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J ji Conlte nate Fe agi al del ae ee — eel) Mh’ owse tes ante em Hp way gully f ob Age R27 Sten mahorwt Sues Attias “Srnr$ Conducl z _— oh plies rie tp Crimirol Lebilily, Coduct whl tovsals lig “O° tele starnd Dal Jeti =e Pet e re elo cea 3) « Ake Kant Kian AND KHAN KHAN = (naw ui Geateal by the Gut) 6 gh apply Hons. tb We Vo dst l dic drag r Ay i a sf o olla wiki eee E lo ae ao Summon. _peclle & car Wee , ie, a AEs isola tg cana in 7s a mia Correct’ Lo Scanned with CamScannero Bie Evans (Gemma) oa i fai ther sister e [eT _lng 2nd it One aa — w A che_aticitea! 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SOMETIMES A STATUTE PROVIDES FOR ACTUS REUS BY i Al CAS ALSO CLEAR, Examples * Section 6 Of Road Traffic Act 1988 (Failing to provide a police officer with a specimen of breath when requested to do so is an offence by omission) * SECTION 1(1) OF THE CHILDREN AND YOUNG PERSONS ACT 1933 (Willfully neglecting a child for whom you are responsible is an offence by omission) JF AN OFFENCE IS NOT LAID DOWN IN THE STATUTE THEN TO DETERMINE WHETHER AN OMISSION LEADS TO CULPABILITY TWO QUESTIONS NEED TO BE ASKED: 1) IS THE OFFENCE CAPABLE OF BEING COMMITTED THROUGH OMISSION? IF YES, THEN: 2) ‘S THE D' iT UNDER A DUTY IF THE DEFENDAN’ D A DUT CT AND. LED UNREA: IL All HE PI CUTIO! oO LL IER INGREDIENTS O} |E OFFENC! \CTUS RE! Scanned with CamScannerMMITTED BY ING CO OFFENCES CAPABLE OF BE comme OMISSIONS: 4. MURDER & MANSLAUGHTER: Gi IS OCTOR: ONS AND PR vat lected his child by de! iberately failing to feed lect A father and his lover neg] her. A IT WAS HELD THAT SINCE THE LOVER HAD — DUTY TO TAKE CARE FOR THE CHILD AND H opLe HAD SUBSEQUENTLY FAILED TO DO SO, BOTH THE PE FAILED TO DISCHARGE THEIR OBLIGATION AND WERE THEREFORE GUILTY OF MURDER, Mansleuph ior 2.CRIMINAL DAMAGE: MILLER (1983): The defendant was squatting in a building. He lay ona mattress, lita cigarette and fell asleep. Later when he woke up to find the mattress on fire, he ignored it and simply moved to another room without putting it out. IT WAS HELD THAT THE D’S FAILURE TO ACT TO PpuT OUT THE FIRE WAS SUFFICIENT TO AMOUNT TO ACTUS REUS FOR ARSON (CRIMINAL DAMAGE). : Scanned with CamScanner. ASSAULT & BATTERY , (GENERALLY ACCEPTED AS NOT CAPABLE OF BEING COMMITTED BY OMISSION) However the following authorities raise the possibility: FAGAN VS. MPC: When the D, who had accidently parked a car with a tire on a policeman's foot, his subsequent failure to remove the car when asked to, WAS TAKEN BY THE COURTS AS A CONTINUAL POSITIVE ACT OF BATTERY AND NOT AN OMISSION. SANTANA BERMUDEZ: A thug with a needle failed to tell a policewoman searching his pockets, who got pricked by it, when she inquired about sharp objects before the search. It was held that the D had created a danger by an act and that act was a continuing act where the risk of injury was forseeable. (FEEL FREE TO ARGUE HOW THESE TWO CASES MAY PERMIT CONSIDERING ASSAULT AND BATTERY BOTH CAPABLE OF BEING COMMITTED THROUGH AN INACTION: FAILURE TO REMOVE THE CAR, FAILURE TO TELL ABOUT THE NEEDLE/SHARP OBJECT) DUTY TO ACT: Scanned with CamScannerclear is not ex) ‘ a ® Tonto ati not noon ant arson iesat xpected ‘endanger histhor own life, eR A DEFENDANT WHO E REAL QUESTION IS W! - DISCHARGED HIS DUTY A PEND ON mas nog a puto ACEH SIT eo TOA REASONABLE STANDARD WHICH WILL DETETS TN SE. THE CIRCUMSTANCES OF EACH CA OBJECTIVE TES’ Boris His IF THE DEFENDANT THOUGHT HE a ig BEST, IF THAT BEST WAS AN INCOMPETE a. UNLIKELY TO HAVE BEEN SUFFICIENT TO. DUTY, (OBJECTIVE NOT SUBJECTIVE) LEGAL THERE IS DIFFERENCE BETWEEN A MORAL AND A DUTY To ACT. Y, 1 LEGAL SANCTI IMPOSED FOR B OF A MORAL DUT) UNDER Common LAW, FOLLOWING ARE THE ON LAW, FOLLOWING ARE THE SITUATIONS IN WHICH THE D IS UNDER A DUTY TO ACT: 1. THERE IS A DUTY ARISING OUT A CONTRACT: PiTTwoop: The D, a level crossing keep whose J0b was to shut the gate whenever a train approached, left the gate open one day. A person driving a hay cart died while crossing, - IT WAS HELD THAT PITTWOOD'S CONTRACT WiTH THE RAILWAY GAVE RISE To DUTIES TOWARD THOSE WHO WOULD BE AFFECTED BY HIS NEGLIGENT PERFORMAN ICE OF THE CONTRACT, i ! IE WAS LIAB Su, GR EGLIGENCE, Scanned with CamScanner's STEPS TO RECTIFY IT: MILLER (see above): 3. THERE IS A DUTY ARISING OUT OF THE RELATIONSHIP ITSELF: Examples: Husband &wives, parents & children etc. GIBBONS AND PROCTOR (see above): 4. A PERSON HAS ASSUMED THE DUTY TO TAKE CARE FOR ANOTHER: R VS. NICHOLLS: IF A GROWN UP PERSON CHOOSES TO UNDERTAKE THE CHARGE OF A HUMAN CREATURE HELPLESS, EITHER FROM INFANGY, SIMPLICITY, LUNACY OR ANY OTHER