Omissions

In English Law, there is no general duty to help someone in trouble. So there is usually no criminal liability for 'failure to act'

However there are 5 exceptional circumstances where a person can commit a crime by failing to act BECAUSE they have a duty of care.

1. Special relationships

Only two special relationships within the family

Parental duty to child - Gibbins had such a duty in R v Gibbons and Proctor 1918

Duty between spouses - R v Smith 1979

2. Voluntary assumption of care

Anyone who chooses to care for a person on a regular basis assumes a voluntary duty of care. This is what Proctor had done in R v Gibbons and Proctor

R v Stone & Dobinson raised important issues - are we under a duty to act in relation to anyone who stays in our home? What about short term visitors?

3. Contractual duty to act

If a contact of employment specifies certain obligations, failure to comply can lead to criminal liability. This could arise in the contracts of... medical staff, emergency service members, lifeguards, teachers etc...

R v Pittwood - man employed by railway company to operate level crossing, opened the gate but failed to close it. Vehicle passed through and was struck by a train, vehicle driver was killed. Convicted of manslaughter and received lengthy prison sentence.

4. Statutory duty to act

Duties are often laid down in statute.

A failure to carry out such duties incurs criminal liability.

Examples of statutory duties: Drivers must stop at red lights (Road Traffic Act)

5. D creates a dangerous situation

Failing to prevent or minimise the harmful consequences of your own actions.

R v Miller - Charged with arson. Slept in a house while smoking, mattress caught fire. Went to sleep in another room, did not put the fire out. Guilty of criminal damage by omission.

Limited availibility of omissions

Until recently, omissions were only available for serious criminal offences.

They were not available for assault and battery.

However, Fagan v MPC 1969 - courts used the idea of a continuing act.

R v Santana-Bermudez 2003 (dangerous situation) extended the use of omissions to include ABH

Is there a need for a good samaritan law?

There is concern that citizens ignore people who need help rather than get involved.

In France and Holland the law requires people to help individuals in difficulty. A good samaritan law might help develop neighbourliness in society.

However, could be problems as to...

WHEN a duty is imposed

Could be too dangerous for D to rescue V

D's intervention could make matters worse

Would there be a min/max age before this duty could be imposed?

Are large numbers of onlookers liable?