Another exception is where there is a contractual duty to act, there may be a specific duty to act laid down in a persons contract. For example, a lifeguard is employed to save lives, so he would obviously be failing in his duty if he observed someone in trouble and did nothing about it. The same thing happened in Pitwood (1902) where the defendant was employed to be a gatekeeper and had to guard the level crossing to shut the gate when trains were approaching. He opened the gate to let a car through and forgot that it was open and went to lunch. As a result a hay cart crossed the track as a train was drawing near and the driver died. The gatekeeper was convicted of manslaughter, as he was found guilty of “gross and criminal negligence”. Diana Roe quotes that the judge stated, “A man might incur criminal liability from a duty arising out of contract”. This also backs up the decision made in Adamako (1994), where an anaesthetists conviction for gross negligence manslaughter was upheld in the House of Lords after he failed to notice that during an operation a breathing tube had been disconnected, leading to the death of a patient. Expert evidence given at the trial showed that a competent practitioner would have spotted the problem in a matter of seconds.
Misconduct whilst acting, as an officer of justice is also a common law offence. In Dytham (1979) a police officer was held criminally liable for failing to keep the peace after he stood and watched a man being kicked to death.
A defendant can be found guilty for failing to act if there is a duty imposed upon him by virtue of special relationship between him and the victim. For example, Gibbins v Proctor (1918) where a father and his common law wife were found guilty of murder after they starved his seven-year-old daughter to death. However, in Khan (1998) it was decided that drug dealers are not under any special duty to look after their clients so a manslaughter conviction was quashed.
A duty to act may also be imposed where someone voluntarily accepts responsibility to care for another. In Stone v Dobinson (1977) the sister of an elderly man came to stay with him and his woman friend. The man’s sight, hearing and sense of smell were all deficient and the woman was of low intelligence. Fanny, the sister was obsessed with putting on weight and refused to eat until she became bed bound. She developed serious bedsores that became very badly infected. The couple made half-hearted attempts to get help for her but failed to obtain the proper medical help and Fanny died. The CA held they had a duty of care for the sister, they knew that she was relying on them and they had failed to get her the assistance that she needed.
One can also be found liable if they create a dangerous situation like in Miller (1983), where the “failure to perform a duty” theory was used. Lord Diplock preferred to refer to it as the responsibility theory as it was easier to explain to the jury. Today the responsibility theory is the preferred approach but the continuing act theory may be preferable given the right circumstances.
However, not all omissions can lead to criminal liability, in the case of Airedale National NHS Trust v Bland (1993) HL upheld a declaration granted by the HC stating that the turning off the life support machine used to sustain a victim of the Hillsborough football tragedy would not lead to civil or criminal liability. Lord Goff in his judgement stated that ending a person’s life by giving them a lethal injection is an act but not continuing a persons life by turning off the life support machine is an omission.
Some legal writes like Professor Glanville Williams favour a restrictive approach to imposing liability for omissions. Other academics, including Professor Ashworth, take the opposite view and state that the proposed reforms do not go far enough as wider policy issues are involved. Others who also agree with this view are dissatisfied with the current state of English law, which normally absolves a party from blame when he fails to help, even in extreme situations, such as where he’s standing watching while a small child is drowning in a shallow pool of water. They would argue there has been an unwelcome increase in the principle of non-involvement in the affairs of strangers, even when it is blatantly obvious that help is urgently needed. Education in good citizenship might be an alternative approach to creating further criminal offences.
The latest recommendations are in a Law Commission Report in 1993, which ignores the proposals from 1989 and instead followed the proposals of the reforms suggested in 1980. Clause 19 of the bill states that someone can be liable for omissions in the range of situations already laid down by judges, but confines liability to serious offences, such as international serious injury, torture, kidnapping, unlawful detention, abduction and aggravated abduction.
The Draft Criminal Law Bill, therefore, would not provide for more general liability for omissions. It does, however, recognise the “miller principle” in clause 23. This clause states that a person will commit an offence where he fails to act, which may not at that stage be unlawful, but then fails tot take reasonable steps to deal with the results of that act.
Bibliography:
Criminal Law – Elliot and Quinn (4th Edition)
Criminal Law – Diana Roe (2nd Edition)
Criminal Law – Storey and Lidbury (2nd Edition)
