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CRIMINAL LAW. Lecture 2: Liability for omission. Liability for omission. Though it will usually be the case that the accused will have performed some ‘act’ there are certain situations where the accused can be liable for omitting / failing to act There is no general duty to act…

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CRIMINAL LAW

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Criminal law

CRIMINAL LAW

Lecture 2: Liability for omission


Liability for omission

Liability for omission

  • Though it will usually be the case that the accused will have performed some ‘act’ there are certain situations where the accused can be liable for omitting / failing to act

  • There is no general duty to act…

  • …BUT D may be criminally liable for an omission where there is a legal duty to act


When might d be liable for a failure omission to act

When might D be liable for a failure / omission to act?

  • The accused may be criminally liable for omitting to act provided:

    • (1) The crime is one which may be committed by omission; and

    • (2) The accused is in breach of some legal duty to act


When does a legal duty to act arise

When does a legal duty to act arise?

  • (i) Statutory duty:

    • Failure to provide breath specimen; RTA 1988

    • Wilful neglect of a child; Children and Young Persons Act 1933

    • Failure to keep a dangerous dog under control in a public place; Dangerous Dogs Act 1991

  • (ii) Duty owed by a Public Officer

    • Dytham (1979)


When does a legal duty to act arise1

When does a legal duty to act arise?

  • (iii) Duty arising under Contract

    • Pittwood (1902)

  • (iv) Duty of Care Voluntarily Assumed

    • Instan (1893)

    • Gibbons and Proctor (1918)

    • Stone and Dobinson (1977)

      • A controversial decision?


When does a legal duty to act arise2

When does a legal duty to act arise?

  • (v) Duty created by Special Relationship

    Parents

    • Gibbons and Proctor

    • Note: Sheppard (1981) – parental duty ends at 18 years?

      Other blood relations?

    • Stone and Dobinson – Did S’s duty arise because he was F’s brother?


When does a legal duty to act arise3

When does a legal duty to act arise?

Spouses

  • Bonnyman (1942)

  • Smith (1979): A spouse may be released from the duty to act…provided the victim has the capacity to make rational decisions

    Unmarried partners ??

  • People v Beardsley (1967)

    Those who engage in hazardous activities ??

    Those who supply drugs to another ??

  • Khan and Khan (1998)


When does a legal duty to act arise4

When does a legal duty to act arise?

  • (vi) Creation of a Dangerous Situation

    Where D has created a dangerous situation s/he may be guilty via 2 different routes…

  • (1) D becomes under a duty to act and omits to do so

    • Miller (1983) (HL) – the better analysis?

  • (2) D’s conduct can be construed as a ‘continuing act’

    • Fagan v Metropolitan Police Commissioner (1969)

  • See also: DPP v. Santana-Bermudez (2003) (see Herring p.326), where the Administrative Court applied the Miller principle


Distinguishing acts from omissions

Distinguishing acts from omissions

  • In medical cases it is critical to distinguish between acts and omissions

    • E.g. Is the switching off of a life support machine an act or an omission?

    • Airedale NHS Trust v. Bland (1993)

      • Since all hope of B’s recovery had gone, the doctors’ duty to provide life prolonging treatment had disappeared

      • No duty = No liability for omission when feeding and treatment is withheld


Summary

Summary…

  • In order to be criminally liable for omitting / failing to act;

    • (1) The crime must be capable of being committed by omission; and

    • (2) The accused must be in breach of some legal duty to act

  • A legal duty to act can arise in numerous ways e.g. by statute, contract, voluntary assumption, relationship, the creation of a dangerous situation…

  • The distinction between acts and omissions is critical in medical cases


Reading tutorial work

Reading & Tutorial Work

  • Liability for omission

    • Herring pp.80-93 (basic principles)

    • See also p.326 (Santana Bermudez)

  • Causation (for next week’s lecture)

    • Herring pp.93-112

  • Tutorial (w/c 13th October)

    • See pg.5 of the Module Handbook (omissions)


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