INFIRMITY, HE IS BOUND TO EXECUTE THAT GHARGE WITHOUT NEGLIGENCE. STONE AND DOBINSON: Stone and his mistress agreed to care for his sister, suffering from anorexia. As her condition deteriorated, she became bed-ridden but no help was summoned and she died THEY WERE CONVICTED OF MANSLAUGHTER BECAUSE THEY HAD ACCEPTED HER INTO THEIR HOME AND SO ASSUMED A DUTY OF CARE FOR HER. Scanned with CamScanner\ Journal of Criminal Law JCL 74 (163) } April 2010 Liability for Manslaughter by Omission: Don't Let the versity: e-mail; CElliott @citv.ac,uk, © Vathek Baby Crown! Cothe“ine Elliott Senior Lecturer Cl pod Pubilshing, 2010 ! Abstract By removing the common Jaw rules on a duty to act from, Hiabitity for mans! ter by cena e aan CUTE TETETTUTTTETTOn of the Hause of tords in Rw Adomako a oe arstobe ot aw wou “an nent ofboth a duty to act anda duty of cre anpe sec at a harm by ar os does not watOMaNEa woh qo omissio “995) The curren duplicitous require ‘onfusing both the trial yudge and the jury. The conduct was less morally reprehervable than where harm is caused by an act and this reform tially bring the law more closely sto line with society's moral values, The law .d due to the other requirements fe would therefore potent would be rendered cleacer and simpler and snjustices would be avolder of billing by gross carelessness, including causation and pros choose to walk by a of the Law Commission's proposed offence carelessness. Through this reform justice could at last be offered should a stranger drowning baby Keywords Manslaughter; Omission; Gross negligence; Duty of care: Duty to act. Homicide Criminal lawyers have long pondered over the rights and wrongs of imposing liability for an omission. i(The moral tensions in the law are highlighted the classic example of a stranger walking, past a drowning baby 2 The public outrage Following the death of Baby P3 highlights hows important inis “that members of society recognise their duty to act fo protect the vulnerable. The government has Unexpectedly launched a major reform of the substantive criminal law’ and its eyed are currently focused on the law of homicide Major reforms to the partial defences to murder have been included in ion wall ao be given | the Coroners and Justice Act 2009, and the government has stated that considera! ions regarding the homicide offences.5 This context makes lations are the right way farward for the “\ tothe Law Commission's other recommendati ressive and, it all the more important that the Law Commission's recommend; term futur. of she criminal law) While its proposals on homicide are generally very impr ‘one particular issue which Jane: detailed,6 this is a broad area of law and this article will seek to highlight deserves further consideration. This issue is when liability should be imposed for manslaughter by omission. Follawing the case of Rv Lowe, 7 Habihty for an omission will not be imposed under the heading of constructive manslaughter, o the only possible basis for liability is at the moment gross ighter and under the Law Commission's recommendations, killing by gross negligence manslau arelessness 8 The current law is unnecessarily restrictive and complicated by requiring both a duty to fore ability for « act under common law and a duty of care (defined according to civil law principtes} b double duty is duplicitous and in such cases The critical issue should be manslaughter by omission will be applied The requirement ol t restrictive, posing an unnecessary obstacle for criminal liability inal liability could then be imposed where the other whether a person owed a duty of care, c elements of gross negligence manslaughter are saustied, which could inclucte where a member of the public walks past a drowning baby without offering assistance. Michael Moore has observed that Viability for omissions should only be imposed for omissions ‘that violate our duties sufficiently that the injustice of not punishing such wrongs outweighs the diminution of Nberty such punishment entails”.9 Thus, it comes down to a question of proportionality.10 Scanned with CamScanner88 Logat Studies Liability for omissions in the criminal law J. Smith Prefeworef Law University of Nomnngham, Cocunun lagers have long shown a remarkable reluctance to impute eriminal liability for omissions. Such liability, 11 bas recently been said, is ‘uncongenial" — und this »cems to be right. Even where the law do in reality, impose Viability for omistions we Rad courts and writers trying to explain the phenomenon on ground ‘The (ecling zeems to be that, beeaute the imposition of liability for an omission implies « duty to act st is an interterenee