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Criminal Law B > Omission > Flashcards

Flashcards in Omission Deck (27):
1

A Ashworth: omission is properly applied only to...

omission is properly applied only to a failure to do things which there is some kind of duty to do, or at least things which it is reasonable to except a person to do

2

Conventional View [12]

-reluctant to impose the liability, only in clear and serious cases
-confined to duties towards those for whom we voluntarily undertaken respon
-negative duty to all v positive duty specific group
-failure to perform an act with foreseeability morally less than performing the act, even though same consequences [Philmore LJ in Lowe]
-minimalistic stance -> respect for social values + social needs, setting limits to the freedom of easier than requiring certain actions
-individual autonomy and freedom
-chance, reducing the predicitibility of one's obligations
-morality of aspration not the morality of duty
-too pure: individual autonomy as a supreme value -> we need social principles rather than isolationist individualism ->social co-op

3

Social Responsibility View [11]

-co-op element
-view of omissions begin from the duties of a citizen as citizen. (a) there is a threat of harm to another citizen who is in sudden peril, and has not voluntarily entered that condition, and (b) a citizen is in a position to prevent the harm or its continuance or to take steps towards the enforcement of the law.
- Promulgation
- Imposing duties to act - heavy burden of formulating defensible and workable criteria
- requiring each citizen to offer assistance to others in peril might on the one hand reduce the autonomy and privacy of others
- on the other hand make citizens into busybodies
- “social responsibility” view is unpractical because it would require each of us to avert or alleviate large numbers of situations which we know about.
- the principle of legality - it maintains that citizens are so unaccustomed to thinking in terms of legal duties to act except in circumstances which are well-defined and well-publicised.
- The question of how extensive one’s duty should be.

4

types of omission offences

1. Failing to do certain acts
2. Hybrid Act-omission offences
3. Offences phrased in terms of acts for omissions ay suffice

5

Voluntary

The requirement of voluntariness -> voluntary
unconscious or uncontrollable movement, a failure to act when required (i.e.  an omission)? is not “voluntary” if the duty-bearer is incapable of doing what is required?
Physical incapacity?

6

Causal Relationship

Once voluntary omission to perform a duty, the next question is whether it can be said to have caused the result.
• uncertainty over the relationship between causation and omissions. 
• the non-performance of a duty, the criterion of causation might appear to be submerged within the duty concept.
o English law: A caused the death of his child by making no effort to rescue him from drowning, whereas B did not cause the death of a stranger by making no effort to rescue him. On this view, both the duty relationship and the causal relationship are absent in the case of the drowning stranger.
• OR one must accept that the duty was present in the child case and not in the stranger case, and seek a concept of causation which assimilates the two cases.
o this concept must avoid regarding all non-acting as a cause of all events or results which could have been averted by acting
♣ we would all be responsible for causing myriad misfortunes each day
o In this way the argument returns to the duty-concept as the primary criterion, both because it establishes moral (if not strictly causal) responsibility and because it delineates in time and space the number of people who may be said to have omitted.
o Thus, we have to establish that an act and an omission are morally equivalent. Under those circumstances no separate causal enquiry is necessary, for a sufficiently close link exists.

7

Two subsidiary points about causation

First, those who regard the general “but for” standard of causation. If the court must be satisfied beyond reasonable doubt that the result would not have occurred but for this defendant's omission.
o Secondly, form of “failing to do x” make no reference to results and therefore side-step all problems of causation;
♣ “conventionalists” -> Much depends on the requirement in the offence. If the offence requires intention, there may be no difficulty in holding that a person who knowingly fails to feed a young child intends to cause its death, but it may be awkward to describe a person who accidentally causes a fire.
♣ The latter example may involve a stretching of language, since the idea of intending a consequence is to occur. Since “knowingly” and “intentionally” stand on the same level of culpability, as do “recklessness” and “reckless knowledge” at a lower level, one might argue that the slight awkwardness about “intention” should not be accorded any practical consequences in the law.
accidentally caused but then failed to response – but look at the awareness of the consequence

8

Language

• linguistic conventions vs the principled approach (moral/social) - did mother actually ‘kill the child”? The Law Commission had thought to redraft to “casuing death’ – so as to ensure that murder and manslaughter by omission remain offences.
• LC's general approach to omissions
o the first draft code contained an express provision tending to limit omissions liability to established “duty-situations” and to offences which specify that they may be committed by omissions, but this was criticised as an unwarranted narrowing of the law .

