Ch4, Actus Reus: Omissions


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4.1 Imposition of liability for an omission to act
4.2 Duty to act under the common law
4.3 Distinguishing between act and omission
4.4 New categories of duty
4.5 The ‘circumstances’ element of the actus reus
Negative Duties
 
The conduct element of the actus reus usually
requires proof of a positive act on the part of the
defendant.

Although it could be said that we owe
negative duties to others such as not to kill them, not to
injure them and not to steal from them, there is no
general liability for failure to act under the common
law of England and Wales.

A stranger, for example,
would not incur criminal liability for watching
somebody drown in a swimming pool even if that
person could have been saved with very little effort on
the stranger’s part.
Liability for Omission to Act
 
4.1 Imposition of liability for an omission to act
A crime can be committed by omission, but there can be no omission in law in the absence of a duty to act.
Laws and Courts Impose Liability
 
There are circumstances where the law does impose on a person a duty to act. Sometimes
a statute will specifically state that the actus reus of an offence is committed by omission
and sometimes the courts will determine that a particular offence may be committed by
omission even though the definition of that offence does not specifically provide for this.
to s.6 of the Road Traffic Act 1988
 
Failing to provide a specimen of breath when requested

section 1(1) of the Children and Young Persons Act 1933
 
Wilfully neglecting a child for whom you are responsible contrary to this given section
Offences By Omission Include
 
4.1.1 Is the offence capable of being committed by omission?

Include
-murder (Gibbins and Proctor [1918]) and --- -manslaughter (both common law offences)
-assault and
-batter (both were and possibly are C/L)
SEE ALSO
-Fagan v MPC [1969] --is the authority for the proposition that the offence of assault cannot be committed by omission but
-BUT SEE ALSO
-Santana Bermudez [2004]

NOTE: In both these above cases (Fagan and Santana) the D had created the dangerous situation but failed to take steps to avoid it

-See ALSO
-Miller [1983]
urder
4.1.2 Was the defendant under a duty to act?
 
4.1.2 Was the defendant under a duty to act?
-Moral Duty and
-Legal Duty

Lord Coleridge CJ in Instan [1893].

It would not be correct to say that every moral obligation involves a legal duty; but every
legal duty is founded on a moral obligation. A legal common law duty is nothing else than
the enforcing by law of that which is a moral obligation without legal enforcement.

Lord Coleridge CJ in Instan [1893].
 
4.1.2 Was the defendant under a duty to act?
-Moral Duty and
-Legal Duty

Lord Coleridge CJ in Instan [1893].

It would not be correct to say that every moral obligation involves a legal duty; but every
legal duty is founded on a moral obligation. A legal common law duty is nothing else than
the enforcing by law of that which is a moral obligation without legal enforcement.
What Duty one ows
 
-Duty is not onerous one

-D is Not to put his own life to danger but the court will see

whether a D discharged that existed duty to a reasonable standard

-The standard of reasonability depends upon the circumstances in each case

Stranger as against a lifeguard appointed

Shark, only by calling for help
not to risk his own life

The court will judge how a reasonable lifeguard would have acted in that particular case/circumstances

Therefore even if a defendant thought he was doing his best, if that ‘best’ was an ‘incompetent best’ it is unlikely to have been sufficient to discharge his duty.
SEE
(STONE AND DOBINSON ), THE AUTHORITY ?
Moral v Legal Duty
 
There is a difference, however, between what we might term, ‘moral’ duty to act and a
‘legal’ duty to act.

No legal sanction is imposed for breach of a moral duty – although there
may be social opprobrium – although many legal duties could be said to have arisen from moral ones.
Lewin v CPS [2002] EWHC Crim 1049
 
Lewin v CPS [2002] EWHC Crim 1049

a decision by the Crown Prosecution Service not to prosecute was upheld
-intoxicated friend
-left in car in Spain
-summer and hot
-friend died

Khan and Khan
Scope of a person's duty
 
Scope of a person's duty
Parents towards child depends and are different towards a
-young child
-adult child
Duty Under Contract


