Actus Reus - Omissions Elements of Criminal Liability © The Law Bank Elements of Criminal Liability Actus Reus - Omissions 1

Elements of Criminal Liability © The Law Bank Objectives Identify what an omission is Describe how omissions can create criminal liability Apply omissions to case examples 2

Actus Reus - Omissions Elements of Criminal Liability © The Law Bank Starter You can use your books only after you have attempted to answer the questions Quiz, Quiz, Trade You have five minutes to find all 10 question cards and answer them all After each question swap cards and find another partner Make a note of all the answers in your books 3

Actus Reus - Omissions Elements of Criminal Liability © The Law Bank Conventional view Imagine A walks past B, who is drowning in a pond, and fails to help him. Although "A" may have failed to save "B", he did no positive act to cause "B's" death. Normally, the criminal law does not require a person to act to prevent harm or wrongdoing, or prevent a crime being committed. A person does not commit a crime or become a party to it solely because he might reasonably have prevented it. 4

Actus Reus - Omissions Elements of Criminal Liability © The Law Bank Conventional View #2 The conventional view is that there are several offences (such as assaults or battery) which cannot be committed by omission, although see DPP v Santana-Bermudez (2003) 5

Actus Reus - Omissions Elements of Criminal Liability © The Law Bank DPP v Santana-Bermudez (2003) 6 Case Law Omissions – inactivity by D – an omission can amount to actus reus in assualt D injured a woman police officer by allowing her to search him, knowing he had hypodermic needles in his pockets which stabbed her. D denied having any needles or sharps when asked. D was convicted by the Magistrates, but acquitted at Crown Court. On appeal by way of case stated from the Crown Court, prosecutor's appeal was allowed. Principle – here someone created a danger and thereby exposed another to a reasonably foreseeable risk of injury, there was an evidential basis for the actus reus of an assault occasioning actual bodily harm. D had “created a danger by an act … that act was a continuing act”. The risk of injury was foreseeable. Not Guilty but would be now

Actus Reus - Omissions Elements of Criminal Liability © The Law Bank Exceptions There are some instances which constitute an exception to the ‘non-requirement to act convention’ The first is when specified by statute and these examples have an omission in their statutory definition. This type of liability for omissions is called direct liability When not specified by statute, failing to act in a particular way (an omission) will give rise to criminal liability only where a duty to act arises. This is known as a derivative liability All exceptions require a ‘duty’. Parents, nurses, etc., have a duty This sort of duty is exceptional and the criminal law does not ordinarily require a person to be "his brother’s keeper”. 7

Actus Reus - Omissions Elements of Criminal Liability © The Law Bank Duty Arising From Statute 'Direct' liability; examples of offences created by statute that make an omission culpable: –The Children and Young Persons Act 1933 s 1 (as amended) makes omissions culpable by a person over 16 failing to look after a child under 16, so an omission is part of the actus reus of that crime. –Under s170 Road Traffic Act 1988 failing to stop at a road accident is a criminal offence. The omission to stop is part of the actus reus. –Under breathalyser law failing to provide a breath sample or a specimen for analysis s6 Road Traffic Act 1988 is also an crime of omission, and under other sections so is failing to give a name and address. 8

Actus Reus - Omissions Elements of Criminal Liability © The Law Bank Duty Arising From a Special Relationship In addition to the statutory requirement, common law creates a duty on a parent to act for the welfare of his child If harm is caused to the child by his failure to act, he may be criminally liable for the resulting harm, the key example here is Gibbins and Proctor (1918) 9

Actus Reus - Omissions Elements of Criminal Liability © The Law Bank Gibbins and Proctor (1918) 10 Case Law Omissions – duty situations 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. Principle – 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. Guilty of Murder

Actus Reus - Omissions Elements of Criminal Liability © The Law Bank Assumption of Care for Another There is no statutory duty to care or assist a person over the age of 16, but there can be a common law duty However, the common law recognises that a duty may arise in a family relationship, for example where a couple live together as husband and wife or where a child continues to live, and is dependent upon, his parents even after becoming an adult Also, if a person voluntarily undertakes to care for another who is unable to care for himself as a result of age, illness or other infirmity, that person may thereby incur a duty to discharge that undertaking, at least until such time as he hands it over to someone else. 11

Actus Reus - Omissions Elements of Criminal Liability © The Law Bank R v Stone & Dobinson (1977) 12 Case Law Omissions – existence of duty S and D allowed Stone's ill and unstable sister, Fanny, to live in their house. Fanny was suffering from anorexia and her condition deteriorated, until she became bed-ridden. She needed medical help, but none was summoned and she eventually died in squalor, covered in bed sores and filth. Principle – Because they had taken Fanny into their home, they had assumed a duty of care for her and had been grossly negligent in the performance of that duty. The fact that Fanny was Stone's sister was merely incidental to this. Both guilty of manslaughter by gross negligence.

