#4613 - Omissions - GDL Criminal Law

• The general rule: there is no general duty to act to prevent harm

  • R v Wm Smith: ‘Omission, without a duty, will not create an indictable offence’

• To secure a conviction based on an omission, it must be proved that:

1. The accused was under a legal duty to act;

2. The accused breached that duty;

3. The breach caused the actus reus of the offence to occur;

4. Should the offence so require, that the accused had the requisite MR

5. The crime is one which is capable of being committed by an omission (act not result offences)

A Legal Duty to Act

• A statutory duty

• Most common: s6(4) Road Traffic Act 1988: offence to fail to provide a specimen of breath

• A Special Relationship

• E.g. doctors, parents

• R v Gibbons & Proctor: deliberately starved child to death (mother guilty based on breach of statutory duty)

• Re A (Conjoined Twins): both children would die without operation: operation could save one twin but parents wouldn’t give their consent – judge held that they had a legal duty to the twin that could be saved

• R v Hood: wife died 3 weeks after a fall: D had failed to summon medical assistance

• Voluntary Assumption of a Duty of Care

• R v Nicholls: ‘if a person chooses to undertake the care of a person who is helpless either from infancy, medical illness or other infirmity, he is bound to execute that responsibility’ – Duty owed

• R v Gibbons and Proctor: Proctor (mother’s partner) also convicted due to his role as Gibbons’ de facto wife

• R v Stone and Dobinson: S and D accepted S’s elderly, weak and anorexic sister into their home. They failed to look after her and she died. Court considered: V’s mental state; the fact that a neighbour had advised D to seek help; blood relative; the fact that D had undertaken duty to wash her, taking her food to her etc.

• R v Ruffell: Following Stone and Dobinson: D and V taking drugs together. When V became unconscious, D phoned V’s mother who told him to take him inside and keep him warm – he didn’t and V died. D convicted although unclear exactly how duty was assumed)

• R v Instan: D lived with her 73 year old Aunt who gave her money to buy them both food; she bought herself food but not her aunt who died

• A breach of contractual duty

• R v Pittwood: under a contractual duty to close the level-crossing when a train was coming – convicted of manslaughter when he failed to do so

• When the accused has created a dangerous situation

• R v Miller: Squatter fell asleep in a bed whilst holding a lighted cigarette. He awoke to find mattress smouldering (knew he had started fire) just moved to another room and went back to sleep: convicted of arson + criminal damage: HL – if a person inadvertently sets in motion a chain of events and then becomes aware of what is happening and can prevent further damage, inaction can become AR of criminal damage

• Public Office Holders

• R v Dytham: D was a police constable – saw a man being kicked so badly that he later died, D drove away – wilfully neglecting to perform his duty

• A person who has the power of control over another or another’s use of property

• Du Cross v Lambourne: allowed his friend to exceed the limit of his own car – convicted as an accessory

• Withholding live saving treatment

• Doctors not under a...