R v Pittwood (1902) 19 TLR 37

OMISSION – ACTUS REUS

Facts

The defendant was employed by a railway company to operate the gate at a level crossing across the
track. He lifted the gate to allow a cart to pass across, but then failed to put it back down before going
for his lunch break. During his absence, a horse and cart crossed the track through the open gate, and
was hit by a passing train. Both the horse and cart driver were killed. The defendant was thus
convicted of manslaughter and subsequently applied for permission to appeal.

Issue

The main issue here was whether an omission (in this case the failure to close the gate) could
constitute the actus reus for murder. A further question was whether it was possible for criminal
liability to be based on a breach of a contractual duty

Held

The court held that as the defendant had been under a contractual duty to close the gate, his omission
to perform this obligation was capable of constituting the actus reus for murder. This was particularly
so as the purpose of the defendant’s employment was for the protection of the public, and his
employer was responsible for preventing accidents at the crossing. The ruling in R v Instan [1893] 1
QB 450, which was authority that breach of a contractual duty may ground criminal liability for an
omission, was applied and upheld. In the circumstances, the duty had been breached with gross and
criminal negligence. Permission to appeal the conviction was therefore refused.

R v Instan [1893] 1 QB 450

Offences against the person – Duty of care

Facts

Instan was cared for and maintained by her seventy-three-year-old aunt who was the deceased in this
case. The deceased was healthy until shortly before her death before she contracted gangrene in her
leg which prevented her from moving and caring for herself. During this time, Instan lived in the
house, took in food from traders (of which she gave the deceased none), omitted to procure medical
assistance and even conducted conversations with neighbours about the deceased without disclosing
her dire condition. The jury found Instan guilty of manslaughter in the first instance. Instan appealed.

Issue

An important legal issue in this case was whether a duty of care was imposed upon Instan under such
circumstances and whether her negligence accelerated the death of the deceased. The solicitor on
behalf of Instan argued that such a duty could only be enforced by virtue of statute, contract or by
common law and none of which were applicable in this case.

Held

‘There can be no question in this case that it was the clear duty of the prisoner’ (at page 454).

Whilst she had the gangrene infection, the victim could only be aided by Instan and it was only Instan
that had knowledge of her condition in the final days of her life. On this basis, it was held that Instan
owed the victim a duty of care and that she did not discharge this duty with the actions mentioned in
the facts. The failure to do so was deemed to at least accelerate the death of the deceased. Appeal
dismissed and the conviction was affirmed.

R v Stone and Dobinson [1977] 1 QB 354

OMISSION – NEGLIGENCE – DUTY OF CARE

Facts

The defendants, S and D, were a couple who took in the victim, S’s sister, as a lodger. S had severe
disabilities, being partially deaf and blind. D had learning difficulties.  Whilst staying with the
defendants, the victim became unable to care for herself, having long struggled with mental health
issues and obsession about her weight. D made some efforts to care for her, bringing her food and
washing her with the held of a neighbour. However, her attempts were not sustained and inadequate,
and the victim passed away. The defendants were charged with manslaughter.

Issue

The issue was the jury were entitled to find that the defendants owed a duty of care to the victim.
Additionally, the definition of ‘gross negligence’ for the purpose of a manslaughter conviction was in

issue.
Held

The jury were entitled to find that a duty of care was owed on the grounds that the victim was not only
a lodger in the home of the defendants but also had closer ties to each. In Stone’s case, a duty of care
was owed on the basis that she was a blood relative, whilst Dobinson had undertaken a duty of care by
washing her and providing food.

Regarding the issue of negligence, the Court of Appeal held that in order to ground a conviction for
manslaughter the defendants must have been ‘grossly negligent’ in respect of their breach of duty.
Geoffrey Lane LJ suggested that such gross negligence required the defendants to have been either
‘indifferent’ to the risk of injury, or have foreseen the risk and run it nevertheless.

The conviction of gross negligence manslaughter was upheld.

R v Miller

James Miller, a vagrant, was squatting at 9 Grantham Road, Sparkbrook, an inner-city area

in Birmingham, England, in August 1980 when he accidentally set fire to the mattress on which he
was sleeping with a cigarette butt. Rather than taking action to put out the fire, he moved to a different
room; the fire went on to cause extensive damage to the cost of £800. was subsequently convicted of
arson, under Sections 1 and 3 of the Criminal Damage Act 1971. Miller's defence was that there was
no actus reus coinciding with mens rea. Although his reckless inattention to the fire could be said to
constitute mens rea, it was not associated with the actus reus of setting the fire. Nevertheless, the
defendant was convicted for recklessly causing damage by omission.

Upon appeal to the House of Lords, Lord Diplock stated:

I see no rational ground for excluding from conduct capable of giving rise to criminal liability,
conduct which consists of failing to take measures that lie within one's power to counteract a danger
that one has oneself created, if at the time of such conduct one's state of mind is such as constitutes a
necessary ingredient of the offence.

The decision in effect established that the actus reus was in fact the set of events, starting with the
time the fire was set, and ending with the reckless refusal to extinguish it, establishing the requisite
mens rea and actus reus requirements.

Therefore, an omission to act may constitute actus reus. Actions can create a duty, and failure to act
on such a duty can therefore be branded blameworthy. Secondly, an act and subsequent omission
constitute a collective actus reus. This has been described as the principle of 'supervening fault'.
Hyam v DPP [1975] AC 55

Murder – Mens Rea – Intention – Foresight

Facts

The defendant Hyam had been in a relationship with a man before the relationship ended.  Hyam then
had become jealous of her ex-boyfriend’s new fiancée Ms Booth.  She poured petrol through Booth’s
letter box and then ignited it using a rolled up newspaper.  Hyam did not warn anyone of the fire but
simply drove home.  The resulting fire killed two young children.  Hyam was tried for murder.  At
trial she claimed that she had only intended to frighten Booth and had not intended to kill anyone as
the mens rea of murder demanded.  Hyam was convicted and appealed.  The Court of Appeal allowed
an appeal to the House of Lords.

Issues

Did Hyam have the requisite intention to commit murder?  Did the mens rea of intention require an
intention to kill or only a foresight of a serious risk of death or serious bodily harm being caused?

Held

The appeal was refused.  A person had the requisite mens rea for murder if they knowingly committed
an act which was aimed at someone and which was committed with the intention of causing death or
serious injury.  Lord Hailsham also held that intention could also exist where the defendant ‘knew
there was a serious risk that death or serious bodily harm will ensure from his acts and he commits
those acts deliberately and without lawful excuse with the intention to expose a potential victim to
that risk as the result of those acts.  It does not matter in such circumstances whether the defendant
desires those consequences or not.’ Hyam v DPP [1975] AC 55 at 79.