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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
- 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
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.
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)
The 5 common law duty to act situation where the law recognises that criminal liability must flow from omissions (failure to act)
- Parent and child
- Position of Office
- Voluntary assumption of care
- Creating a dangerous situation
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
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
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
Duty through Voluntary assumption of care
- Agreeing to look after someone.
- Stone V Dobbinson
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
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.
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
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
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
Duty arising under contract cases
- 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
- Anesthetist fails to notice that a breathing tube has become disconnected during an operation and v dies
- Convicted of manslaughter
Duty arising from a relationship
- Gibbins and Procter
- Harris and Harris
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
Harris and Harris
- Parents refused to allow Drs to treat diabetic daughter with insulin and she died
- Convicted of manslaughter
- 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
Duty arising from voluntary assumption cases
- Stone and Dobbinson
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
- 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
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
- 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
- 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
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
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
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
- 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
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?