Transcription
Okay, welcome to the video lecture on omissions as part of actors reus and the picture in the middle there pretty much sums up the basic principle. Most of my students will not only know that but also, I am probably causing them a wee bit of a smile.
I'm going to start off with two key conventions about omissions. The first key convention is that normally the law, the criminal law, does not require a person to act to prevent harm or wrongdoing or to prevent a crime being committed. I'll give you an example of this using this poor little cherub who's here. Imagine that A walks past B, who was drowning in a pond, and fails to help them. Although A may have technically failed to save B, he did no positive act to cause B's death. B died not because of A's failure to act, and therefore a person does not commit a crime or become a party to it solely because he might reasonably have prevented it. If I walk past an alley and see somebody being stabbed, I don't have to intervene; that doesn't make me fall foul of the law. And therefore, failing to rescue this poor little cherub wouldn't have made any difference at all; wouldn't have made me criminally liable.
The second convention is that some offenses, such as assault and battery, cannot be committed by an omission. But just remind me, we're going to look at Santana Bermudez in about ten minutes' time or so, and we'll see whether or not that rule is sort of changing slightly. But if the general rule is that omissions will not make you criminally liable, there are a couple of occasions, or there are, there are a set of occasions in which you can be found liable, and those are in certain constructed positions. The first of those is what would be known, the first of the exceptions would be known as a direct liability.
Alright, so a direct liability comes directly from statute; so where the statute says you must act, and we're going to look at two or three of those in a moment when we look at duties arising from statute. The second exception is known as a derivative; so a derivative liability, and a derivative liability is one that is constructed; certain people have a duty to act. And I've used nurses there because that's a good example. A nurse who fails to look after, or looks like I've written nuns—not nuns, they're nurses—it a nurse who fails to act as part of a job to care for somebody would, of course, be not only creating an admission, committing a no mission, but also be liable.
So let's just have a wee look at some examples. In the first instance, we'll look at direct liability; those that are, we are directly told you must act. And I've given you three examples here to use in the exam. The first is the Children and Young Persons Act 1933, and that essentially says that a person over sixteen who has care of a child under sixteen has a legal obligation to care for them. So failing to care for that child is an omission, but it will make somebody liable. The second is the Road Traffic Act 1988, section 170, and that is failing to stop if you have an accident in your car. You are required under this section to stop and to swap details with the person whom you had an accident with. Failing to do that, an omission, means that you would be criminally liable. And finally, because it fits with the picture we're looking at, section six of the Road Traffic Act, which is a sample of breath, effectively the alcohol when you are required by a police officer to give a sample of breath to see whether or not you've been drink driving, you are by law required to do so. If you do not, if you omit to give that sample of breath, you will find yourself criminally liable. So those are the some examples of the direct liability created by statute.
But let's spend the rest of this session looking at derivative liability; liability in which a duty is constructed, normally because of special positions. And the first of, we're going to look at is we're going to look at the duty arising from a special relationship. And you can see here I've used an image of a child with, it's presumably his mother, I would think, that it's very old, giving it medicine. But, and the key case, you're going to see a lot of cases from here on in, and the key case here is Gibbons and Proctor. It's one that will hopefully trip off your lips for the rest of your time with studying the law; Gibbons and Proctor. So in addition to the statutory requirement that we've just seen here of the Children and Young Persons Act, common law creates a duty on a parent to act for the welfare of their child, to look after their child, and if harm is caused to that child by a failure to act, then they may be criminally liable for the result in harm. So what happens in Gibbons and Proctor? Well, in Gibbons and Proctor, the defendant and his common-law wife failed to feed the man's seven-year-old child, who was called Nellie; barren a minor wasn't 1918, which is probably why she was called Nellie. And she died from starvation. The woman, the stepmother, hated Nellie and was clearly the motivating force here, and essentially the judges said that where there is a duty to act, failure to do so can lead to liability, even for murder if the necessary mens rea is present. The woman was held liable because, while the child was not hers, she was living with the man and had accepted his money for food. The courts regarded the parents' duty towards that young child as so self-evident as so as not to require analysis or authority, and she was found, they were both found guilty of murder. Alright, so that's poor old Nellie, starved to death. Right, Gibbons and Proctor.
The next circumstance is where we assume care; so the parent-child relationship is an assumption, but there are occasions in which we assume care for another. And in this instance, we're going to look at a case called R v Stone and Dobinson. There's no statutory duty of care or assist a person over the age of sixteen, but there can be a common-law duty. The common law recognizes that the duty may arise in a family relationship, I don't know, where a couple live together as husband and wife, or a child continues to live and dependent upon the parents, I have to become an adult perhaps if they're poorly, but also if a person voluntarily takes to care for another who is unable to care for themselves as a result of age, illness, some other issue, that person may therefore incur a duty to discharge that undertaken, at least until such time as they handed over to someone else. And this is the case in Stone and Dobinson. Stone and Dobinson allowed Stone's ill and unstable sister—and if you thought Nellie was funny, this is funny—so the ill sister, Fanny, to live in their house. And Fanny was suffering from anorexia; she was an adult by the way, she was just a sister. And but Fanny was suffering from anorexia, and her condition deteriorated, and she became so ill that she became bedridden. She needed medical help, but none was summoned. So Stone and Dobinson didn't get her medical help, and she eventually died in squalor, covered in bed sores and filth. The judges said that because they taken Fanny into their home, because Stone and Dobinson had taken Fanny into their home, they had assumed a duty of care for her and had been grossly negligent in the performance of that duty. The fact that Fanny was Stone's sister was merely incidental to this; it didn't matter that it was his sister, they had assumed a duty of care by taking her in, and they were both found guilty of manslaughter by gross negligence.
