Omissions
- In England and Wales, you are not under a general legal obligation to rescue unless there is a special relationship
- Omissions are not punished
- Why should the law impose a duty on someone to act in a particular way, rather than refrain from acting in a bad way?
- How can there be fair warning if there is general liability for omissions?
- How does an omission cause any harm?
o The omitter did not cause the original harm
- Why pick on one omitter from thousands?
o It is impractical to track down every person who could have omitted
- What standard of duty will be imposed? Am I expected to demonstrate the same skills of rescue as a professional lifesaver?
- It is uneconomic to impose a duty on citizens thereby distracting them from their tasks
- The moral offensiveness of conduct should not render it criminal per se
- Duty to act:
o Statutory duty
§ S1 Children & Young Persons Act 1933: if someone 16+ years is responsible for a child, they cannot omit
o Contractual duty
§ Doctors have contractual duties to patients, child minders have duties to child in care
§ R v Pittwood 1902:
· Duty to make sure people didn’t cross the line when train were meant to go
· Left the gate open when he went out and people crossed the line, one was killed and one was seriously injured
· Argued that he had no duty to the public, just to his employer
· Had a contractual duty to the general public and was guilty of gross negligence manslaughter
o Public Office
§ R v Dytham 1979:
· On-duty police officer watched a man get beaten to death outside a club but said he was ‘due off’ and left
· Found guilty of misconduct of an officer of justice
· Appealed on the basis that there must’ve been something that he had to have done wrong or that he had to have done an action, appeal rejected: willful neglect
o Assumption of responsibility
§ Where somebody has perhaps assumed responsibility for someone they are not in a special relationship with
§ R v Instan 1893:
· D lived with aunt and knew that she had gangrene
· Took food in for them both but didn’t give her any
· Didn’t tell the neighbours or relations
· Didn’t seek medical attention
· Aunt died: exhaustion caused by gangrene and lack of food, nursing and medical attention
· D was convicted of gross negligence manslaughter
· She was under a moral obligation to give her aunt food, from which a legal duty arose towards her
· She ‘willfully and deliberately’ left that obligation unperformed
§ R v Gibbons and Proctor 1918:
· G and P lived in a house with P’s children, including V
· V was kept apart from the other children and didn’t feed her, so she starved to death
· G and P were accused of murder
· G had provided money for food for all family members but knew V wasn’t being looked after properly as P hated her
· P was her mother and had a duty to use the money received for food to feed her children and get medical attention etc.
§ R v Stone and Dobinson 1977:
· S (67) and D (43) lived with S’s younger sister V (61)
· V paid rent and ate very little (anorexic)
· S and D knew she wasn’t eating much
· V didn’t leave her room often
· It became clear that her condition was deteriorating
· S and D walked a significant distance to look for the doctor
· They told the landlady (or neighbor) that they were worried about her
· Someone called the doctor for them because they had no phone – unsuccessful
· D and neighbor washed V once since living there
· D told landlady she wouldn’t wash, eat or go to the toilet
· V died
· Room was described as covered in excrement ‘dreadful degradation’
· Contracted maggots, covered in ulcers, sores etc.
· Could’ve survived if she had gone to hospital 2 weeks earlier
· D said V never complained
· S said V was stubborn
· Convicted of gross negligence manslaughter
· Rejected appeal because V was a blood relative of S, had occupied a room in their home, knew of her poor condition, taken steps to care for her, no effort made to summon ambulance, police or social services
· ‘Not analogous to the drowning stranger’: they made efforts to care
· The easiest thing to do for someone you have no relationship with is to do nothing to try and help them
· “Finish what you started”
o Creation of dangerous situation
§ R v Miller 1983:
· D fell asleep with a cigarette in his hand, woke to find the mattress on fire and said he didn’t have anything to put the fire out with so he left it
· Convicted of arson
· Question of law concerning whether the actus reus and mens rea matched up
· When the actus reus started, he was asleep: when did the mens rea begin?
· House of Lords considered two theories which could be adopted to explain how the AR and MR could coincide:
o Duty/responsibility theory:
§ If you have started a series of events, and have subsequently become aware of the fact that you have caused it, you need to try and make it as if you hadn’t caused the harm or created the potential to cause the harm
o Continuous act theory:
§ Court of Appeal prefer the latter approach
§ Evans 2009:
· E (24) supplied half sister (16) with heroin
· E and mother saw overdose symptoms and tended to her for part of the night
· V died even though she was seen to have been recovering
· They were convicted of gross negligence manslaughter
· E appealed conviction, the mother didn’t
· E said she didn’t have a familial duty
· Court of Appeal held that gross negligence manslaughter responsibility could be imposed on the defendant where a person creates or contributes to the state of affairs which they knew had become life-threatening
o Special relationship
§ Spouses, siblings, parent/child etc.
