However Adomako could also fall under the category of duty of care under a professional duty to act so his level of duty should be greater than Pitwood.
Another reason this can be seen as not satisfactory is that they are just doing there jobs and if their duty puts them selves at risk it should not be seen as necessary for them to act, But as they are getting paid to do a job they should be trusted to fulfil their duty and therefore be liable for their mistakes.
The second category of omission is duty of care under a professional duty to act. This is when the defendant is guilty of wilfully and without reasonable excuse neglecting to perform his duty. A case to outline this category of omission is R v Dytham 1979, A police officer from St.Helens, witnessed the death of a night clubber out side Cindy’s nightclub but took no action to help because had he reported it then Dytham would have had to stay beyond the end of his shift.
This duty should exist as the police officer would have been in a position of public trust and the police officer would have received adequate training in order to deal with such a situation. However if the defendant is put at risk by performing his/her duty it should not be deemed reasonable that they would continue to carry out their duty of care due to the nature of their occupation.
The Third category of omission is Duty under a Statute; sometimes a statute imposes a legal obligation on a person to act in a certain situation. If they fail to act in such a case, they may be liable for a crime. Many of these involve vehicles or driving under the Road Traffic Act 1988. Some statutes have been created due to prior difficulty to convict when necessary, for example the Domestic Crimes and Victims Act 2004. An example of a case this was created for is R v Mujuru 2007; this is when Mujuru had gone to work leaving her four month old daughter alone with her live-in partner (Stephens) despite knowing he was violent towards her daughter before. (He had previously broken the daughters arm) The Partner killed the baby by slamming her head onto a hard surface. By going to work she had failed to take adequate steps to protect her daughter. Another example of this is Greener v DPP 1996 where a bull terrier belonging to the defendant broke free from its chain and entered a neighbouring garden where it bit a young child. D was convicted of allowing his dog to enter a place where it was not permitted to be, causing injury, contrary to s.3 of the Dangerous Dogs Act 1991. A third example of this is R v Lowe 1973, The D a man of low intelligence, was alleged to have neglected his baby daughter by failing to summon medical assistance when she became ill. The child died some 10 days later of dehydration and gross emaciation. The woman with whom D had been living had four other children and was of subnormal intelligence. D stated that he had told her to take the child to the doctor, but she had not done so because she was afraid that the child would be taken into care.
The defendant was charged with manslaughter and wilful neglect contrary to s.1 (1) of the Children and Young Persons Act, 1933.
Many statutory offences that can be completed by omission are also strict liability (no Mens Rea) for example the Road Traffic Act 1988 states that the refusal to take a breath test is a criminally liable offence.
Duty under a statute can be seen as harsh on the defendant as it means they can be easily prosecuted. However this category of omission closes a loophole in the law and therefore allows for more moral prosecution. It also protects the most vulnerable.
The fourth category of omission is Duty owed because of a special relationship. English law clearly imposes on parents/ guardians a legal duty to safeguard both the health and the welfare of their children; failure to do this can often result in criminal liability for the parent or guardian. An example of this is R v Gibbins & Proctor 1918 this is when D and his common law wife failed to feed the man's 7 year-old child, Nelly, and she died from starvation. The woman hated Nelly, and was clearly the moving force. This showed that murder can be committed by omission. Another example of this R v Harris and Harris 1993 the parents of a girl refused to allow doctors to treat her diabetes with insulin. This is because parents have a duty to take proper care of their children, and if they fail to do so they can be criminally liable for the consequences.
The category of duty owed because of a special relationship is the most clear of the duties as it satisfies conviction on both legal and moral grounds and similar to duty under a statutory offence it protects the most vulnerable who trust to be looked after. Some may argue that the category could be expanded to a wider amount of people such as grandparents who may live with a family or even aunties, uncles or cousins.
The fifth category of omission is Duty assumed for another or voluntary acceptance of responsibility for another. This is when the defendant is under a duty you care for another or assumes a duty of care, failure to discharge that duty may lead to liability. An example of this is R v Stone & Dobinson Ted Stone was 67, totally blind, partially deaf had no appreciable sense of smell and was of low intelligence. He lived with his housekeeper and mistress of 8 years, Gwendolyn Dobinson aged 43 who was described as ineffectual and inadequate. Ted's sister Fanny came to live with them. She had previously lived with another sister but had fallen out with her. She had mental problems and was suffering from anorexia nervosa. Ted and Gwendolyn took her in and agreed to look after her. However, Fanny's condition deteriorated and she was found dead in her bed in appalling conditions. A case similar to this is R v Instan 1983, The D lived with her aunt, who was suddenly taken ill with gangrene in her leg and became unable either to feed herself or to call for help. D did not give her any food, nor did she call for medical help, even though she remained in the house and continued to eat her aunt's food. The aunt's dead body was found in the house decomposing for about a week.
Stone and Dobinson were found liable for her death as they had assumed a responsibility to her by taking her in. They failed to look after her and ensure she got the medical help she needed.
This category is justified as it promotes higher standards of care for the vulnerable. However this category could mean that acts of kindness could bring them legal duty which people may not be aware is criminally liable. This law also imposes on people who may not be competent or may be ‘inadequate’.
The Final Category of omission where a duty of care is owed is a duty to limit harm caused or a duty in a dangerous situation. When a defendant causes a dangerous situation to exist they may be liable for failing to take adequate steps to limit any harm their actions may have caused. One example of this is R v Miller 1983. The defendant had been out drinking for the evening. He went back to the house he had been staying in and fell asleep on a mattress with a lighted cigarette in his hand. He awoke and saw that the cigarette had started a small fire. Upon seeing the fire, he then got up and went to another room and went back to sleep. The defendant had created a dangerous situation and owed a duty to call the fire brigade upon becoming aware of the fire. He was therefore liable for his omission to do so.
This category is satisfactory as the courts do not expect any defendant to put themselves at risk they just expect them to call the fire brigade or inform someone of the danger. This can be closely linked with the previously mentioned ‘good Samaritan’ law as their duty of care is extinguished if they inform the fire brigade of the harm.
There are some potential avenues for reform that could be considered by the Law Commission. One of these is that the law can be expanded to involve more duty situations. The case of R v Khan & Khan 1998 was when The two appellants sold heroin to a 15 year old girl at their flat. This was the first time she had used heroin and she used twice the amount generally used by an experienced user. She took the heroin in the presence of the appellants. She fell into a coma and the appellants left the flat leaving the girl alone when it was clear that she required medical assistance. After viewing this case the Court of Appeal had to quash convictions due to the judge misdirecting the jury in the crown court however they stated that the law was capable to cover more categories.
If the Law was expanded it would mean that less people would escape liability. It would also develop the law and demonstrate a move to a more moralistic society. However it could lead to inconsistency in the law and uncertainty in the law.
In Conclusion the UK legal system could also introduce a Good Samaritan law whereby strangers owe a duty of care and makes it an offence to not act in some situations. This could be argued against as it could put more people at risk that need not be at risk; On the other hand it may save many lives e.g. a ‘drowning child’.