Pittwood (1902) 19 TLR 37 Taunton Assizes
 
4.2 Duty to act under the common law

a) There is a duty arising out of a contract

Pittwood (1902) 19 TLR 37 Taunton Assizes:
-crossing keeper
-for Somerset and Dorset Railway
-Between 7 am and 7 pm duty to shut the gate
-whenever a training was passing
-one afternoon
-hay cart
-causing death of one person and
- serious injury of another
-charged and convicted of manslaughter
-explain duty n responsibility out of contract
b) D has inadvertently created a dangerous situation, becomes aware of it, but fails to take steps to rectify it
Miller [1983] 2 AC 161 HL:
-D was a Tramp
-squatting in an empty house
-fell asleep on mattress
-did not extinguish his cigarette
-found mattress on fire
-moved to the next room and went back to sleep
-house caught fire and
-800 pond worth of damage was caused
-convicted of arson
-and conviction upheld up to HL
-sections 1(1) and 1(3) of the
-Criminal Damage Act 1971
-Lord Diplock, Read what he said

c) There is a duty s arising out of the relationship itself

-Husband and wives to each other
-parents owe duty to their children
-The Children and Young Persons Act (above)
-children and parents to conversely each other

(see
Gibbins and Proctor [1918]; cf Instan [1893]).

-Gibbins and Proctor confirms murder is an offence that can be committed by omission
d) A person has assumed the duty to care for another
(Per Brett J in R v Nicholls (1875) 13 Cox 75)

If a grown up person chooses to undertake the charge of a human creature helpless either
from infancy, simplicity, lunacy or other infirmity, he is bound to execute that charge without…
negligence. (Per Brett J in R v Nicholls (1875) 13 Cox 75)

Stone and Dobinson [1977] 1 QB 345:

-Stone 67, almost blind, partially deaf, low intelligence
-lived with Dobinson (43), inadequate and ineffectual
-and his mentally subnormal son (social worker occasionally visited him
-Fanny, Stone's younger sister came and started to live with them
-she suffered from anorexia nervosa
-Ds tried to find some doctor
-Mrs Dobinson and a neighbor washed her
-progressively more ill and finally
-died

Per Geoffrey Lane LJ:

-The jury were entitled to find that the duty had been assumed
Pittwood (1902) 19 TLR 37 Taunton Assizes:
 
a) There is a duty arising out of a contract

Pittwood (1902) 19 TLR 37 Taunton Assizes:
-crossing keeper
-for Somerset and Dorset Railway
-Between 7 am and 7 pm duty to shut the gate
-whenever a training was passing
-one afternoon
-hay cart
-causing death of one person and
- serious injury of another
-charged and convicted of manslaughter
-explain duty n responsibility out of contract
Miller [1983] 2 AC 161 HL:
 
b) D has inadvertently created a dangerous situation, becomes aware of it, but fails to take steps to rectify it
Miller [1983] 2 AC 161 HL:
-D was a Tramp
-squatting in an empty house
-fell asleep on mattress
-did not extinguish his cigarette
-found mattress on fire
-moved to the next room and went back to sleep
-house caught fire and
-800 pond worth of damage was caused
-convicted of arson
-and conviction upheld up to HL
-sections 1(1) and 1(3) of the
-Criminal Damage Act 1971
-Lord Diplock, Read what he said
Gibbins and Proctor [1918]; cf Instan [1893]).
 
c) There is a duty s arising out of the relationship itself

-Husband and wives to each other
-parents owe duty to their children
-The Children and Young Persons Act (above)
-children and parents to conversely each other

(see
Gibbins and Proctor [1918]; cf Instan [1893]).