- Omissions are not punished
- Why should the law impose a duty on someone to act in a particular way, rather than refrain from acting in a bad way?
- How can there be fair warning if there is general liability for omissions?
- How does an omission cause any harm?
o The omitter did not cause the original harm
- Why pick on one omitter from thousands?
o It is impractical to track down every person who could have omitted
- What standard of duty will be imposed? Am I expected to demonstrate the same skills of rescue as a professional lifesaver?
- It is uneconomic to impose a duty on citizens thereby distracting them from their tasks
- The moral offensiveness of conduct should not render it criminal per se
- Duty to act:
o Statutory duty
§ S1 Children & Young Persons Act 1933: if someone 16+ years is responsible for a child, they cannot omit
o Contractual duty
§ Doctors have contractual duties to patients, child minders have duties to child in care
§ R v Pittwood 1902:
· Duty to make sure people didn’t cross the line when train were meant to go
· Left the gate open when he went out and people crossed the line, one was killed and one was seriously injured
· Argued that he had no duty to the public, just to his employer
· Had a contractual duty to the general public and was guilty of gross negligence manslaughter
o Public Office
§ R v Dytham 1979:
· On-duty police officer watched a man get beaten to death outside a club but said he was ‘due off’ and left
· Found guilty of misconduct of an officer of justice
· Appealed on the basis that there must’ve been something that he had to have done wrong or that he had to have done an action, appeal rejected: willful neglect
o Assumption of responsibility
§ Where somebody has perhaps assumed responsibility for someone they are not in a special relationship with
§ R v Instan 1893:
· D lived with aunt and knew that she had gangrene
· Took food in for them both but didn’t give her any
· Didn’t tell the neighbours or relations
· Didn’t seek medical attention
· Aunt died: exhaustion caused by gangrene and lack of food, nursing and medical attention
· D was convicted of gross negligence manslaughter
· She was under a moral obligation to give her aunt food, from which a legal duty arose towards her
· She ‘willfully and deliberately’ left that obligation unperformed
§ R v Gibbons and Proctor 1918:
· G and P lived in a house with P’s children, including V
· V was kept apart from the other children and didn’t feed her, so she starved to death
· G and P were accused of murder
· G had provided money for food for all family members but knew V wasn’t being looked after properly as P hated her
· P was her mother and had a duty to use the money received for food to feed her children and get medical attention etc.
§ R v Stone and Dobinson 1977:
· S (67) and D (43) lived with S’s younger sister V (61)
· V paid rent and ate very little (anorexic)
· S and D knew she wasn’t eating much
· V didn’t leave her room often
· It became clear that her condition was deteriorating
· S and D walked a significant distance to look for the doctor
· They told the landlady (or neighbor) that they were worried about her
· Someone called the doctor for them because they had no phone – unsuccessful
· D and neighbor washed V once since living there
· D told landlady she wouldn’t wash, eat or go to the toilet
· V died
· Room was described as covered in excrement ‘dreadful degradation’
· Contracted maggots, covered in ulcers, sores etc.
· Could’ve survived if she had gone to hospital 2 weeks earlier
· D said V never complained
· S said V was stubborn
· Convicted of gross negligence manslaughter
· Rejected appeal because V was a blood relative of S, had occupied a room in their home, knew of her poor condition, taken steps to care for her, no effort made to summon ambulance, police or social services
· ‘Not analogous to the drowning stranger’: they made efforts to care
· The easiest thing to do for someone you have no relationship with is to do nothing to try and help them
· “Finish what you started”
o Creation of dangerous situation
§ R v Miller 1983:
· D fell asleep with a cigarette in his hand, woke to find the mattress on fire and said he didn’t have anything to put the fire out with so he left it
· Convicted of arson
· Question of law concerning whether the actus reus and mens rea matched up
· When the actus reus started, he was asleep: when did the mens rea begin?
· House of Lords considered two theories which could be adopted to explain how the AR and MR could coincide:
o Duty/responsibility theory:
§ If you have started a series of events, and have subsequently become aware of the fact that you have caused it, you need to try and make it as if you hadn’t caused the harm or created the potential to cause the harm
o Continuous act theory:
§ Court of Appeal prefer the latter approach
§ Evans 2009:
· E (24) supplied half sister (16) with heroin
· E and mother saw overdose symptoms and tended to her for part of the night
· V died even though she was seen to have been recovering
· They were convicted of gross negligence manslaughter
· E appealed conviction, the mother didn’t
· E said she didn’t have a familial duty
· Court of Appeal held that gross negligence manslaughter responsibility could be imposed on the defendant where a person creates or contributes to the state of affairs which they knew had become life-threatening
o Special relationship
§ Spouses, siblings, parent/child etc.