The two general elements required for the commission of a criminal offence:
- Actus Reus-guilty act
- Mens Rea- guilty mind
Actus Reus non facit reum nisi mens sit rea.
Both elements must be proved beyond all reasonable doubt by the P, as all persons are presumed to be innocent until proven guilty, proven in Woolmington 1935.
Conduct must also be voluntary- Bratty 1963, Mitchell 1983
Types of Actus Reus
- Conduct crimes e.g. dangerous driving
- Result crimes e.g. death by dangerous driving
- State of Affairs- AR consists of being rather than doing eg. Larsonneur 1933.
Omissions are failures to act. It has become clear that in some circumstances it is appropriate to punish individuals whose failure to act similarly causes a prohibited consequence.
There is no general duty on people to help strangers in distress. There may well be a moral obligation to be a Good Samaritan, but there is no legal one.
Comission by Omission: The Exceptions.- A person can only be criminally liable if they have failed to act when under a legal duty to do so and the crime is capable of being committed by omission. Aside from the obvious separation of powers issue, critics argue that the problem with judges creating duties is that it is reactive only and so the law can only develop if a case comes to court. Currently there are 6 categories identifying when D is under a duty to act.
Statutes impose duties in a wide variety of situations making it an offence to fail to do something, often imposing liability in the form of SL with the justification being the greater food of society.
s.6 Road Traffic Act 1988: it is an offence if a driver fails to provide a breath sample for analysis.
Some statutory duties have been imposed because of the difficulty of proving an offence. This was reason behind introducing:
Causing or allowing the death of a child or vulnerable adult under the Domestic Violence, Crime and Victims Act 2004. All members of the household are liable for failure to protect the child. (Baby P, Shannon Matthews)
2.. A Contractual Duty
When a failure to fulfill a contract is likely to endanger lives, the law will impose a duty to act. The duty is owed to anyone who may be affected, not just the other parties to the contract.
D was the signalman of a railway crossing and had opened the gate but forgot to close it when he went to lunch. A person was then killed by an oncoming train.
D owed DOC to users of the crossing and any others dependent on his proper performance of the contract not just a DOC to his employer.
(Adomako 1994, Singh 1999)
3. Duty because of a relationship
The closer the relationship, the more likely there will be a duty.
Gibbons and Proctor 1918
G & P deliberately starved g's 7 year old daughter and G buried her in the brickyard.G & P were convicted of murder. G owed DOC as father and P had undertaken DOC. Their omission was deliberate so this equalled intention of murder.
D was the mother of an 18 yr old girl who died during childbirth. During labor she was taken to her stepfather's house but mother omitted to obtain the assistance of a midwife and her daughter died. There was no evidence the mother had the menas to pay midwife and mother was legally bound to get help. D was NG of manslaughter as there was no DOC towards 18yr old.
BUT- Chattaway 1922-Where a child continues to live and is dependent upon their parents after becoming an adult there may be a DOC.
4. A Duty which has been voluntarily assumed
This may be an express duty, but is more common to be implied through conduct. If you stop doing this without making provisions for the oerson and the subsequently die, you may be criminally liable.
D moved in with her elderly aunt who became ill and was unable to care for herself or summon help. D was aware of condition but did not give her any food or seek medical assistance but continued to eat her food. The aunt died and D was convicted of mans.
Stone and Dobinson 1977
Stone and Dobinson lived together. S's sister came to live with them, she was mentally ill and had anorexia. Sister was confined to bed and died in horrific conditions. D was ineffectual and inadequate and had tried to help on one occasion but failed to find a doctor.
Their gross neg mans conviction was upheld.
5. A Duty through one's official position/public d
This applies to police officers who are under a duty to preserve the Queen's peace, prevent crime and apprehend suspected offenders.
D was a police officer who was on duty. He saw V being thrown out of a nightclub about 30 yrds from where he was standing. Then there was a fight in which 3 men kicked V to death. D took no steps to intervene or to summon help. When the fight was over, D left the scene. He was convicted of misconduct in a public officer; wilfully and without reasonable excuse neglecting to perform his duty. It is likely that D was not charged with muder because of causation issues.
other example of Jordan Lyon
6. Creating a dangerous situation
Where D without the MR initially does an act which creates a dangerous situation then when becomes aware of it fails to take such steps within his power to prevent or minimise harm, may be criminally liable.
Miller 1983- D was squatting in a house and woke to find his cigarette had set fire to the mattress. He did nothing to extinguish the fire and moved to another room. £800 damage was caused. His conviction was upheld as his inadvertent creation of a dangerous situation imposed a duty on him to minimise that danger. It was the failure to take reasonable steps to rectify it was what made him G.
This principle is endorsed by Draft Criminal Code 1989.
Santana-Bermudez 2003- V when searching D asked if he had any needles and he said 'No' but D was pricked by a needle. D's failure to inform her of the needle- G of s.47 ABH.
Evans 2009- Evans lived with her half sister, V. D gave some heroin to V who self injected and overdosed. D and mother failed to contact emergency services and V died. G of gross neg mans for failing to rectify a dangerous situation D created.
Released from a duty to act
Courts have been troubled with the issue whether once D has undertaken a duty or had a duty imposed on him, may he be released from it.
D's wife had given birth to a still born and hated doctors so wouldn't allow D to call one. She finally gave permission but it was too late and she died. D was charged with gross neg mans.
D acquitted as jury was unable to agree at what point it would have been appropriate to avoid his wife's wishes.
When a competent patient gives notice that they wish life preserving treatment to be discontinued, anyone responsible up to that point for providing such treatment ie. doctors would be obliged to respect that notice.
Cessation of Duty to Act
Where discontinuance of treatment is in the best interests of the patient then this is not an omission that can from the AR of an offence.
Tony Bland was left in PVS but not brain dead for over 3 years after the Hillsborough disaster and had very little hope of recovery. The hospital applied to judicial permission to discontinue treatment. HL held it was permissable to do so and considered sanctity and quality of life. The discontinuing of treatment was in the best interests of Bland. HL was careful to characterise the withdrawal of life support as an omission as opposed to actively switching off the machine. This does not provide authority for euthanasia eg Harold Shipman.
Pretty 2001- Pretty suffered from motor neurone disease and applied to the courts for a declaration that if her husband assisted her to commit suicide he would not be prosecuted. Request was denied by HL and EctHR.
Re:A 2000- CA confirmed that a surgical procedure to seperate twins was postive act not omission. Doctors had AR and MR of murder but would be able to rely on defence of necessity.
Comments and Reforms
Some critics suggest the introduction of the Good Samaritain law. However there are serious moral and practical obligations.
- Definition of when it would be easy for D to attempt a rescue.
- Most citizens pay through taxes for highly trained and well-equipped professional to watch out and protect.
- Possibility that D may misjudge the situation and either fail to attempt a rescue or attempt a dangerous rescue.
- Possible imposition of liability on large numbers of people.
Currently, it is not entirely clear when a duty should be imposed so that an omission is again sufficient for the AR of an offence as facts vary in each case. This means the law is always capable of expansion eg Khan and Khan 1998. However too much growth could make the law too uncertain and difficult for juries to comprehend.
The law of omission has largely been developed through common law which reaches where legislation misses but boundaries are wide e.g Gibbons and Proctor 1918 what if P only stayed on weekends, would she still be liable?