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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
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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
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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.
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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)
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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
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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
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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
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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
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Duty through Voluntary assumption of care
- Agreeing to look after someone.
- Stone V Dobbinson
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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
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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.
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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
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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
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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
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Duty arising under contract cases
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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
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Adamoka
- Anesthetist fails to notice that a breathing tube has become disconnected during an operation and v dies
- Convicted of manslaughter
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Duty arising from a relationship
- Gibbins and Procter
- Harris and Harris
- Smith
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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
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Harris and Harris
- Parents refused to allow Drs to treat diabetic daughter with insulin and she died
- Convicted of manslaughter
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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
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Duty arising from voluntary assumption cases
- Stone and Dobbinson
- Instan
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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?
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