with the liberty of 3 person why “vishes only to mind hus own business and Jet others get on with eninding theirs. Mareaver omissions do nor cause evil results in the same dbvious sense as acts. Since, ex Aypothen, the defendant dues the evil result would necessarily occur in precisely the same way if, at the mument of the alleged omission, he did not exist. The ften repeated example, found in Stephen's Digat of the Criminal Law? and elsewhere, is that of the passer-by who sees a child drowning in a shallow pool, He could easily save the child without risk to himself but he passes by and allows it drawn It appears that at cummam law he commits no offence. He did not drown the child. If he had nut come along, it would have drowned in just the same way ol Professor Hyman Gross on omiasions One distinguished modern writer, Professor Hyman Gross, appears to no su far as to say that there is no such thing as liability for a pure omission.” He states that ‘in laws creating criminal omissions there ix conduct required! for Kinbility though Hatilicy is nce for that conduct alone? Now it is, ef eouree, tence that there are many provisions which illegal ‘tn do something unless some thing is abo done ic of musical performance witheut the cunsent make Broadcasting a dram of the performers, driving a car without third-party insurance, selling iee-cream in a public pluce withvut conspicuously displaying a notice af the vendor's name and address, ere examples taken from Faglish law.’ These cases are perhaps indistinguishable from others which no-one wauld think of as consisting in an omission. Larceny was taking 1 Hyman Gross A Theery af Criminal fustier (1979) p 62 2. Fletcher Rethenteng Cnmina! Law (1974) p 371: “Of course, a bystander may cause death in the trivial sense that “but for’ his failure uw» act, the victim would not have died. But there 1 nu causing of death in the seus implicit in the trainee of Iewmicietal vinting, cain), Artie 212, . Thurs uf Criminal faitica 9 G3. Tr ts, apparen 1 ution” that fivbility for wn omni is simply leability for failing wo do what is requited. 5 Smith & Hogan Comino! Lax (5th edn) p 46, Scanned with CamScannerminal sanctions only those BILITY FOR FAILURES TO ACT JOHN: KLEINIG* nd for cr 0 act provides a grou" le is no innocent truism, for it encompasses ve id to urgent need. Easity rendered Fequired unless the nanrescuer stands in sdeemed ta impy or man [INTRODUCTION In Anglo-American law, the failure t act! This tul late @ 4 relatianshil where there is a pre-existing legal duty to cases in which the failure to act consists of a failure to resp) assistance to a drowning of otherwise imperilied child is 0 Some legally recognized relationship to the chitd, and the relationship wellare duty to that child. Over the years, the extent and terms of that togally recognized 1 have been broadened, The duly to render easy aid which had its eaots in commen law duties {in ally extended to contractually particular, those af a parent toward his denenclent children, was grads et based relationships (such as those between a master and his apprentice), and later widenes to I falls far short of encompass certain relationships based on informal “undertakings.” But the result stil h 4a requirement thal a bystander render easy aid to the sistance and has the ability to fy in Anglo-American. the rile in ninst Eusopean legal systems, namely, gravely impe-ilied, provided he has recognized the opportunity to give as construed so narrow! idential, some moral, some be confined to two status of Failures 10 do $0, 2 Why should the requirement to render easy aid be c' law? Many reasons have been proffered-some conceptual, some jurispru practical. 1 do not propose to consider them all in this article. My discussion wi issues that are most likely to be of interest to philosophers. The first concerns the poses. The second concerns the act-whether failures to act can be construed as conduct for legal pur causal significance of failures to act-whether failures to act can be so related ta harms that iis appropriate to contemplate criminal liability for these failures. The two issues are closely connected Whether failures to act will be eligible for a place in causal explanation will depend significantly on -onclusions reached concerning their ontological status. My starting point is an investigation of some of the vocabulary by means of which various failures to act are signalled. This endeavor will serve as a basis for distinguishing failures to act from certain ather kinds of nondoing to which they are often assimilated or with which they are often confused. Scanned with CamScanner