o The Law Commission’s solution is to re-draft some offences in terms of “causing” the result, in order both here and generally “to leave fully open to the courts the possibility of so construing the relevant (statutory) provisions as to impose liability for omissions”
• If the Code is unable to give any guidance, the issue will remain largely one of judicial interpretation.
• Difficulty that our language is replete with active verbs
o “Usage still draws the line short of causing things to happen by doing nothing except letting events take their course without intervention.” 
o Whether we term certain events “acts” or “omissions” may be both flexible in practice and virtually insoluble in theory:
♣ for example, does a hospital nurse who decides not to replace an empty bag for a drip feed make an omission, whilst a nurse who switches off a ventilator commits an act? It would seem wrong that criminal liability or non-liability should turn on such fine points, which seem incapable of reflecting any substantial moral distinctions in a context where the preservation of life is generally paramount.
♣ However, judicial decisions in the medical sphere have shown some attachment to a distinction between allowing a patient to die and causing a patient's deat
♣ The distinction may, as Kennedy remarks, be regarded as “important as a social precept, while the desired end is accomplished.”

• The proper solution is not to warp the concepts of omission, duty, knowledge and causation, but to provide for such cases to be determined on new principles of JUSTIFICATIONS. This would require the courts to be explicit about the grounds for exonerating doctors or nurses, rather than concealing the reasons behind the act/omission distinction.
• the courts have not found a consistent approach to conflicts between linguistic convention and general principle. Can a landowner be said to “cause polluting matter to enter a stream” by failing to notice that a crack had appeared in a settling tank, through which the pollutant escaped? The key question was whether the term “cause” embraces omissions.
• At one level it could be argued that where a statute requires “an act” this clearly excludes a mere omission; but, at the level of general principle, it could be said that the criminal law should generally ensure that acts and omissions (where there is a duty) are accorded equivalent treatment.
o Two reasons might be given for taking this approach. One would be the context of the offence and the mischief at which it is aimed
o The second and more general reason would be that acts and omissions are morally on a similar level and should therefore be accorded equal treatment by the law unless a reason to the contrary appears. This proposition draws strength from the social responsibility view.
• The argument here is that there should be recognition of a principle that criminal statutes should be interpreted so as to apply to omissions as well as to acts, where a relevant duty can be established, unless the context indicates otherwise.

9

Duty Requirements [PRUDorCC]

1.Prior Dangerous Act
2. Relationship Duties
3. Undertaken duties
4. Duties of ownership or Control of Property
5. Citizenship Duties

10

Miller

o Miller (1983) -> D accidentally started the bed burning with his cigarette. He left the bed smouldering and moved to another room. The fire spread and engulfed the house. D admitted that he knew he had set the bed on fire: all he said was that he had nothing with which to put it out.
o He was convicted of recklessly damaging the house by fire.
o HoL, is to hold that starting the fire was D's act, that this act continued as the bed burned, and that when D realised this and knew that the fire might spread, this amounted to recklessness which combined with his continuing act so as to constitute the crime whenever a person creates the risk of harm by an act and subsequently realises this risk, there is a duty to take steps to avert or minimise that risk.

11

Miller

o Miller (1983) -> D accidentally started the bed burning with his cigarette. He left the bed smouldering and moved to another room. The fire spread and engulfed the house. D admitted that he knew he had set the bed on fire: all he said was that he had nothing with which to put it out.
o He was convicted of recklessly damaging the house by fire.
o HoL, is to hold that starting the fire was D's act, that this act continued as the bed burned, and that when D realised this and knew that the fire might spread, this amounted to recklessness which combined with his continuing act so as to constitute the crime whenever a person creates the risk of harm by an act and subsequently realises this risk, there is a duty to take steps to avert or minimise that risk.


---

• In Miller, as in these other two cases, it is the authorship of the original risk-creating act which justifies the imposition of the duty upon D. The passer-by who saw the fire would not, on this reasoning, have a duty to summon the fire brigade. The law is justified in imposing this duty on D because of his causal responsibility for the creation of the risk, because D is present at the time and (presumably) able to take action, and because D would be readily identifiable in such a situation as the person with the duty.
o On that basis this head of omissions liability might be brought within the conventional view; it would certainly be easy to bring it within the social responsibility view.

