Introduction Omission Introduction Key requirements for criminal liability To ensure the net of criminal responsibility is not spread

d too far, there are certain key restrictions on criminal liability in cases of harm caused by omission. 1. The conduct element of the crime in question must be capable of commission by omission. 2. The circumstances must be such as to create a legal duty to act. 3. The defendant's failure to act must be in breach of that duty. 4. The defendant's failure to act must be voluntary. 5. The harm must be caused by the omission. (causation)

Some crime are incapable to be done by omission o Offences which cannot be committed include unlawful act manslau hter and assault! "owe #1$%3& o F: The appellant's child died from neglect. The trial udge directed the ury that if they found him guilty of the offence of neglect they must also find him guilty of manslaughter on the grounds that neglect !as an unla!ful act. The ury convicted him of both neglect and manslaughter.

o "eld: #ppeal allo!ed. For constructive manslaughter there must be an unla!ful 'act'. The offence could not be committed by an omission.

'eanin of (ct in Statute )o not included omission (hmad*1$+, The court held that the !ords %does acts& in 'viction #ct $()) !ere not satisfied by proof of an omission *n this case, defendant omit in interfere !ith the peace and comfort of a residential occupier of premises (not act to interfere) Spec. #1$%%& # child put her hand on +&s genital organ. + omit to avoid it that a person can commit %an act of gross indecency& by passively submitting to the conduct of the child.

)o included omission

/onclusion from Omission of 0ublic duty 0olice duty *gnore - and let him kicked to death )uty )ytham .onvicted of misconduct public officer !ilfully neglecting to perform a duty !hich he !as bound to perform by common la! or by statute involved that the neglect had to be !ilful and not merely inadvertent and had to be culpable in the sense of being !ithout reasonable e/cuse or ustification

/onclusion from Omission of 1elationship duty 0arents and child )uty 2ibbins and 0roctor + neglect to assist the child !ho starved to die. +uty arise due to relationships. 1 5 6onnyman +1husband, failed to summon help to -1!ife 2hen admitted to hospital, already very !eak and died There is plain duty for husband to help the !ife 1 5 Smith 1$%$ + failed to seek for medical attention for his !ife !ho !as dangerously ill, on his !ife&s insistence 3o liability as the omission !as prompted by a reasonable respect for his !ife&s autonomy *f the !ife lacked capacity to make decisions, it !ould be right for + to override her !ishes 1 5 85an and 2emma +rug given to younger sister. 4ounger sister died due to drug given 5ibling relationship do not form the duty "ewin 5 /0S +, at the end of a car ourney left his friend (!ho !as into/icated) asleep in the car. *t !as summer and the !eather !as hot. "is friend died. .ourt not consider the duty arise bet!een friendship

3usband and 4ife

)uty

3usband and 4ife 4ife refuse treatment

7.)uty

Siblin s

7.)uty

9riendship no duty

7.duty

/onclusion from Omission of :oluntarily 1esponsibility Stay to ether and pro5ide food occupying a room in his house the + had undertaken the duty of trying to !ash her, of taking such food )esultory attempt to help to stran er + did not kno! the -. - take drug in +&s house until he died. + had prepared and ministered to the deceased saline solution to try to reviv )uty Stone and )obinson 5imilar issue, his sister come and stay !ith them

7o duty

1 5 Sinclair; <ohnson and Smith 7ohnson does not demonstrate on his part a voluntary assumption of a legal duty of care rather than a desultory attempt to be of assistance. The facts in relation to 7ohnson !ere not capable of giving rise to a legal duty 1 5 Sinclair; <ohnson and Smith 5ame issue in 5inclair. .ourt compare !ith 7ohnson and hold 5inclair assume the duty to -.

/lose friend and solely ta.e care the whole ni ht "e !as a close friend of the deceased. "e kne! that the deceased !as not an addict. 3e remained with the deceased throu hout the period of his unconsciousness. 9or a lon time he was the only person who was with him. 9riend and try to ta.e care of :

)uty

)uty

deceased !as a friend of his and that he had taken upon himself the duty of trying to revive him after !hat had happened

1 5 1uffell - came to +&s house and self1 in ect drug - in peril + try to revive him 3e/t day, + put - at outside +ie of cold !eather and drug overdose. 5ame reasoning given

/onclusion from Omission of /ontractual duty 9ailed to fulfilled the contractual terms and cause death )uty 0ittwood The defendant !as a level crossing keeper 9ne afternoon he left the gate open and a hay cart !hich !as crossing the rail!ay line !as hit by a train, causing the death of one person and the serious in ury of another. 0 had been paid to .eep the ates shut and protect the public, and in those circumstances there had been gross and criminal negligence. "e !as grossly and criminally negligent as he had been paid to keep the gate shut and protect the public 2ibbins and 0roctor :roctor1female partner to the +, duty arise due to contractual obligation (she took money from +1;ibbin and failed to take care the child. (not from relationship)

