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Ch4, Actus Reus: Omissions

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Side ASide B
Contents
Contents4.1 Imposition of liability for an omission to act4.2 Duty to act under the common law 4.3 Distinguishing between act and omission4.4 New categories of duty 4.5 The ‘circumstances’...
Negative Duties 
The conduct element of the actus reus usuallyrequires proof of a positive act on the part of thedefendant.Although it could be said that we owenegative duties to others such as not...
Liability for Omission to Act 
4.1 Imposition of liability for an omission to actA 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. Sometimesa statute will specifically state that the actus reus of an offence is committed by omissionand...
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...
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...
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...
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...
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...
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...
Scope of a person's duty
Scope of a person's dutyParents 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 lawa) There is a duty arising out of a contractPittwood (1902) 19 TLR 37 Taunton Assizes:-crossing keeper-for Somerset and Dorset Railway-Between 7...
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...
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...
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...
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...
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...
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...
Lord Diplock said:
Lord Diplock said:I see no rational ground for excluding from conduct capable of giving rise to criminalliability conduct which consists of failing to take measures that lie within...
Acts Or Omissions 
4.3 Distinguishing between act and omissionWhether we term certain events ‘acts’ or ‘omissions’ may be both flexible in practice andvirtually insoluble in theory: for example,...
– 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...
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...
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...
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...
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...
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 hereConjoined twins: Surgical Separation [2001]-Surgery...
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...
Khan and Khan [1998]
4.4 New categories of dutyKhan 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...
Swinton LJ commented:
quashed. Swinton LJ commented:To extend the duty to summon medical assistance to a drug dealer who supplies heroin toa person who subsequently dies on the facts of this case would undoubtedly...
In Singh (Gurphal) [1999]
In Singh (Gurphal) [1999] the Court of Appeal held that the question as to whether a situationgave rise to a duty to act was one of law for the judge to determine.Following these two...
Willoughby [2004] EWCA Crim 3365
In Willoughby [2004] EWCA Crim 3365 the Court of Appeal held that it was the former. SeeChapter 7.
Circumstance Element 
4.5 The ‘circumstances’ element of the actus reus For example, the circumstances element of the actus reus of theoffence of criminal damage contrary to section 1(1) of the...
State of affairs as an actus reus
State of affairs as an actus reusOccasionally the actus reus of an offence is the state of affairs rather than the conduct of thedefendant. These offences are called ‘state of affairs’...
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 hWinzar...
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...
Summary 
SummaryThe conduct element of the actus reus of an offence can include an act, an omission or a stateof affairs. In the overwhelming majority of cases it will be the defendant’s act...


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