Criminal: Omissions

Omissions

The general rule under UK law is that there is no liability for failing to act unless at the time of failing to act the defendant was under a legal duty to take positive action. This was stated in the case of Miller.

Khan v Khan [1998]: Defendants supplied drugs to the victim and delivered them to the victim’s flat, she took the drugs and her body rejected them, she was writhing on the bed in pain. The defendants left her and she died. The prosecution argued that the defendants owed a duty of care to the victim by the fact that they had supplied the drugs. Held, they couldn’t have a duty of care based purely on supply.

Statute

The defendant will be liable for failing to act if an Act of Parliament imposes a statutory duty to take positive action.

Road Traffic Act 1988: Creates offences of failing to provide a specimen as required and failing to report a road traffic accident.

Children and Young Persons Act 1933: Creates an offence of failure to provide for a child in ones care.

Domestic Violence, Crime and Victims Act 2004: Creates an offence of causing or allowing the death of a child or vulnerable adult.

Public Duty

Defendant will be liable for failing to fulfil their public duty to care for others.

Dytham [1979]: The defendant was a policeman who watched a bouncer eject the victim from a pub and beat the victim to death. He did not get involved and said to a passer-by “I’m off duty, I’m going home”. Held, the defendant was guilty of neglecting to perform his duty to preserve the Queen’s peace.

Contract

Defendant will be liable for failing to fulfil their contractual duty.

Pitwood [1902]: The defendant was employed as a crossing gate keeper, he left the gates open when they should have been closed. A horse and cart went across the track and was struck down by a train. The defendant argued that although he was employed as a gate keeper, his obligations were to his employer. Held, given the nature of his employment it extended a duty to the general public and he was found guilty.

Voluntary Assumption of Care

There is a common law duty of care imposed where there is a relationship of care and reliance between the defendant and the victim, they have assumed a positive duty to care for their general welfare, failing to act will result in liability.

Gibbons and Proctor [1918]: The man’s child lived with him and his mistress. The child died through starvation. The man was held to owe a duty of care to his child by virtue of him being a parent. This mistress received money for the household food, she lived there and this created a duty to the child.

Instan [1893]: The defendant went to live with her aunt. The aunt became ill and for the last 12 days of her life she was incapable of looking after herself. The defendant provided no assistance. Held, because the defendant used her food, took money from her and lived in the same home a duty of care arose.

Stone and Dobinson [1977]: The defendants lived together. Stone’s sister came to live with them, she suffered from anorexia. Stone was described as 67, partially deaf, blind and of low intelligence. Dobinson was described as 45, ineffectual and inadequate. The defendants could not use a telephone. The sister became increasingly ill. The defendants tried to find a doctor and the neighbour phoned for a doctor who did not attend. The sister died. Held, the owed a duty of care.

Ruffell [2003]: The victim had injected heroin whilst at the defendant’s house and became unwell. The defendant made attempts to revive him that night, but early the following morning the victim was still unwell. The defendant put him outside and left him there. The victim was later found dead as a result of hypothermia and opiate intoxication. The defendant was found guilty of gross negligence manslaughter.

Wacker [2002]: A lorry driver had illegal immigrants in the back of his wagon, he closed the air vents to avoid detection, and this resulted in the death of the immigrants. The guilty act was closing the vent. Held, he owed a duty of care to those who he was in crime with. He was grossly negligent resulting in their deaths.

Smith [1979]: Mrs Smith did not trust doctors, she fell ill and instructed her husband not to seek medical help after stillbirth. She repeated this even though her condition worsened. The husband was charged with manslaughter. However, the jury failed to come to a conclusion on the case.

Duty of Medical Practitioners

Lord Goff: Outlined that there was no absolute right that a patient’s life had to be prolonged regardless, the wishes of the patient must be considered and if it is impossible to obtain treatment may be provided if it is in the patient’s best interests, if the treatment is futile there is no duty to continue if it is not in the patient’s best interests.

Bolam [1957]: Established that a doctor or similar professional had to be judged against the standards of a reasonable person within that profession.

Airedale NHS Trust v Bland [1993]: A wife sought declaration from the court on whether it was lawful for the doctors to withdraw feeding tubes from a patient who had suffered catastrophic brain injuries.

Duty Arising from Defendant’s Prior Conduct

Where the defendant commits an act that causes harm and then becomes aware of this but fails to act and avert the danger, there will be liability.

Miller [1983]: If a dangerous situation is created then a duty of care is created. A tramp fell asleep on a mattress in a derelict building whilst smoking. He set the mattress alight. Miller woke up and moved to another room. Resulting in the building being burnt down. Held, he was responsible for the criminal damage and failed in his obligation to avert a dangerous situation.

Evans [2009]: A family member supplied drugs to the rest of her family. Her sister overdosed. Evans did not call an ambulance. Held, as she created a dangerous situation 

and failed to assist she was guilty of manslaughter.

DPP v K [1990]: The defendant placed acid in a hand dryer in the school toilets resulting in the victim being splashed with acid. The defendant created a dangerous situation. Held, he was responsible for the consequences.

 
DPP v Santana Bermudez [2003]: A policewoman asked the defendant if he had any sharps in his pocket prior to searching him. He said no, she pricked her hand on a sharp whilst searching his pocket. Held, he created a dangerous situation.