=a.e money from someone to do somethin

)uty

<

/onclusion from Omission of counteract a dan erous situation 9ire up )uty and failed to counteract 'iller The defendant fell asleep on a mattress !ithout having e/tinguished his cigarette. "e a!oke to find the mattress on fire. "e ignore it .onduct capable of i5in rise to criminal liability conduct !hich consists of failing to take measures that lie !ithin one&s po!er to counteract a danger that one has oneself created >(ctus reus?; is responsible for any erroneous notion that failure to act cannot i5e rise to criminal liability in 8n lish law 1 5 85an and 2emma 2@@$ +rug given to younger sister. 4ounger sister died due to drug given "o!ever, a person had created or contributed to the creation of a state of affairs that he .new; or ou ht reasonably to ha5e .nown; had become life threatening then, normally, a duty to act by taking reasonable steps to save the other&s life !ould arise 'van realised her sister in peril state but refuse to call ambulance due to she !orried she&ll get into trouble. 'van only put her sister in the bed and hope her sister !ill recover. SantanaA6ermudeB #2@@4& + in ured a !oman police officer by allo!ing her to search him, kno!ing he had hypodermic needles in his pockets !hich stabbed her. + denied having any needles or sharps !hen asked. 2here someone created a danger and thereby e/posed another to a reasonably foreseeable risk of in ury, there !as an evidential basis for the actus reus of an assault occasioning actual bodily harm.

0ro5ide dan erous dru and .now or ou ht to .now and cause death

)uty

Omit to disclosed dan erous situation

)uty

Omit to the continuin act

)uty

9a an 5 '0/ 1$,+ Fagan runs over (car) the officer's foot. The officer requested Fagan move the car, but Fagan refused (omission) and the car !as shut off. 'ventually Fagan started the car and moved off the officer's foot. (t the outset there was an act constitutin a battery; but it was not criminal because there was no element of '1 3owe5er; the action became criminal from the moment that the intention was formed *when he refused to mo5e and shut off the en ine; remain the wheel on the foot These cannot be regarded as mere omission.

/onclusion from Omission of medical cases )octor ot the dutyC )uty 1 5 (rthur 3o special la! in this country that places doctors in a separate category and gives them special protection over the rest of us (irdale 73S =rust 5 6land +octor o!e a duty to give treatment best interest to the patient (irdale 73S =rust 5 6land :5 There is medical evidence to sho! that there !ill no hope recover from the patient. *f no best interest for patient, that mean no duty arises. There is evidence sho! that >land no more hope to recover "is best interest in being kept alive had disappeared. "ence, 3o duty arises mean no omission should incur liability. *f treatment !ill not for best interest to the patient, it !ill against #rticle = There shall be no interference by a public authority !ith the e/ercise of this right e/cept?. for the protection of health or morals? 73S =rust (5 '; 73S =rust 6 5 3 :5- case 3o, it is not against a., of convention right: o 'veryone&s right to life shall be protected by la!.

6est interest to the patient 4hen not best interest to the patient

)uty

7.duty

4ithdraw (73 depri5e life from patientC

1espect patient?s wish to withdraw

7.duty

's 6 5 73S 3ospital 2@@2 *f against the competent patient&s !ill to remove the #3", this may lead to assault or battery (result of forcefully giving treatment)

9orced to remo5e (73 a ainst patient?s will

'urder 1 *"eslie 6ur.e- 5 2eneral 'edical /ouncil #2@@4& *f a doctor !ithdra!s #3", !hich is required to prolong a competent patient&s life, against that patient&s !ishes and !ith the intention of hastening his death, he !ould find no defence in the common la! to a char e of murder 2hat is in a patient&s best interests should not be automatically equated !ith the !ishes of the patient >ut 2here a patient is incompetent; a doctor?s decision as to what is in that patient?s best interests will be determinati5e of the treatment that patient should recei5e.

1espect patient to 'urder 1 5 /oE i5e lethal inDection +r .o/&s patient !as dying. 5he begged +r .o/ to give her a lethal in ection, !hich he did. "e can be convicted murder unless he can proved that he had no intention to kill but his primary purpose is to relieve pain. (d5ance patient 7. duty Sec. 2, 'ental /apacity (ct 2@@5 wishC 1equire compliance with a 5alid ad5ance directi5e to refuse treatment.