Actus Reus - Omissions Elements of Criminal Liability © The Law Bank Contractual Duty A person may in some cases incur criminal liability through failure to discharge his official duties or contractual obligations. The requisite mens rea, is also required. Key cases – Pitwood The principle in Pitwood would extend to liability for a lifeguard at a swimming pool. 13

Actus Reus - Omissions Elements of Criminal Liability © The Law Bank R v Pitwood (1902) 14 Case Law Omissions – duty of care – under a contract D a level crossing keeper who negligently left open the crossing gate. This led to the death of a carter whose cart was struck by a train. Principle – D had a duty to shut the gate (owed to his employers rather than to the public at large), but it was enough that his negligent failure to act could lead to conviction. Guilty of gross negligence manslaughter.

Actus Reus - Omissions Elements of Criminal Liability © The Law Bank Public Position Requires Action Key case – Dytham 15

Actus Reus - Omissions Elements of Criminal Liability © The Law Bank R v Dytham (1979) 16 Case Law Omissions – breach of official duty – police D, whilst on duty and in uniform some 30 yards away from the entrance to a club, from which he saw a man ejected. Shortly afterwards there was a fight involving cries and screams and the man was beaten and kicked to death in the gutter outside the club. He then left without calling for assistance or summoning an ambulance. Principle – Lord Widgery: The allegation made was not of mere non-feasance but of deliberate failure and wilful neglect. This involves an element of culpability which is not restricted to corruption or dishonesty but which must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment." Guilty of the common law offence of wilful misconduct in public office.

Actus Reus - Omissions Elements of Criminal Liability © The Law Bank Creating a Dangerous Situation If a person creates a dangerous situation through his own fault, he may be under a duty to take reasonable steps to avert that danger, and may therefore incur criminal liability for failing to do so. Two key cases here: Miller & Santana-Bermudez 17

Actus Reus - Omissions Elements of Criminal Liability © The Law Bank R v Miller (1983) 18 Case Law Omissions – situation created by D D a vagrant was sleeping in a building, and fell asleep on his mattress. When he woke up, he saw that his cigarette had caused the mattress to smoulder. Instead of calling for help, just moved into another room. The fire flared up and spread. Principle – He was convicted of arson, not for starting the fire but for failing to do anything about it.Lord Diplock:"...I see no rational ground for excluding from conduct capable of giving rise to criminal liability, conduct which consists of failing to take measures that lie within one's power to counteract a danger that one has oneself created, if at the time of such conduct one's state of mind is such as constitutes a necessary ingredient of the offence. I venture to think that the habit of lawyers to talk of "actus reus," suggestive as it is of action rather than inaction, is responsible for any erroneous notion that failure to act cannot give rise to criminal liability in English law." Guilty of arson (criminal damage by fire)

Actus Reus - Omissions Elements of Criminal Liability © The Law Bank DPP v Santana-Bermudez (2003) 19 Case Law Omissions – inactivity by D – an omission can amount to actus reus in assualt D injured a woman police officer by allowing her to search him, knowing he had hypodermic needles in his pockets which stabbed her. D denied having any needles or sharps when asked. D was convicted by the Magistrates, but acquitted at Crown Court. On appeal by way of case stated from the Crown Court, prosecutor's appeal was allowed. Principle – here someone created a danger and thereby exposed another to a reasonably foreseeable risk of injury, there was an evidential basis for the actus reus of an assault occasioning actual bodily harm. D had “created a danger by an act … that act was a continuing act”. The risk of injury was foreseeable. Not Guilty but would be now

Actus Reus - Omissions Elements of Criminal Liability © The Law Bank Plenary The Children and Young Persons Act 1933 s 1 (as amended) makes omissions culpable by a person over 16 failing to look after a child under 16, so an omission is part of the actus reus of that crime. I walk past a pond and watch a young baby drown to death whilst doing nothing to save it. One group represents the prosecution and constructs a case against me using s1 CYPA 1933 the other group have to advise on how the wording prevents my criminal liability. 20

Actus Reus - Omissions Elements of Criminal Liability © The Law Bank Objectives Identify what an omission is Describe how omissions can create criminal liability Apply omissions to case examples 21