CRIMINAL LIABILITY FOR OMISSIONS

1. CRIMINAL LIABILITY FOR OMISSIONS • In this lecture, we will consider: • The general position under the criminal law of liability for omissions. • The reasons for this rule. • The requirements for the imposition of liability.

2. The general principle in the criminal law is that liability for omissions is the exception, rather than the rule.

3. REASONS WHY • An unwillingness to infringe an individual’s personal freedom and force him to play the good Samaritan. • The difficulty in establishing that a person has by his omission caused the harm required for liability for the particular offence.

4. Requirements for the imposition of liability • Liability will only be imposed when 2 questions are answered in the affirmative: • 1. Is the offence capable of being committed by omission? • 2. Was the D under a legal duty to act?

5. Are all offences capable of being committed by omission? Can, for example, an assault, see Fagan (1969).

6. The common law duties • Contractual • Special relationship • Voluntarily assumed duty • Where D inadvertently creates a dangerous situation whereby life or property are at risk • A duty to act, breach of which gives rise to liability for a common law misdemeanour.

7. Contractual duty • The classic example is the employer/employee relationship. • See, for example, Pittwood (1902).

8. Doctors and other medical practitioners • Doctors and nurses owe a contractual duty to their patients. • Doctors are under no absolute duty to prolong the patient’s life regardless of the circumstances (Airedale NHS Trust v Bland (1993).

9. Special relationship • Close family relationships may give rise to a duty e.g. between: • parent and child (Senior (1899)) and (Gibbins and Proctor (1918)) • Duty extends to those in loco parentis.

10. How long does such a duty last? • Does it last until the child reaches 18? • Or leaves full-time education? • In Shepherd (1862), no duty was held to be owed by a parent to her “entirely emancipated” 18 year old daughter. • Might an adult child owe a duty to an elderly parent?

11. Husband and wife • See Smith (1979), which left the position unclear, and Bonnyman (1942) in which a duty was imposed on a husband but this is not a good authority as he was also his wife’s doctor. • Probably no duty if separated.

12. Is there a duty between cohabitees? • No special relationship exists between siblings (William Smith (1826)).

13. Voluntary assumption of a duty • Relevant caselaw: • Nicholls (1874) • Instan (1893) • Stone & Dobinson (1977)

14. Where D inadvertently creates a dangerous situation whereby life or property are at risk • Leading case is Miller (1983). • D owes this duty only when he realises that he has created the dangerous situation. • The duty is to take reasonable steps to prevent or reduce harm/damage to persons or property at risk. • This is often called the principle of SUPERVENING FAULT.

15. A duty to act, breach of which gives rise to liability for a common law misdemeanour. • See, for example, Dytham (1979)

16. Statutory Duties • Parliament has been more willing than the courts to impose liability for omissions, see for example, S.6 RTA 1988. • Why might this be so?