Actus Reus: Omissions

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Actus Reus: Omissions

We Omit To Do Everything In The World That Is Not Done. Only Those Of Us Omit In Law Who Are Under A Duty To Act.

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Statute may state specifically that the actus reus of an offence is committed by omission and offences of mere omissions are rarely found at common law.
Eg. s.1(1) of The Children and Young Persons Act 1933 makes it an offence to willfully neglect a child.
But courts can determine that a particular offence may be committed by omission tho the definition does not specifically provide for this. eg. murder- Gibbons and Proctor [1918] 13 CAR 134.
Where statute provides that actus reus is committed by omission, it will be clear that a duty to act has been imposed on a particular class of person.
where it is found that D was under duty to act and unreasonably failed to do so, burden remains on prosecution to prove actus reus and  mens rea
Offences interpreted by the courts as capable of being committed by omission include murder and manslaughter which are common law offences
Gibbins and Proctor [1918]
D and his common law wife failed to feed the man's 7 year-old child, Nelly, and she died from starvation. The woman hated Nelly, and was clearly the moving force.
Held: Where there is the duty to act, failure to do so can lead to liability even for murder if the necessary mens rea is present. The woman was held to be liable because, while the child was not hers, she was living with the man and had accepted his money for food. The courts regarded the parent's duty towards a young child as so self-evident as not to require analysis or authority. At common law a parent has a duty to act for the welfare of his child and, if harm is caused to the child by his failure to act, he may be criminally liable for the resulting harm. Guilty of murder.
An authority for the proposition that the offence of assault cannot be committed by omission
Fagan v MPC [1969] - A policeman was directing the defendant to park his car. The defendant accidentally drove onto the policeman's foot. The policeman shouted at him to get off. The defendant refused to move. The defendant argued at the time of the actus reus, the driving onto the foot, he lacked the mens rea of any offence since it was purely accidental. When he formed the mens rea, he lacked the actus reus as he did nothing.
Held: The driving on to the foot and remaining there was part of a continuing act.
- Santana v Bermudez (2004)
- R v Miller (1983)
Difference between moral duty to act and legal duty to act
No legal sanction is imposed for breach of a moral duty, altho there may be social opprobrium. However, legal duties coulf be said to have arisen from moral ones.
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 dury is nothing else than the enforcing by law of that which is a moral obligation without legal enforcement."
Issue for courts in developing law and legislature is: when should a legal duty be imposed and what should be the scope of any such duty
The boundaries are very unclear
- Evans (2009)
- Khan and Khan
- Lewin v CPS [2002]
Distinction between and act and omission - problems associated with distinguishing between acts and omissions are more likely to arise in the area of medical treatment.
Airdale NHS Trust v Bland [1993]- House of Lords ruled that removal of a nasogastric tube was an omission rather than an act, artificial nutrition and hydration having been classified as medical treatment.
However this was distinguished by Court of Appeal in Re: A (Conjoined twins: Surgical separation) [2001] where the court held that surgery to separate the twins was an act.
- NHS Trust A v M [2001]
- NHS Trust B v H [2001]
- Arthur [1981]
- Re B (minor) [1981]
- R (Burke) v GMC
New Categories of Duty
- Khan and Khan [1998]- 2 drug dealers supplied herion to a person who after ingesting it fell into a coma and after D failed to obtain medical assistance, she died. convicted of manslaughter. Swinton LJ, averred that to extend duty to heroin dealers wld be enlarging the class of persons who owe duty.
- Singh (Gurphal) [1999] CofA 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.
- Willoughby [2004], Rose LJ confirmed that though there may be special cases where duty exists, and where judge may direct jury accordingly, the question of whether a duty was owed by the D to the deceased will usually be a matter for the jury provided there is evidence capable of establishing a duty in law.
- R v Evans (Gemma) [2009] sister alltho didn't call for medical assistance spent the night with her sister after she overdosed on heroin she gave her. Sister dies and she appealed to manslaughter charges disputing her duty of care and arguing that judge had been wrong to leave it to jury to decide whether to extend the category of person by whom and to whom a duty might be owed. CoA dismissed her appeal.
State of affairs of an actus reus
Occasionally, the actus reus of an offence is the state of affairs rather than the conduct of the D. These offences are called 'state of affairs' or 'situational' crimes and can result in strange and unfair results.