Presentation on theme: "Lecture 2: Liability for omission"— Presentation transcript:
1Lecture 2: Liability for omission CRIMINAL LAWLecture 2: Liability for omission
2Liability for omission Though it will usually be the case that the accused will have performed some ‘act’ there are certain situations where the accused can be liable for omitting / failing to actThere is no general duty to act……BUT D may be criminally liable for an omission where there is a legal duty to act
3When might D be liable for a failure / omission to act? The accused may be criminally liable for omitting to act provided:(1) The crime is one which may be committed by omission; and(2) The accused is in breach of some legal duty to act
4When does a legal duty to act arise? (i) Statutory duty:Failure to provide breath specimen; RTA 1988Wilful neglect of a child; Children and Young Persons Act 1933Failure to keep a dangerous dog under control in a public place; Dangerous Dogs Act 1991(ii) Duty owed by a Public OfficerDytham (1979)
5When does a legal duty to act arise? (iii) Duty arising under ContractPittwood (1902)(iv) Duty of Care Voluntarily AssumedInstan (1893)Gibbons and Proctor (1918)Stone and Dobinson (1977)A controversial decision?
6When does a legal duty to act arise? (v) Duty created by Special RelationshipParentsGibbons and ProctorNote: Sheppard (1981) – parental duty ends at 18 years?Other blood relations?Stone and Dobinson – Did S’s duty arise because he was F’s brother?
7When does a legal duty to act arise? SpousesBonnyman (1942)Smith (1979): A spouse may be released from the duty to act…provided the victim has the capacity to make rational decisionsUnmarried partners ??People v Beardsley (1967)Those who engage in hazardous activities ??Those who supply drugs to another ??Khan and Khan (1998)
8When does a legal duty to act arise? (vi) Creation of a Dangerous SituationWhere D has created a dangerous situation s/he may be guilty via 2 different routes…(1) D becomes under a duty to act and omits to do soMiller (1983) (HL) – the better analysis?(2) D’s conduct can be construed as a ‘continuing act’Fagan v Metropolitan Police Commissioner (1969)See also: DPP v. Santana-Bermudez (2003) (see Herring p.326), where the Administrative Court applied the Miller principle
9Distinguishing acts from omissions In medical cases it is critical to distinguish between acts and omissionsE.g. Is the switching off of a life support machine an act or an omission?Airedale NHS Trust v. Bland (1993)Since all hope of B’s recovery had gone, the doctors’ duty to provide life prolonging treatment had disappearedNo duty = No liability for omission when feeding and treatment is withheld
10Summary…In order to be criminally liable for omitting / failing to act;(1) The crime must be capable of being committed by omission; and(2) The accused must be in breach of some legal duty to actA legal duty to act can arise in numerous ways e.g. by statute, contract, voluntary assumption, relationship, the creation of a dangerous situation…The distinction between acts and omissions is critical in medical cases
11Reading & Tutorial Work Liability for omissionHerring pp (basic principles)See also p.326 (Santana Bermudez)Causation (for next week’s lecture)Herring ppTutorial (w/c 13th October)See pg.5 of the Module Handbook (omissions)