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7eonates 3andicapped issue

)uty

1e 6 *a minor- 1$+1 +1 +o!n syndrome baby !ho had intestinal obstruction *t !ould be !rong to condemned to die .ourt !ill decided the operation to be going on even though success operation !ill make the child live for ,@10@ years as a mongoloid (+o!n syndrome patient)

Se5ere handicapped but not dyin

)epend 1e < *a minor- *wardship! medical treatment- 1$$@ 5evere handicapped. >ut not dying and terminal ill "ospital seek for !hether should re1ventilate him !hen he cease to breath again Auote re >: *f the cases of severe proved damage !here the future so uncertain, and the life bound to be full pain and suffering, then court might drive into different conclusion +ue to intolerable to quality of the baby, allo! the declaration. (omission to re1ventilate !ill no incur liability) +ue to intolerable to quality of the baby, allo! the declaration. (omission to re1ventilate !ill no incur liability) The best !ay to interpret this case is focus on the point of the baby condition, there is evidence that every times he undergo re1ventilate process !ill cause further damage to the brain. *f continue the process !ill against #.0 of .onvention Bight: 3o one shall be sub ected to inhuman or degrading treatment. 1e ( */onDoined twins! Sur ical separation- #2@@1& 6roo.e! once seriously handicapped child is born alive entitled to the protection under criminal la! 1e! ( */onDoined twins! Sur ical separation- #2@@1&; 5urgery to separate the t!ins !as an act. The blood supply received by the !eaker t!in !as not medical treatment: the operation to separate them !ould be a positive act. (.on oined T!in, one of the t!in is !eaker and another one is strong)

Kill 3andicapped babies Separation of conDoined twin is an (ct; not omission

"iable

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/onclusion from duty which reasonable foreseeable )eath is foreseeable "ewis 5 /0S The + !as only responsible for the !elfare of his passenger !hilst the car !as in motion. 7o duty due the ris. of death was not reasonably foreseeable. 9urther; court said that 5ictim is not a small child but an adult. 3e is not a doctor who has a medical .nowled e. SantanaA6ermudeB #2@@4& + in ured a !oman police officer by allo!ing her to search him, kno!ing he had hypodermic needles in his pockets !hich stabbed her. + denied having any needles or sharps !hen asked. 4here someone created a dan er and thereby eEposed another to a reasonably foreseeable ris. of in ury, there !as an evidential basis for the actus reus of an assault occasioning actual bodily harm. 1 5 85an and 2emma 2@@$ +rug given to younger sister. 4ounger sister died due to drug given # person had created or contributed to the creation of a state of affairs that he .new; or ou ht reasonably to ha5e .nown; had become life threatenin then, normally, a duty to act by taking reasonable steps to save the other&s life !ould arise 'van realised her sister in peril state but refuse to call ambulance due to she !orried she&ll get into trouble. 'van only put her sister in the bed and hope her sister !ill recover.

)an er is foreseeable

)an erous to be .nown or ou ht to be .nown

$,

4ho to Dud e the standard of dischar e duty o 3e will not be eEpected to put his own life in dan er. o e.g. a shar. swimmin in the sea C he !ould discharge his duty by obtaining proper assistance. o 3onetheless, the lifeguard must dischar e his duty to a reasonable standard. o .ourt !ill consider a reasonable life uard !ould have acted under the particular circumstances. o *t is an %obDecti5e& test. o Therefore even if a defendant thought he !as doing his best, if that %best& !as an %incompetent best& it is unlikely to have been sufficient to discharge his duty. o 8 . Stone and )obinson o Ted 5tone !as <), totally blind, partially deaf had no appreciable sense of smell and !as of low intelli ence. ;!endolyn +obinson aged 60 !ho !as described as ineffectual and inadequate. o 'ven though they are inadequate in nature, but court held that they still liable in gross negligence manslaughter (they assume the responsibility at first, so duty arise, later discharged the duty DomissionE) o #s "ord /olerid e /< said in the case of Instan #1+$3&: 3ot all moral duty comprise legal duty but every legal duty arise from moral duty. # legal common la! duty is enforcing the moral obligation by la! !hich originally !ithout legal enforcement

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/ase where causation of omission failed to be pro5en There is no affirmati5e proof that omission of + may or may not accelerate the death of 1 5 'orby D$==,E

#B (omission not established)

F. !as convicted of the manslaughter of his son, a child of tender years. The child died of confluent small1po/, and the prisoner, though able to do so, did not, o!ing to certain religious vie!s he held, employ any medical practitioner, nor afford to the child during its illness any medical aid or attendance. *t !as proved that proper medical aid and attendance might have saved or prolonged the child's life, and !ould have increased its chance of recovery, but that it might have been of no availG and there !as no positive evidence that the death !as caused or accelerated by the neglect to provide medical aid or attendance:H "eld, by Iord .oleridge, ..7., ;rove, 5tephen, Fathe!, and .ave, 77., that under the above circumstances the conviction could not be sustained. In order to sustain the con5iction affirmati5e proof is required

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