Criminal Litigation

Omissions | Criminal Law – SQE1 & SQE2 Examinations – solicitorsqualifyingexamination.net

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Omissions
• Failure to act when under a duty to do so
• Duties arise:
o By statute
o Relationship (parent-child, doctor-patient)
o Voluntary assumption of care
o Contract
o Accused created dangerous situation, or helped to create danger
o Public office
o Duty to control the conduct of others
General: No Duty to Prevent Harm
• R v Smith (William) – Omission, without a duty, will not create an
indictable offence
Conviction for omission
1. Crime capable of being committed by omission (some are not – unlawful
act manslaughter)
2. Accused under a legal duty to act
3. Accused breached duty – standard required is ‘reasonable’ action (R v
Miller)
4. Breach caused AR of offence to occur
5. Is breach of standard required by charge, if any? – e.g. gross negligence
6. Requisite MR of offence, if any
© Liam Porritt 2020 2
Legal duty to act
Statutory Duty
• Many that are not needed for course
• Road Traffic Act 1988, s 6(4), offence to fail to provide specimen of breath
Special Relationship
• Parent-child (statutory duty of care under Children and Young Persons
Act 1933)
o R v Gibbons & Proctor
§ Gibbons + girlfriend Proctor + child Nelly + Proctor’s
children
§ Nelly starves to death
§ Gibbons guilt of murder, as omission of food while under a
legal duty of care as father, which caused Nelly’s death, and
MR as either intention or oblique intention
§ Convicted of murder
• Husband-wife
o R v Hood
§ D liable for manslaughter of wife, who died from broken
bones suffered three weeks earlier – D failed to summon
medical assistance
• Doctor-patient
Voluntary assumption of duty of care
• R v Nicholls: If undertake care of person who is helpless (infancy, mental
illness, infirmity) – gross negligence leading to death = manslaughter
• R v Gibbons and Proctor: Proctor (step-parent, or akin to) also convicted
of murder – looking after family, which included Nelly
• R v Stone and Dobinson: S + D accepted into home elderly, weak and
anorexic sister (family); tried to make her eat; failed to get medical
assistance; she died = gross negligence manslaughter b/c assumed duty
voluntarily (sister, living with them, fed her)
• R v Ruffell: Friends doing drugs; one passes out; R leaves him outside; he
dies; duty of care previously assumed when R tried to revive victim;
convicted of manslaughter
Breach of contractual duty
• May owe duty to party with whom contracted, or with third party
• R v Pittwood: level-crossing gatekeeper failed to close gate and someone
died; omission could be AR of manslaughter
© Liam Porritt 2020 3
Accused creates dangerous situation
• R v Miller – Miller falls asleep with cigarette, mattress smouldering, so
moves room rather than putting out smouldering; causes fire; arson b/c
inadvertently setting in motion causing risk of damage + realises
this + can prevent further damage by REASONABLE steps = omission
becomes AR of criminal damage
• R v Evans – person assists another to create dangerous situation for
himself – Evans provides sister with heroine, she overdoses and shows
symptoms of overdose, mother and Evans put her in bed and she dies in
night
o Mother = duty of care because mother
o Sister = not constructive guardian of younger sibling, but helped
create a dangerous situation, realised this, and failed to take
reasonable steps to prevent death of sister
Public Office Holders
• Stephen’s Digest: public officer must discharge duty provided not attended
with greater danger than a man of ordinary firmness and activity may be
expected to encounter
• R v Dytham – man being kicked, and subsequently died; police officer saw
and did nothing; duty to act here.
Person who has the power of control over another or another’s use of
property
• Du Cross v Lambourne – friend did not act to prevent friend speeding,
which encouraged offence
Causation
Factual Causation
• If the defendant had acted, he could have made a causal difference?
(‘But for’ test – would the AR have occurred but for the defendant’s failure
to act?)
o E.g. if Evans had got medical aid, could have prevented cause of
death of drug overdose
Legal Causation
• Is event (e.g. drug overdose) a substantive and operational cause of death,
without any novus actus interveniens?

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