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In English law, a person will not be found to be criminally liable merely because he failed to act. 'It is not a crime to cause death or bodily injury, even intentionally, by any omission'.

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Introduction

Sunny Bhanot 16H 28th October 2002. Law Essay - OMISSIONS In English law, a person will not be found to be criminally liable merely because he failed to act. 'It is not a crime to cause death or bodily injury, even intentionally, by any omission'. (Stephen LJ - nineteenth century). The example that Stephen LJ used was where a person sees another man drowning but does nothing to help him, even though, if he had merely reached out his hand, the man who could not swim would have been saved, under English Law the person failing to act has committed no crime. There are limited exceptions to this rule, as where; * statue imposes liability (e.g. Road Traffic Act 1988) * a contract of employment (Pittwood 1902) * a public duty (Dytham 1979) * where there is a special relationship between the parties (Instan 1893, Gibbins and Proctor 1918) * where one party voluntarily accepts liability (Stone and Dobinson 1977) * Or where there is a dangerous situation that the person creating the danger fails to put right (Miller 1983). ...read more.

Middle

(ii) Where there is a special relationship between the parties; a party can be found guilty if he fails to do a duty imposed upon him by a virtue of a special relationship between him and the victim. An early case on this subject was Instan 1893, where a niece failed to obtain help for her, with whom she was living, the aunt contracted gangrene in her leg and died. The niece's conviction for manslaughter was upheld. Another case illustrating this is Gibbins and Proctor 1918, where a man and his common law wife were found guilty of homicide, after failing to feed the man's child, and she later died of starvation. The father had the duty to look after his child, and the woman even though it was not her child was held liable because she lived with the man and accepted his money for food. In Khan 1998, however, it was decided that drug dealers are not under any special duty to look after their clients and as a result a manslaughter conviction was quashed. ...read more.

Conclusion

To impose liability, therefore, the idea of a continuing act was used. The defendant had been told to stop his car and pull into the curb. As he did so he accidentally drove onto the policeman's foot. When he was shouted at to remove the car, the defendant swore at the policeman, told him he could wait and switched of the ignition. He was convicted of assaulting a police constable in the execution of his duty, but later appealed stating that no liability could be incurred by merely failing to act. The Court of Appeal held differently. The judges decided that driving onto the policeman's foot and then keeping the car there was one continuous act, not an act followed by an omission. Fagan's conviction was therefore upheld. I feel that the current principles governing liability for omissions are satisfactory and feel that there are enough exceptions for people not to be allowed to get away with criminal acts by using an omission as their defence. I feel it is satisfactory in the sense that those who are in the situation of seeing for example an assault case are too afraid or weak to intervene and help should not be held liable due to their incapability to physically help. ...read more.

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