Does anyone know what the six criminal omissions are?

Question

...or even just a couple of them?

Answer 1

Omissions - in Criminal Law

Omissions
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General rule

There is no liability for omissions even if intentionally omitted, and even if it causes death or serious injury unless (Digest to the criminal law (4th ed 1887 Art 212)):

1) statute creates such liability

2) the omission comes from within one of the common law exceptions.

Cause or allow to happen.

The dilemma with omissions in criminal law is whether it can be said that the defendant omitted to do something or just allowed it to happen. The word ‘omit’ in itself seems to suggest a duty to act, but a person who just watches with no duty to act can never be said to be criminally liable.

1) Examples of statutory liability for omissions.

A) failure to report a road traffic accident (s.170 Road Traffic Act (1988)).

B) failure to provide a Police constable with a specimen of breath (s.6 Road Traffic Act (1988)).

C) failure to provide (food, clothing, medical care) for a child in one’s care (s.1(2) Children Young Person’s Act (1933)).

D) A prisoner who after being released temporarily from prison under the terns of the Prison Act 1952 fails to return to custody (see also Prisoners (return to custody) Act 1995).

Words in an Act of Parliament that may create liability.

Shama (1990) 2 ALL ER 602

D was convicted under s17(1)(a) Theft Act (1968) of falsifying a document. The Act stated that the defendant would be liable if he, “destroys, defaces, conceals, or falsifies” a document. He had omitted to complete a form he was required to fill for accountancy reasons. It was held that “obstruct, falsify, and deceive” were all verbs capable of satisfaction by omission.

Firth (1990) 92 Cr App R 217

A doctor was convicted of deceiving a hospital contrary to s.2 Theft Act (1978). He had failed to inform the hospital authorities that some of his patients were private, not NHS.

Gully v Smith (1883) 12 QBD

“Obstructing a highway” was interpreted as possible of criminal liability for omitting to move out the way.

Words in an Act of Parliament that will not create liability.

Price v Cromack (1973) 2 ALL ER 133

“Causing” was held to be a word that would indicate that an omission is not sufficient.

Darch v Weight (1984) 1 WLR 659

“Harbouring” is not a word that indicates liability for omission.

Brown (1970) 1 QB 105

“Assisting the doing” were not words indicating liability for omission.

Yathiwattana (1984) 80 Cr App R 55.

s.1 Protection from Eviction Act (1977) case. The landlord had refused to replace a key to a bedsitting room. It was held that all the jury had to be satisfied with was that the refusal to replace the key was an act calculated to interfere with the occupier’s peace and comfort and was intended to cause him to give up his occupation of the premises.

Cf

Ahmad (1986) 84 Cr App R 64

‘Does act’ to cause, with intent, him to give up his occupation in s.1 Protection from Eviction Act 1977 is not satisfied by omission. It was held that the words must be strictly construed. The defendant landlord had caused disrepair then failed to rectify.


The case may have had a different result had ‘Continuous Act Theory’ been applied.

Speck (1977) 2 ALL ER 859

It was held that a man ‘commits an act of gross indecency’ by totally passively allowing a child to do a gross act to him.

2) Common Law exceptions creating a duty to act.

A common theme exists of the defendant assuming responsibility.

a) Relationships of reliance.

This may occur particularly in the modern world where there is an aging population with elderly relatives.

Instan (1893) 1 QB 450

It was held that there is a duty to act for one’s own blood relatives. D had lived with his Aunt and failed to get medical attention for her when she needed it.

R v Hook (1850) 4 Cox CC 455

The case provided a common law duty of a parent to act.

R v Gibbons & Proctor (1918) 13 Cr App Rep 134

A woman living with a man was guilty of murder for withholding the food from his child, when she had assumed responsibility, and had received money from the man for the food.

Stone and Dobinson (1977) 2 ALL ER 341

The defendants, Stone aged 61, and Dobinson aged 43, were cohabiting. Mr Stone was deaf, nearly blind and had a low IQ. Stones sister Fanny who suffered from Anorexia Nervosa came to live with them. In July Fanny became ill and was confined to the bed. Both defendants were incapable of using the phone and a neighbour was unsuccessful at getting a Doctor to visit. Fanny died in August; the Pathologist had said that she had been in need of urgent medical attention. Both were convicted of manslaughter. Dismissing their appeal Lane Lj held:

“ Whether fanny was a lodger or not she was a blood relative of the appellant; she was occupying a room in his house; Dobinson had undertaken the duty of trying to wash her; of taking such food to her as she required…. They did make efforts to care… The jury was entitled to find a duty had been assumed.”

