation worse if untrained people intervene, indeed they too be injured/ need rescuing
    • Wrong for law to impose morality on others
    • Its an invasion of the individuals privacy to force them to intervene
    • The rescuer could be sued by the person in danger if they made the matter worse
    • We all pay our taxes for specially trained people to do the rescuing
    • Its criminalised people who are not truly criminal
    • It would be difficult to enforce
  15. Duty arising under contract cases
    • Pitwood
    • Adamoka
  16. Pitwood
    • D employed as a railway crossing keeper. Failed to close gates when train coming. Man with horse and hay cart hit and killed
    • Manslaughter conviction. Crime by omission - there was a contractual duty
  17. Adamoka
    • Anesthetist fails to notice that a breathing tube has become disconnected during an operation and v dies
    • Convicted of manslaughter
  18. Duty arising from a relationship
    • Gibbins and Procter
    • Harris and Harris
    • Smith
  19. Gibbins and Procter
    • D's failed to feed Nelly who died of starvation and hid the body under brick shed.
    • CA upheld murder conviction and murder can be committed by omission when there is an existing duty situation recognised at common law
  20. Harris and Harris
    • Parents refused to allow Drs to treat diabetic daughter with insulin and she died
    • Convicted of manslaughter
  21. Smith
    • Husband failed to call Dr whilst wife giving birth
    • Jury could reach a decision but generally held that spouses owe each other a duty of care
  22. Duty arising from voluntary assumption cases
    • Stone and Dobbinson
    • Instan
  23. Stone and Dobbinson
    • Sister of one of the D's came to live with them and unable to care for herself
    • They faied to care for her or call for medical assistance
    • Manslaughter conviction
  24. Instan
    • D went to live in his aunt ho was not able to care for herself.
    • D left her in bed, ate her food and failed to summon help - she died
    • Manslaughter conviction
  25. Miller (duty of care arising from creation of a dangerous situation)
    • Homeless man who set fire to a mattress with a cigarette.
    • Moved and went to sleep in a different room
    • Did not summon help
    • convicted
  26. Fagan
    • In the past it was held that assault couldnt be committed by omission
    • Man drove over policeman foot, when police man told him to reverse off he refused
    • Got round this by applying the doctine of the continuing act
  27. Bermudez 2003
    • Female police officer searching suspect asks if sharp objects in pockets. He denies, she searches and is injured by a needle
    • The CA decided that it was possible to commit an assault by omission
  28. Limit a duty  - changes/end
    • Sometimes a duty can change and end - Bland 1993 - He was in persistent vegetative. After 3 years, it was clear he would not recover and application made to stop treatment - Duty to care replaced by duty to act in his best interest, so failure to continue treating not criminal
    • AO2: Protection offered to doctors - essential so doctors are not in constant fear of litigation 
    • Doctors may be overprotected as they have to behave very badly to be liable.
    • Some judicial flexibility to say a duty to act in the patients best interests prevails over a duty to treat
    • There are issues surrounding euthanasia
  29. Limit a duty - does not exist
    • A duty may not exist in the first place - Khan and Khan 1998 - D's were drug dealers who gave heroin to girl who self-injected. She collapsed, D's left and the girl died - convictions quashed as CA said no duty situation between drug dealers and victim.
    • AO2: A duty may arise where a person is vulnerable and needs protecting but a small act, such as summoning help, may be enough
  30. Limit a duty - releases
    • A person of sound mind can release another from their duty of care - Smith 1979 - D's wife was so scared of doctors she would not allow D to get doctor when baby stillborn. When D did get a doctor wife was so ill she lied.
    • AO2: Arguable a mentally competent adult should be able to make their own decisions, even those that lead to death
  31. Evaluation
    • Breadth of liability - not always easy to decide if a duty exists
    • - Decisions often made on a case-by-case basis, causing uncertainty
    • - Law can expand when necessary - for example, to deal with drug dealers and the consequences of drugs they supply
    •  - Arguably unfair that a person owing a duty who does nothing can be liable, while a stranger who watches something horrific an does nothing is not liable
    • Is automatic liability once a duty is assumed fair?: - Arguable a person should accept responsibility for a duty they assume
    • -However, they may not know its full extent or be able to see it through
    • Complexity for Parliament: - social paternalism allows duties to be created and extended for society's protection, encouraging people to be good citizens
    • Legislation does not necessarily improve behaviour
    • Could lead to the creation of a new offence as in Holland, of a failure to rescue
  32. Evaluation for good Samaritan law:
    • Exists elsewhere, such as France, and is based on commonly accepted moral principles
    • Makes people take responsibility for their actions but potentially extends duties even to strangers
    • People may be put in situations they are not competent to deal with
    • Limits become hard to define
    • Must someone put themselves at risk to help another?
    • What happens when many people appear to have a duty to act?