An obligation to act often results from a law or a contractual relationship. Examples: A person who creates a dangerous situation may be required to take reasonable steps to avoid that danger. In R v. Miller (1983) 2 AC 161, the defendant was sleeping on the street in a building. He fell asleep on his mattress while smoking a cigarette. When he woke up, he found that the mattress was smouldering, but instead of calling for help, he simply moved to another room. This allowed the fire to spread. He was convicted under the Criminal Damages Act 1971 for recklessly causing harm by omission. Lord Diplock said: Going back to drowning, the accused would be responsible if the victim was a child in a pool with a water depth of six inches, or if there was a swimming device nearby that could easily be thrown at the victim, or if the accused carried a mobile phone that could be used to call for help. However, the law will never punish anyone for not jumping into a raging jet of water, that is, the law does not require the potential saver to be at risk of drowning, although the person may be a paid lifeguard to patrol the given beach, river or pool.
Regardless of the terms and conditions of employment, an employee can never be required to do more than is reasonably appropriate in all circumstances. In R v Dytham (1979) QB 722, a police officer on duty stood up and watched a man being beaten to death in front of a nightclub. He then left without calling for help or an ambulance. He was convicted of the common law offence of intentional misconduct in the exercise of public office. Widgery CJ said: A duty to act is a legal obligation that requires a party to take the necessary steps to avoid harming another person or the public. In personal injury law, a person may be held to a standard of due diligence to avoid injury or damage. In criminal law, in common law, there is no general duty of care to fellow citizens. The traditional view was summed up in the example of how one person drowned in shallow water and made no rescue effort, where commentators took the line: « You won`t kill, but you don`t need to officially strive to keep another alive. » (Arthur Hugh Clough (1819-1861)) in support of the argument that inaction does not entail criminal responsibility. Nevertheless, such omissions could be morally unjustifiable, so that both the legislature and the courts have imposed liability if the inaction is sufficiently culpable to justify the incrimination.
Some laws therefore expressly state that actus reus consists of a relevant « act or omission », or use a word that may contain both. Therefore, the word « cause » can be both positive in the sense that the defendant proactively and negatively injured the victim, since the defendant intentionally failed to act, knowing that such omission would cause the harm in question. In the courts, the tendency was to use objective tests to determine whether, in circumstances where there was no risk to the health or well-being of the defendant, the defendant should have taken steps to prevent a particular victim or a victim from a category of potential victims from suffering foreseeable harm. [1] An omission is a failure to act, which generally has different legal consequences from positive behaviour. In criminal law, an omission constitutes actus reus and gives rise to liability only if the law imposes an obligation to act and the defendant violates that obligation. Also in tort law, liability for omission is imposed only on an exceptional basis if it can be established that the defendant was obliged to act. One can also be held liable not for the commission or omission of an act, but for a prohibited situation (also called a « condition »). Examples include possession of a prohibited substance or material, or drunkenness in public. « Superficially » because it seems unfair to punish someone who has not done or has not done something voluntarily. [19] How is a situational crime acceptable? On closer inspection, it seems that they do not punish forbidden situations alone. Instead, they seem to punish a defendant for an act/omission that led to the prohibited situation, or for an omission aimed at ending such a situation. Thus, the defendant is not punished for the situation itself, but for an act/omission that created the situation, or for an omission aimed at putting an end to a prohibited situation – both, if voluntary, are compatible with general principles.
One case in which the defendant was punished for failing to put an end to the prohibited circumstance is that of S v. Brick. [20] In this case, the respondent had received unsolicited pornographic material in the mail (the possession of which was illegal at the time). About 24 hours later, he had not thrown away the equipment or reported the case to the police. He was found guilty of possession of prohibited material for failing to bring the situation to a speedy end. One case in which the issue of past conduct arose was R v. van Achterdam,[21] in which the defendant was discovered intoxicated while staggering in the plaintiff`s garden. The complainant was a police officer who dragged him down the street (a public place) where he arrested the accused because he was drunk in a public place. The court quashed the conviction on the grounds that it was not the defendant`s act that brought him into the prohibited situation. This case shows that the prohibited circumstance is not sufficient to lead to a conviction, but that a wilful act/omission on the part of the defendant is necessary.
Therefore, our law ultimately and subject to all other liability requirements (including volunteerism, illegality, ability to pay and fault) punishes positive behavior and omissions in the face of the legal obligation to act. It also superficially punishes situations – although these situations must have resulted from positive action or the inability to put an end to the prohibited situation. In attorney general`s dismissal (No. 3 of 2003) (2004) EWCA Crim 868[2], police officers arrested a man with a head injury for breach of the peace for his abusive and aggressive behaviour towards hospital staff trying to treat him. Later, he stopped breathing at the police station and all attempts at resuscitation failed. Five police officers involved in A`s care at the time of his death were charged with negligent homicide and misconduct in the line of public office.