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Cards In This Set
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Contents
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Contents
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 |
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Negative Duties
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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. |
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Liability for Omission to Act
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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. |
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Laws and Courts Impose Liability
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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. |
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To s.6 of the Road Traffic Act 1988
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Failing to provide a specimen of breath when requested
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Section 1(1) of the Children and Young Persons Act 1933
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Wilfully neglecting a child for whom you are responsible contrary to this given section
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Offences By Omission Include
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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 |
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4.1.2 Was the defendant under a duty to act?
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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. |
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Lord Coleridge CJ in Instan [1893].
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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. |
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What Duty one ows
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-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 ? |
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Moral v Legal Duty
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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. |
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Lewin v CPS [2002] EWHC Crim 1049
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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 |
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Scope of a person's duty
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Scope of a person's duty
Parents towards child depends and are different towards a -young child -adult child |
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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 |
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Pittwood (1902) 19 TLR 37 Taunton Assizes:
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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 |