12

Fagan

• Where D created the risk intentionally in the first place there is clearly a duty to prevent it from materializing, and a mere
renunciation of intention after the original act but before the prohibited result is insufficient to relieve D of liability.
• where D was originally unaware of the risk or effect of his conduct.
o Fagan
♣ Where D inadvertently drove his car on to a policeman's foot and then deliberately refrained from moving it, this was held to be a continuing act rather than an act followed by an omission.

13

Lowe

• Lowe  (1973 - denying that commission of the offence of wilful neglect was necessarily an “unlawful act” for the purposes of manslaughter,
• whilst in Stone and Dobinson  (1977) maintaining that a duty towards a relative (a fortiori towards one's own dependent child) can form the basis for manslaughter conviction.

14

Gibbin and Proctor

the courts regarded the parent's duty towards a young child as so self-evident as not to require analysis or authority. (so long as the parent is shown to have had the required mental element).

15

Stone and Dobinson

o S and D allowed S's sister to stay with them as a lodger. The sister developed anorexia nervosa, stayed in her room and became very ill. S and D made some ineffectual attempts to find her doctor. The sister subsequently died. The Court of Appeal upheld the defendants' convictions for manslaughter. It was held that S had a duty because the sister was occupying a room in his house and was a blood relative. D was held to have “undertaken the duty of trying to wash her, of taking such food to her as she required, …” So it seems that the Court of Appeal held that by giving assistance to S's sister D undertook to continue this assistance.
o if she had done nothing she would have had no duty of this kind (although she may have had a duty towards the sister as a member of the household, a point which is undecided).
o It is unclear whether D would have been held to have undertaken this kind of duty if the sister had been living alone in the next house, and as she fell ill D had started to take food to her, etc.

16

Same household limitation cases:

Against 18th century authority
Smith (1826) which denied any duty towards a mentally disturbed adult brother
Shepherd (1862) which denied any duty toward a daughter aged.

BUT would tend to support the more modern cases such as Chattaway  (1922) which imposed a duty towards a daughter aged 25 and Stone and Dobinson (1977) which accepted a duty towards an elderly sister.

17

Family Relationships only

People  v. Beardsley  (1907)  where a woman who spent the weekend with D took an overdose of tablets and D, knowing that she was in a serious condition, simply arranged for her to be carried to another apartment, where she subsequently died?

18

Stone and Dobinson

o S and D allowed S's sister to stay with them as a lodger. The sister developed anorexia nervosa, stayed in her room and became very ill. S and D made some ineffectual attempts to find her doctor. The sister subsequently died. The Court of Appeal upheld the defendants' convictions for manslaughter. It was held that S had a duty because the sister was occupying a room in his house and was a blood relative. D was held to have “undertaken the duty of trying to wash her, of taking such food to her as she required, …” So it seems that the Court of Appeal held that by giving assistance to S's sister D undertook to continue this assistance.
o if she had done nothing she would have had no duty of this kind (although she may have had a duty towards the sister as a member of the household, a point which is undecided).
o It is unclear whether D would have been held to have undertaken this kind of duty if the sister had been living alone in the next house, and as she fell ill D had started to take food to her, etc.

19

instan

• The D lived with her aunt, who was suddenly taken ill with gangrene in her leg and became unable either to feed herself it to call for help. D did not give her any food, not did she call for medical help, even though she remained in the house and continued to eat her aunt's food. The aunt's dead body was found in the house decomposing for about a week. 
• Held: A duty was imposed upon D to supply the deceased with sufficient food to maintain life, and that, the death of the aunt having been accelerated by the neglect of such duty.

20

Pittwood

o D was employed as a gatekeeper at a railway crossing. One day he neglected his duty and a person who was using the crossing was killed by a train.
In Pittwood the judge stated that the decision was “governed by” Instan, without referring to the fact that in Instan  D's contractual duty was owed to the victim whereas in Pittwood  it was owed to the employer rather than to the victim. The assumption here, as in most of the English cases, was that a contractual duty per se  is a sufficient basis for criminal liability for an omission, no matter to whom it is owed

21

Tuck v Robson

o D was a publican who failed to intervene to prevent customers on his premises from drinking after hours. He was convicted of aiding and abetting their offence.

22

DuCros  v. Lambourne  (1907)

o D was the owner of and a passenger in a car being driven by another, and failed to say or do anything to dissuade the driver from committing the offences she was committing. He was convicted of aiding and abetting her offences. The offences in both these cases were “victimless” crimes, and therefore the legal issue is slightly different from that considered in the previous paragraphs.