-Gibbins and Proctor confirms murder is an offence that can be committed by omission
Per Brett J in R v Nicholls (1875) 13 Cox 75)
 

d) A person has assumed the duty to care for another
(Per Brett J in R v Nicholls (1875) 13 Cox 75)

If a grown up person chooses to undertake the charge of a human creature helpless either
from infancy, simplicity, lunacy or other infirmity, he is bound to execute that charge without…
negligence. (Per Brett J in R v Nicholls (1875) 13 Cox 75)

Stone and Dobinson [1977] 1 QB 345:

-Stone 67, almost blind, partially deaf, low intelligence
-lived with Dobinson (43), inadequate and ineffectual
-and his mentally subnormal son (social worker occasionally visited him
-Fanny, Stone's younger sister came and started to live with them
-she suffered from anorexia nervosa
-Ds tried to find some doctor
-Mrs Dobinson and a neighbor washed her
-progressively more ill and finally
-died

Per Geoffrey Lane LJ:

-The jury were entitled to find that the duty had been assumed
Stone and Dobinson [1977] 1 QB 345
 

d) A person has assumed the duty to care for another
(Per Brett J in R v Nicholls (1875) 13 Cox 75)

If a grown up person chooses to undertake the charge of a human creature helpless either
from infancy, simplicity, lunacy or other infirmity, he is bound to execute that charge without…
negligence. (Per Brett J in R v Nicholls (1875) 13 Cox 75)

Stone and Dobinson [1977] 1 QB 345:

-Stone 67, almost blind, partially deaf, low intelligence
-lived with Dobinson (43), inadequate and ineffectual
-and his mentally subnormal son (social worker occasionally visited him
-Fanny, Stone's younger sister came and started to live with them
-she suffered from anorexia nervosa
-Ds tried to find some doctor
-Mrs Dobinson and a neighbor washed her
-progressively more ill and finally
-died

Per Geoffrey Lane LJ:

-The jury were entitled to find that the duty had been assumed
Per Geoffrey Lane LJ:
 

d) A person has assumed the duty to care for another
(Per Brett J in R v Nicholls (1875) 13 Cox 75)

If a grown up person chooses to undertake the charge of a human creature helpless either
from infancy, simplicity, lunacy or other infirmity, he is bound to execute that charge without…
negligence. (Per Brett J in R v Nicholls (1875) 13 Cox 75)

Stone and Dobinson [1977] 1 QB 345:

-Stone 67, almost blind, partially deaf, low intelligence
-lived with Dobinson (43), inadequate and ineffectual
-and his mentally subnormal son (social worker occasionally visited him
-Fanny, Stone's younger sister came and started to live with them
-she suffered from anorexia nervosa
-Ds tried to find some doctor
-Mrs Dobinson and a neighbor washed her
-progressively more ill and finally
-died

Per Geoffrey Lane LJ:

-The jury were entitled to find that the duty had been assumed
Lord Diplock said:
 
Lord Diplock said:
I see no rational ground for excluding from conduct capable of giving rise to criminal
liability conduct which consists of failing to take measures that lie within one’s power to
counteract a danger that one has oneself created, if at the time of such conduct one’s
state of mind is such as constitutes a necessary ingredient of the offence. I venture to
think that the habit of lawyers to talk of ‘actus reus’, suggestive as it is of action rather than
inaction, is responsible for any erroneous notion that failure to act cannot give rise to
criminal liability in English law.
Acts Or Omissions
 
4.3 Distinguishing between act and omission

Whether we term certain events ‘acts’ or ‘omissions’ may be both flexible in practice and
virtually insoluble in theory: for example, does a hospital nurse who decides not to replace
an empty bag for a drip feed make an omission, whilst a nurse who switches off a ventilator
commits an act? It would seem wrong that criminal liability or non-liability should turn
on such fine points, which seem incapable of reflecting any substantial moral distinctions
in a context where the preservation of life is generally paramount.

– the House of Lords in Airdale NHS Trust v Bland [1993]
 
Authority on omission
Comatose patient
removal of nasogastric tube
-artificial nutrition and hydration having been classified as medical treatment

– the House of Lords in Airdale NHS Trust v Bland [1993]
-comatose patient
-Removal of nasogastric tube is an Omission
-artificial nutrition and hydration classified as medical treatment

Re: A (Conjoined twins: Surgical Separation ) [2001]

-surgery to separate the twins was held an act
-distinguished although not at first glance
-therefore trial judge in A thought that reasoning in Bland could be applied to A but CA did not agree
-the blood supply received by the weaker was not a medical treatment
-the the operation to separate them would be a positive act
-Although Court of Appeal agreed that surgery could go ahead without legal consequences for the doctors it was on different grounds.