It is now clear that it is not necessary for there to be a blood tie to the victim. Dobinson was only cohabiting with Stone and had no real ties with the victim Fanny, save to say, Fanny was lodging in the same house.


The law may now impose a duty to act even if the alleged victim was only a lodger where the defendant assumes voluntarily responsibility. Paradoxically, the more uncaring the defendant is the less likely the defendant is to have voluntarily assumed responsibility.


What would the case be if Dobinson had not voluntarily assumed responsibility but had only taken responsibility when Social Services had refused to assist, or other care arrangements had broken down at short notice? Could that be regarded as voluntarily assuming responsibility?


Prof. Hogan cited in Smith (ed), Criminal Law: Essays in Honour of JC Smith, London: Butterworths.

The evidence in Stone hardly supports the inference that Stone or Dobinson were looking after the sister. Hogan ends by asking a searching question- did they really kill the sister?


Smith (1979) Crim LR 251

Mrs Smith was wary of Doctors and had asked her husband not to call them when she fell ill. Mr Smith went along with the request from his wife and she later died. Mr Smith was charged, but acquitted of manslaughter. The trial judge had emphasised that it pinged on whether Mrs Smith was capable of rational decision-making. Had her condition been bad at the time she requested Mr Smith that he were not to call the doctors, he may have been expected to override that request and call for assistance. If on the other hand if she was well, and rational, at the time of requesting that the doctors were not to be called then it would be reasonable to abide by her decision.

cf

Wings v Ellis (1984) 1 ALL ER 1046

The defendant had published a brochure with a misrepresentation in. D did what they could to rectify the brochure and recalled the old ones. However, P read an old brochure and booked a holiday on that basis. D was convicted under s.14 Trade Descriptions Act (1968) of knowingly applying a false trade description. The court held that all that was required was that the defendant knew it to be false; no other fault was required.

On appeal it was held:

a) making a statement know to be false

b) recklessly making a statement that was false.

The court thought there was no room for Miller (below) although Lord Hailsham thought it may have been applicable to (b).


b) Creating a dangerous situation.

Miller (1983) 1 ALL ER 978

Miller was a squatter who had accidentally set fire to a mattress with a cigarette while asleep on the mattress. He woke to discover the fire and instead of putting the fire out or raising the alarm, he simply went to the next room to sleep some more. He was charged with arson contrary to s.1(3) of the Criminal Damage Act (1971).


Miller lacked mens rea while he was asleep so there was no liability for actually lighting the fire as he would have the defence of automatism. His liability was based on omission as when he awoke he did nothing.


Lord Diplock was of the view that those who cause damage unintentionally and become aware of that fact have a duty to limit the damage. Thus this only applies where the defendant is aware of the damage he has caused and intentionally has done nothing to limit the harm/damage caused.


The test is subjective and would depend on the age, experience, knowledge and skills of the defendant.


c) Contract or Office

A contract of employment may create a duty to act. For example, a ‘lollipop lady’ may have a duty to act if she can see a child is going to get run over unless she helps the child cross the road. Similarly a lifeguard may have a duty to attempt to save a non-swimmer struggling in the water.

Pittwood (1902) 19 TLR 37

A gatekeeper had failed to close the gates at a railway level crossing. A train collided with a Hay cart killing a man. The defendant gatekeeper was convicted of manslaughter.


Holding a public office may result in a positive duty to act.


Dutham (1979) 3 ALL ER 641

A on duty Police Officer had witnessed a serious assault on a nightclub goer by a nightclub security guard. The victim later died. The officer was convicted of the common law offence of misconducting himself whilst acting as an officer of justice as he witnessed the offence and wilfully failed to carry out his duty to take steps to keep the Queen’s Peace. He was not charged with manslaughter presumably because the issue of causation may have posed some difficultly.

(see also Nicolson, ‘The citizen’s Duty to assist the Police’ (1992) Crim LR 611).