D is not being held liable for causing a result, but is being held liable as a party to an offence which he or she took no steps to prevent. In effect, a property owner is being coopted as a police officer in relation to his or her own property, or at least being given extra duties to help in preventing crime
o In a sense this might appear to be antithetical to any right of privacy. However, this privacy argument cannot be pursued far in the criminal law, when the safety of others or their property is an issue.

23

Dytham

• a police officer saw one man being beaten and kicked by three others, but he took no steps to intervene or to call assistance. The victim died. D was convicted of the common law offence of misconduct of an officer of justice
• The defendant was a police officer. He stood by whilst a bouncer kicked a man to death. He was charged with the offence of misconduct in a public officer. He argued that the offence could not be committed by an omission as it specifically requires misconduct.
• Held:
• The offence of misconduct in a public offence can be committed by an omission. The defendant's conviction was upheld.
• Fined 150$
• the seriousness of the offence is measured in terms of the derogation from duty rather than in terms of the actual or probable consequences of that derogation.
• This legal classification should be contrasted with that in the property-owner cases, where the publican and the car-owner were held liable as accomplices to the offences which they failed to take steps to prevent. They were therefore convicted and liable to sentence as 456 principal offenders, although their actual sentences might be somewhat lower than those of the actual principals.
• To regard the bystander's non-intervention as complicity in the crime being committed surely over-stretches a concept which is already considerably extended.
•  be a less fair representation in that it would not state the nature of the offence in which the citizen failed to intervene.
• Conduct. A discrete offence of failing to take reasonable steps towards law enforcement would offer one way of dealing with such persons. The label would be fairer in the sense that it would describe the citizen's precise role in a way that conviction of the offence witnessed (as a principal, though under the doctrine of complicity) would not, but it would perhaps be a less fair representation in that it would not state the nature of the offence in which the citizen failed to intervene.

24

MacPhail

• Culpable and reckless endangering of the lieges. 'The lieges' simply means the public or a section of the public
Facts
• The accused was a farmer who was charged with both culpable and reckless endangerment. Man set fire to straw, which caused smoke to cover road and effect the visibility (as two vehicles collided). It was further established that during this period of about 20 minutes in which the fire was burning, the accused took no action whatsoever to put out the fire (total ignorance as if he did not know what was happening). This was reckless endangerment of the lieges.
Held
• Sheriff held, as a farmer he knew what could have happened. By allowing the fire to go on he demonstrated a reckless indifference to the consequences of his actions for the public generally and for the particular road users who were injured, and accused found guilty.
The Sheriff (J. C. McInnes).
• It seems to me that the accused did nothing wrong in setting fire to a pile of straw by the gate into the field. It is what he failed to do thereafter which gives rise to this prosecution.
• He could have ensured that the fire which he had started had burned itself out and would not spread. He could have put it out but did not. I believe that he knew very well that the fire was spreading and did nothing to stop it.
• It was foreseeable that the closer the fire got to the public road the greater was the danger of smoke affecting the visibility of road users.
• It was also foreseeable that if the fire spread to the embankment there would be a greater risk of smoke affecting visibility from combustion of the materials then to be found on the embankment.
• It was not disputed that such conduct can be criminal. It was accepted that the standard is that set out in the cases of Paton v. H.M. Advocate , 1936 S.L.T. 298 and Quinn v. Cunningham, 1956 S.L.T. 55; 1956 J.C. 22.
• In Paton, Lord Justice-Clerk Aitchison said: “it is now necessary to shew gross, or wicked, or criminal negligence, something amounting, or at any rate analogous, to a criminal indifference to consequences, before a jury can find culpable homicide proved.”
• Although the Lord Justice-Clerk regarded that state of the law as one which might have to be reconsidered, his view of the law was confirmed in Quinn in which the Lord Justice-General said this of the foregoing statement: “This represents the standard of culpability which must be established in such cases in order to constitute a crime at common law based not upon intent, but upon reckless disregard of consequences… . The standard of culpability must be the same, whether its consequences are death or not” (1955 S.L.T. at p. 56).
• the Lord Justice-General says that for a complaint to be relevant it must libel “recklessness so high as to involve an indifference to the consequences for the public generally.”
• The question is whether the accused's conduct reaches that standard. the accused's conduct does reach that standard.
• The dangers of straw burning when there is a wind are well known and would be particularly well known to a person such as the accused, who is a farmer in partnership with his father. To set fire to straw at the upwind side of a field creates an obvious risk of the fire and smoke spreading downwind. To leave the fire to spread and to do nothing whatever about it for at least 20 minutes, in my opinion demonstrates a reckless indifference to the consequences for the public generally and for the particular road users mentioned in the complaint.



