Crime Lectures Transcript
Criminal liability for omissions
Track/ Slide 1
In this lecture we will consider the general position under the criminal law of liability for
omissions, the reasons for this rule and the requirements for the imposition of liability.
Track/Slide 2
The general principle in the criminal law is that liability for omissions is the exception,
rather than the rule. This is illustrated by a classic example of an omission given by
Stephen in the digest for criminal law 1887. A sees B drowning and is able to save him by
holding out his hand but does nothing and B drowns. A has not committed an offence.
Track/Slide 3
There are two main reasons why an omission is an exception to the rule. The first is an
unwillingness to infringe an individual’s personal freedom and force him to play the good
Samaritan. The second is the difficulty in establishing that a person has by his omission
caused the harm required for the particular offence. With regard to the causation
difficulties consider for example the situation given by A and B in Stephen’s digest. If A
does nothing can it be said that A has caused B’s death? Also if there 50 people watching
B drowned would they all be liable for B’s death?
We will now look at the situations where criminal liability for omission will be imposed.
Track/Slide 4
Liability will only be imposed when 2 questions are answered in the affirmative:
1. is the offence capable of being committed by omission?
2. was the defendant under a legal duty to act?
Track slide 5
With regard to whether the offence is capable of being committed by omission it is clear
that not all offences are capable of being committed by omission. For example in Fagan
it is evident that an assault cannot be committed by omission.
Track/Slide 6
A duty may arise at common law or under statute. A common law duty may be
contractual or arise through a special relationship, or may be a voluntarily assumed duty
or where the defendant inadvertently creates a dangerous situation whereby life or
property are at risk to liability for a common law misdemeanor.
Track/ Slide 7
The classic example of a contractual relationship can be seen in the employer/employee
relationship and is illustrated by the case of Pitwood. In that case the defendant was an
employee of a railway company who was employer, inter alia, to ensure that the gate was
shut on the level crossing when the train was due to pass. He failed to close the gate with
the result that a road user was hit by a train. He was convicted of gross negligence
manslaughter. In addition to his duty to his employer he would also owe a duty to other
road users who would be affected by his negligence.
Track/Slide 8
Doctors and other medical practitioners are under a contractual duty towards their
patients but are under no absolute duty to prolong the patient’s life regardless of the
circumstances.
Track/Slide 9
A duty may also arise between a special relationship between the defendant and the
victim. Close family relationships may give rise to such a duty. For example between
parent and child in the cases of Senior and Gibbons and Proctor. In the latter case
involved liability for murder as the defendant withheld food from his daughter with
malice aforethought. This special relationship extends to those in loco parentis.
Track/Slide 10
Where a duty arises between parent and child it is unclear exactly how long it lasts. For
example does it last until the child is 18 or leaves full time education? In Shepherd it was
held that there was no duty to be owed by a parent to her ‘entirely emancipated’ 18 year
old daughter. It is also unclear as to whether an adult child owes a duty to an elderly
parent.
Track/Slide 11
It is thought likely that a duty exists between a husband and wife although there is no
clear authority on the matter. In Bonnyman a duty was imposed on the husband but this
not a great authority as he was also his wife’s doctor. If there is such a duty it would
probably end on separation.
Track/Side 12
It is unclear as to whether a special relationship exists between cohabitees. There is no
special relationship between siblings.
Track/Slide 13
Voluntary assumption of duty. Where a defendant voluntarily assumes the care of
another who cannot care for themselves adequately for example because he is sick,
handicapped or is a child and the latter becomes reliant upon the defendants assistance
the defendant will owe him a duty. You should read the cases of Nicholls, Instan and
Stone & Dobinson.. It is worth noting that the imposition of a duty in these
circumstances may be criticized It is the case that the d may be better off he did nothing
rather than provide inadequate assistance. Is it fair to a d that the duty imposed
retrospectively by the courts so at the time he provides assistance he has no way of
knowing that his actions are giving rise to a duty. Also it is unclear how the defendant in
these circumstances can terminate his duty. A duty to act breach of which gives rise to a
common law misdemeanor.
Track/Slide 14
Where the defendant inadvertently creates a dangerous situation whereby life or property
are at risk. The defendant owes a duty only where he realizes that he has created this
dangerous situation. The duty is to take reasonable steps to prevent or reduce
harm/damage to persons or property at risk. The duty arose first in the case of Miller.
The facts of Miller are as follows. A tramp was squatting in an empty house and he fell
asleep one night smoking a cigarette. He awoke and noticed that his mattress had caught
fire. He made no attempt to put out the fire but moved to another room and the fire
spread throughout the house. The defendant was convicted of arson. The defendant had
inadvertently created a dangerous situation by setting fire to the mattress and a duty of
care arose when he realized what he had done. He was then liable for his omission
because he failed to take any steps to remedy the situation. The imposition of such a duty
in this situation is often called the principle of supervening fault. Two matters remain
unclear: whether Miller can be extended i.e. will it apply to where it is the defendant’s
initial omission rather than a positive act which creates a dangerous situation and
secondly it is unclear whether Miler has rendered the continuing act principle established
in the case of Fagan obsolete.
Track/Slide 15
A duty to act, breach of which gives rise to liability for a common law misdemeanor. The
leading case is Dytham. Liability was imposed on a police officer who was on duty and
in uniform who failed to intervene in a fight where someone was killed. Dytham was
held liable for misconduct in a public office. Two points worthy of noting: firstly does it
mean that in certain situations the law requires an act of heroism from the holders of
public office and secondly does this duty avoid the causation difficulties inherent in the
other duty situations?
Track/Slide 16
Statutory duties. Legislation may specially impose duties for failing to act in certain
prescribed circumstances. For example s 6 of the road traffic act 1988 provides that it is
an offence for a driver to provide without reasonable defence a police officer with a
specimen of breath. Parliament appears more willing that the courts to impose a duty to
act. A possible reason is that many statutory offences do not require proof of any harm
caused so the causation difficulties do not arise