In order to allow the patient to die

In NHS Trust A v M, NHS Trust B v. H [2001] withdrawal of nutrition and hydration from a patient in a persistent vegetative state would not breach Article 2 of the EC on HR

Similar problems have arisen with handicappbed reonates as in Arther [1981] and Re B ( a minor ) [1981]

See Smith and Hogan, PP. 87-88
-where patient is competent and refused treatment, that refusal must be honoured
-treat against wishes-no matter how benevolent the motive-would amount to an assault or worse

Ms B v An NHS Hospital [2002] , Ms B sought and obtained declaration
-refusal to disconnect life support by the doctor was an unlawful trespass (assault and /or battery)

R v Cox [1992],
-Dr Cox's patient was dying
-patient with approval of family begged to give her lethal injection
-cremated before this conduct came to light
-convicted of attempted murder
-However, a doctor who persons a positive act to end a patient's life will be guilty of murder even where patient has requested this.


Re: A (Conjoined twins: Surgical Separation ) [2001]
 
Re: A (Conjoined twins: Surgical Separation ) [2001]

-surgery to separate the twins was held an act
-distinguished although not at first glance
-therefore trial judge in A thought that reasoning in Bland could be applied to A but CA did not agree
-the blood supply received by the weaker was not a medical treatment
-the the operation to separate them would be a positive act
-Although Court of Appeal agreed that surgery could go ahead without legal consequences for the doctors it was on different grounds.

In order to allow the patient to die
In NHS Trust A v M, NHS Trust B v. H [2001]
 
In NHS Trust A v M, NHS Trust B v. H [2001] withdrawal of nutrition and hydration from a patient in a persistent vegetative state would not breach Article 2 of the EC on HR

Similar problems have arisen with handicappbed reonates as in Arther [1981] and Re B ( a minor ) [1981]

See Smith and Hogan, PP. 87-88
-where patient is competent and refused treatment, that refusal must be honoured
-treat against wishes-no matter how benevolent the motive-would amount to an assault or worse

Ms B v An NHS Hospital [2002] , Ms B sought and obtained declaration
-refusal to disconnect life support by the doctor was an unlawful trespass (assault and /or battery)

R v Cox [1992],
-Dr Cox's patient was dying
-patient with approval of family begged to give her lethal injection
-cremated before this conduct came to light
-convicted of attempted murder
-However, a doctor who persons a positive act to end a patient's life will be guilty of murder even where patient has requested this.

Ms B v An NHS Hospital [2002]
 
Ms B v An NHS Hospital [2002] , Ms B sought and obtained declaration
-refusal to disconnect life support by the doctor was an unlawful trespass (assault and /or battery)

R v Cox [1992],
-Dr Cox's patient was dying
-patient with approval of family begged to give her lethal injection
-cremated before this conduct came to light
-convicted of attempted murder
-However, a doctor who persons a positive act to end a patient's life will be guilty of murder even where patient has requested this.
R v Cox [1992],
 
R v Cox [1992],
-Dr Cox's patient was dying
-patient with approval of family begged to give her lethal injection
-cremated before this conduct came to light
-convicted of attempted murder
-However, a doctor who persons a positive act to end a patient's life will be guilty of murder even where patient has requested this.
Court of Appeal in Re: A (Conjoined twins: Surgical separation) [2001]
 
distinguished by
Airdale NHS Trust v Bland [1993]
that was comatose patient and removal of nasogastric tube- as omission

here

Conjoined twins: Surgical Separation [2001]
-Surgery to separate the twins was an act
Can an existing duty cease?
 
Can an existing duty cease?
Another issue which has fallen to be considered by the courts is under what circumstances,
if at all, can an existing duty to act be said to have ceased?
(see Adomako [1995]).
 
-doctor owe duty to patient
-if does not act to a reasonable standard
-results in injury or death
-doctor might be criminally liable-
-provided other elements are established
-scope of this duty depends on circumstances of each individual case

Airdale NHS Trust v Bland [1993]
-treament that artificially prolongs life is no longer appropriate where it has no therapeutic purpose.