Brown (1841) Car & M 314

It was held that a Citizen has a duty to assist a constable who calls for assistance to prevent a breach of the peace.

R v Birmingham & Gloucester Rly Co (1842) 3 QB 223

Where a Corporation is required to by an Act of Parliament to carry out works, an indictment lies for failure to comply.


d) Medical Practitioners.

Airedale NHS Trust v Bland (1993) 1 ALL ER 821

Following the Hillsborough football stadium disaster Tony Bland had sustained serious injuries leaving him in a ‘persistent vegetative state (PVS)’ for 3 years. Only a nasogastric tube could feed him. If this was withdrawn he was sure to die within a few days. He had no cognitive, hearing, sight, or capacity to feel pain. It was submitted that by starting to feed him the doctors had assumed responsibility.

The court held that when all hope of a recovery had been abandoned it was not in his best interests to be kept alive. The justification for the non-consensual treatment of the nasogastric fed had disappeared. It was held that the Doctors were therefore no longer under an obligation to provide nourishment.

1) There was no absolute rule that a patient’s life had to be prolonged regardless of the circumstances.

2) The wish of the patient must be considered. Where there is no capacity the best interests of the patient must be considered.

3) If the treatment is futile, or there is no benefit to the patient there is no duty to continue if there was no hope of recovery, and it is not in the patient’s best interests.

4) The courts should be consulted on these matters before making a decision.


Although Doctors must act in accordance with professional guidelines and consult the Family Division of the High Court before withholding such treatment. (see Official Solicitors Practice Note (1994) 2 ALL ER 413).


Re: A (Children) (2000) 4 ALL ER 961

The court was asked to rule on conjoined twins, J and M. J stood a good chance of surviving the operation but it was unlikely M would survive as M had no independent internal organs of her own.


The court held that the doctors would kill M if they were to be separated, but the doctors would escape liability on the ground of necessity of circumstances, or as their actions were justifiable as reasonable force to protect J whose life was in danger.


The court ruled that it was utterly fanciful to classify this treatment as an omission to provide the relevant treatment to prolong M’s life, but was an Act since it involved procedures of operating to discover which organs belonged to which child, and also severing of the aorta- an artery.




Continuous Act Theory

Continuous act theory is best explained by an example.

Fagan v Metropolitan Police Comr (1969) 1 QB 439

The defendant accidentally drove his car onto a Police constables foot, and then realising his mistake intentionally left the car on the constable’s foot. As the defendant remained in the car it was considered that the act was ‘continuous’, it was therefore an act not omission.


It seems bazaar that had the defendant realised his mistake, then got out the car intentionally leaving the car on the constable’s foot he would escape liability.


Reform

Clause 17(b) The Draft Criminal Code

“A person causes a result (if)…he omits to do an act which might prevent its occurrence and which he is under a duty to do according to the law.


Perhaps it is unfair to impose liability for those who assume responsibility, since imposing liability in these circumstances will discourage people from being good Samaritans, and from helping elderly neighbours etc.


Good Luck!!!

Answer 2

1

Answer 3

Criminal Omissions

Answer 4

I found 4 Statutory Omissions for ya (I think):

Misprision of felony was abolished in 1967 but new statutory offences of failure to comply with a duty to disclose terrorist acts or funding under s19(2) Terrorism Act 2000, and failure to disclose knowledge or suspicion of money laundering maintain the tradition. Similarly, the appropriation element in s1 theft may be committed by an act or by keeping when there is a duty to return the property, a deception under s15(4) Theft Act 1968 may be committed by what is not said or done, and "dishonestly secures" under s2(1) Theft Act 1978 may also be committed by omission (see R v Firth (1990) CLR 326 in which the defendant failed to tell the NHS that patients using NHS facilities were in fact private patients thereby obtaining the use of the facilities without payment). One of the more simple examples is the offense of failing to report a road traffic accident.

Hope this helped!

Answer 5

Did you try putting criminal omissions into wikipedia? that should give you some answers!

However, you could also contact your local university and ask for the law library. they may also be able to give you a full list!

Answer 6

This any help?

http://wings.buffalo.edu/law/bclc/bclrarticles/5(1)/Smith.pdf.pdf