So we've got duty arising from a special relationship, and we've got the assumption of care for another. The third that I want to look at is contractual duty. And a person may, in some cases, incur criminal liability through failure to discharge an official duty or contractual obligation. The requisite mens rea is also required, of course. And the key case here is Pitwood 1902. And the principle in Pitwood would extend to liability for a lifeguard, for instance, at the swimming pool that we saw earlier on. What happened? Well, the defendant, Pitwood, at a level crossing was a level crossing keeper, and he negligently left open the crossing gate, and that led to the death of a carrier, or a carter, sorry, whose cart was struck by a train. The principle was that the defendant had a duty to shut the gate, and he owed that duty to his employers rather than to the, believe it or not, but it was enough that his negligent failure to act led to conviction, and he too was guilty of gross negligence manslaughter. Okay, so we've got a special relationship, assumption of care, and we've got a contractual duty.
Now let's have a look at public position, and there is, there are two key cases here. Now, actually, the first is Dytham, and the second is Norton. And what that essentially says is if you are paid to look after the public, then you should have a duty to do so. In the first instance, Dytham says effectively that the defendant, who was a police officer, was on duty and in uniform some thirty yards away from the entrance to a nightclub. He saw a man ejected, and shortly afterwards, there's a fight which involved crying and screaming and all that sort of kerfuffle that goes on at nightclubs at two o'clock in the morning. And the man was beaten and kicked to death in the gutter outside the club. The police officer left without calling for assistance or summoning an ambulance. An interesting, the Lord Widgery, who was the judge in the case, said the allegation was made was not of mere nonfeasance but of deliberate failure and willful neglect. This involves an element of culpability which is not restricted to corruption or dishonesty but which must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment. Essentially, if your behavior that you are paid to do is so bad, then you will be found liable. Now what's interesting is that was a police officer on duty, and the latest case is Norton, Harvey Norton in 2001, where a police officer was off duty and convicted of failing to act. So this notion that if you were a nurse, perhaps, does that mean that your duty extends when you see an accident by a roadside? So it's an interesting shift in the law here about when somebody in a public position is required to act.
And finally, there's this notion of creating a dangerous situation. If a person creates a dangerous situation through their own fault, then may be under a duty to take reasonable steps to stop that danger and may therefore incur criminal liability for failing to do so. And our two key cases, one we've seen, or we had some idea about earlier, Santana Bermudez, which we'll come back to, but the second is Miller. And Miller is quite a famous case; we use it on a number of issues. But the defendant is a vagrant, a sleeping in a building; he fell asleep on his old mattress. When he woke up, he saw that the cigarette he'd been smoking had caused the mattress to start burning. Rather than put the mattress out, he got up, moved to another room, and fell back to sleep again. The fire flared up and spread and burnt the house. And essentially, the judge in that case, who was Lord Diplock, said he was convicted for arson, effectively not for starting the fire but for failing to put it out. So he was found guilty of arson by criminal damage. The second is Santana Bermudez, and that's quite interesting. The defendant injured a woman police officer by allowing her to search him, knowing he had a hypodermic needle in his pocket which stabbed her. The defendant denied having any needles or sharps when asked, and he was convicted by the magistrates but acquitted at Crown Court on appeal by way of case stated from the Crown Court. The prosecution of Perrault was allowed. So although he was not guilty, it would be known, and the principle was that here someone has created a danger and thereby exposed another to a reasonably foreseeable risk of injury, and there was an evidential basis for the actus reus of an assault occasioning actual bodily harm. So that's a bit of a change from what we said earlier about not all offenses can be committed by an omission, and if battery is one of those offenses, when there's a little odd because Santana Bermudez perhaps goes against that.
So that's a simple run-through. There are our sort of main areas: we've got statute, and we've seen the Children and Young Persons Act and the Road Traffic Act; we've got a duty arising from a special relationship with Gibbons and Proctor; the assumption of care for another, which Stone and Dobinson; a contractual duty with Pitwood; we've got where public position requires a duty, and we're using Dytham and Norton as our cases there; and finally, the creation of a dangerous situation, and in that instance, we'll look at Miller and Santana Bermudez. Okay, and that sort of pretty much brings us to a close on our omissions; that's all you really need to know. And next video, we will look at causation.