LORD GOFF Said:
Khan and Khan [1998]
 
4.4 New categories of duty

Khan and Khan [1998]
-Drug dealer supply heroin to victim
-ingested the drug
-victim fell into coma,
-Ds did not obtain medical assistance
-V died
-CA quashed conviction of manslaughter

Swinton LJ commented
Extension --------

Singh (Gurphal) [1999]

-The Court of Appeal held as to whether a situation gave rise to a duty to act was one of law for the judge to determine

Willoughby [2004] EWCA Crim 3365
- held as in Khan
Swinton LJ commented:
 
quashed. Swinton LJ commented:
To extend the duty to summon medical assistance to a drug dealer who supplies heroin to
a person who subsequently dies on the facts of this case would undoubtedly enlarge the
class of persons to whom on previous authority, such a duty may be owed. It may be correct
to hold that such a duty does arise…Unfortunately, the question as to the existence or
otherwise of [any such] duty…was not…at any time considered by the judge and the jury
was given no direction in relation to it.
In Singh (Gurphal) [1999]
 
In Singh (Gurphal) [1999] the Court of Appeal held that the question as to whether a situation
gave rise to a duty to act was one of law for the judge to determine.
Following these two cases it was unclear whether the position was that the issue of
whether there was a duty was to be left to the jury, the judge having ruled that there was
evidence capable of establishing that there was such a duty (Khan) or whether it was purely
a question of law to be determined by the judge (Singh).
Willoughby [2004] EWCA Crim 3365
 
In Willoughby [2004] EWCA Crim 3365 the Court of Appeal held that it was the former. See
Chapter 7.
Circumstance Element
 
4.5 The ‘circumstances’ element of the actus reus

For example, the circumstances element of the actus reus of the
offence of criminal damage contrary to section 1(1) of the Criminal Damage Act 1971 is that
what is destroyed or damaged must be ‘property belonging to another’.
State of affairs as an actus reus
 
State of affairs as an actus reus
Occasionally the actus reus of an offence is the state of affairs rather than the conduct of the
defendant. These offences are called ‘state of affairs’ or ‘situational’ crimes and, arguably,
can result in strange and unfair results. See Smith and Hogan, pp.73–75.

Larsonneur (1933) 24 Cr App R 74.
 
Larsonneur (1933) 24 Cr App R 74.
-Ms Larsonneur, a French citizen
-brought to UK from Ireland by Irish Police
-on disembarking she was arrested and
-charged under Aliens Order 1920
h
Winzar v Chief Constable of Kent (1983) The Times, 28 March
-D was drunk and slumped
-found in corridor of hospital
-police was called who
-removed him from the corridor to the street and
-thereupon charged whim with offence of
-having found drunk on highway contrary to the
-Licensing Act 1872
Winzar v Chief Constable of Kent (1983)
 
Winzar v Chief Constable of Kent (1983) The Times, 28 March
-D was drunk and slumped
-found in corridor of hospital
-police was called who
-removed him from the corridor to the street and
-thereupon charged whim with offence of
-having found drunk on highway contrary to the
-Licensing Act 1872
Summary
 
Summary
The conduct element of the actus reus of an offence can include an act, an omission or a state
of affairs. In the overwhelming majority of cases it will be the defendant’s act which satisfies
the conduct element of the actus reus. Occasionally, however, it falls to be decided whether a
defendant’s omission to act will satisfy the conduct element of the actus reus. In this regard,
it must be determined first of all whether or not the particular offence is capable of being
committed by omission. If that is the case, the next issue to be determined is whether the
defendant was under a duty to act. There are a number of circumstances where it has been
established that a duty to act will lie, but note that the category of duty is not closed. Note
also that if the defendant was not under such a duty there can be no criminal liability.
Very occasionally, a state of affairs might result in a defendant being found guilty of a
criminal offence. These offences are sometimes known as ‘situational offences’ and tend to
be treated with great caution by the courts, although there are exceptions such as those
outlined above. Many offences require the existence of certain specified circumstances and
you will find the relevant circumstances in the definition of the offence you are considering.

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