Actus Reus Omissions & Involuntary manslaughter 1

where is omission a part of actus reus?

direct liability

where will liability for an omission be found?

1. The offence is on which can be committed by a omission (main examples are murder, manslaughter, but also possibly non-fatal offences and some property crimes). D is never just guilty for an 'omission'; D is guilty of a specific criminal offence that has been committed by an omission in circumstances where omissions liability can be imposed.

2. D has a duty to act (as recognised by specific legal categories of duty)

3. D unreasonably fails to act on that duty.

what are the 5 different categories of duty to act?

1. Offence specific duties: Duty to act is imposed in a particular statue or by common law. Failure to act constitutes the specific offence. For example, Road traffic Act 1988, s.170(4) failure to report a road accident. Dytham: convicted of CL offence of misconduct in public office. D was a police officer who had failed to intervene in an attack outside a nightclub where V was kicked to death by bouncer.

2. Contractual duties: This is where D has contractual duty to act, this may be recognised as forming basis for omissions liability in criminal law. For example, Doctors and Carers. An example of this would be Pittwood (1902) 19 TLR 37: D was a gatekeeper at a railway, he had opened the gate to allow a cart through and then forgotten to close it. Another cart was hit by a train and the train driver was killed. D was liable for manslaughter based on his failure to preform his contractual duty to close the gate.

3. Duties based on certain familial relationships: This is common law based and it unclear on how far this extends. It is based on interdependence? A duty has been recognised between a married couple. Hood (2004) 1 Cr App R 431: husband guilty of manslaughter when failed to summon medical attention for his wife. Duties are firmly established in relation to parent and child. An example of this would be Gibbons & Proctor (1918) 13 Cr App R 134: Father- failure to feed liable for murder. However, this may not extend to adult children (Sheppard 1862 Le & Ca 147, no duty to 18 year old daughter. Additionally, not in relation to child to parent and not between siblings or grandparents and grand-children.

4. Voluntary assumption of responsibility/ duty of care: A duty arises where D has voluntarily undertaken to care for V in a situation where V is unable to care for themselves. The duty is not based on contractual duties (between paid carer and V), or the status of the relationship between D and V or on living together. The duty is based on D having assumed responsibility for V who is unable to care for themselves. This may be an implicit or explicit assumption of responsibility

Stone & Dobinson (1977) QB 354 (CA):

V came to live with her brother (S) and his partner (D). V suffered from anorexia nervosa and became increasingly unwell and eventually became bedridden. S & D did nothing to help her. She died and they were convicted of gross negligence manslaughter. Duty arose where D undertook the care of a person who by reason of age or infirmity was unable to care for themselves

creation of a dangerous situation.

This is where D has created a dangerous situation, D may be under a duty to prevent harm resulting

Miller (HL, 1983)

Facts: D was drunk and fell asleep with a lighted cigarette in a house where he was staying, when he awoke he discovered the mattress was on fire, he moved into another room and did nothing to stop the fire.

Procedure: He was then charged with arson (criminal damage by fire) and convicted, CA: dismissed appeal and conviction upheld, HL: Certified question because CA dismissed appeal.

The legal issue is, could D be liable for arson, a result crime?

Structure of offence: criminal damage/arson as per s1(1) and (3) Criminal Damage Act 1971

• AR – (conduct) destroying or damaging property belonging to another

• MR – intending to destroy/damage or being reckless as to this

• -> the statute does not specify the type of conduct: action or omission

• Sub-legal issue: which conduct did D commit? An act or omission?

Problem: Is it an act?
The act (setting fire) was not accompanied by the requisite mens rea (intention or recklessness) for the offence of arson (= issue of coincidence).

• note there is a requirement of coincidence where the actus reus and mens rea for the offence must occur at the same time in order for the offence to be established. If they occur at different times, then no offence

• Where AR occurs before the MR which is the case here, there are two options for dealing with this: through the creation of danger rule (covered now) or continuing act rule (see slides 25-26)]

• see rules on coincidence for more detail on this and for exception to the rule where the MR precedes the AR.

• His mens rea (reckless as to damage) occurred at a time when the positive act had already been accomplished

what is the legal test for omission?

D has done something whereby he has (inadvertently) created a dangerous situation, and on becoming aware of that danger, he fails to take steps to avert it. An omission