25

McCue v Currie

• broke into the caravan and steal some objects and used the lighter to see. But then exploded and dropped on the ground and the caravan caught the fire. Fire was accidental. Accused agreed,
• court held it was accidental you couldn’t be found liable for the fire. This was a case about starting a fire. But the first was about the recklessness and endangerment, then we might have seen a liability. But the action was accidental therefore no criminal law.
• Even though that principle exists the pros needs to state that.
• Charged with attempted theft but not wilful fire-raising as it was an accident

26

Mallin v Clark

Fact:
• accused was arrested he was searched, and prior asked whether he had any sharp objects. He replied he didn’t know. They found a syringe. Reckless and endangerment.
• Appealed as a case of omission. The HC quashed the conviction - the prosecution failed that there was a positive duty. This was a case of omission; you must establish a duty.
• There was no finding that any legal warrant for taking the accused to the station or searching him was in effect, but it could be inferred that the police were exercising their powers of detention under s 14 of the Criminal Procedure (Scotland) Act 1995 . The sheriff convicted the accused, who appealed.
Held
• that properly read the charge was one of failing to disclose the possession of the syringe, and the Crown had not shown any basis for holding that a positive duty of disclosure arose in the circumstances, or how such a duty would be consistent with a detainee's right to remain silent under s 14 (9) of the 1995 Act (p 1205F-G and H-I); and appeal allowed .

OPINION OF THE COURT.—
• Counsel further submitted that there was nothing in the case to show that the “conduct” of the appellant on the occasion libelled amounted to “criminal recklessness in the sense of a total indifference to and disregard for the safety of the public”. This is a quotation from the opinion of the court in W v HM Advocate , a case involving a 14 year old boy charged with culpably and recklessly dropping or throwing a bottle from the 15th floor of a block of flats whereby another person was injured. It sets the standard for measuring whether conduct is to be held to be culpable and reckless.  In each of these cases in which the conduct had been held to be reckless, the accused had engaged in positive conduct which created danger to others.
• -Creation of dangerous situation (omissions)
-Man searched by police, police asks if he has a sharp object. Person being searched said nothing, but policeman injured himself on sharp object.
-Court didn't convict - no duty to tell police, because it conflicts with right to silence.
-However, may be different if you lied.
the existence of the syringe. - (if he had said no and was later discovered he had, this would be a criminal offence)
• We seem to spend more time here on procedural rather than substantive points, so it is quite agreeable to turn to the consideration of the topic of culpable and reckless conduct in Mallin v Clark 2002 GWD 26-885. (Is this charge becoming more common or is that a mistaken impression?) The allegation was that the appellant had recklessly concealed a used syringe in his pocket and culpably failed to disclose that fact to officers who were to search him, with the result that one of them was injured The appellant had apparently been asked whether he was in possession of any sharps and had replied that he did not know. . The appeal against conviction was allowed on the basis that on the particular facts of the case no proper basis for a duty of disclosure, especially when a possibility of involvement in criminal activity was involved had been established. The court recognised that it should be reluctant to make any decision which would expose police officers to unnecessary danger but felt it unlikely that a police officer would actually rely on a statement by a drug addict who was about to be searched. While the decision, respectfully, cannot be disputed, it may be that there is a case for legislation here. I mention the possibility that the charge may be becoming more common because it does seem to be a way round what we normally think of as mens rea. One should always be very careful, it is suggested, when dealing with alleged offences in which the actus reus involves omission rather than commission

27

Bone v HMA

o Child murdered by boyfriend, she is charged with culpable homicide - witnessing and countenancing a fatal assault. 
o Appealed.
o Test of reasonability both physicial and mental- She suffered pregnant, psychiatric and scared. 
-Not guilty as a reasonable person would have been scared to do anything.
o In certain cases we must look at the outside aspects of the whole circumstances
o -Duties arising from relationship (omissions)
- whilst a pregnant mother was found to have a duty to intervene to save a child, she was not considered able to in her state