Q and A Criminal Law; Norman Baird. Fourth edition first published in Great Britain 2002 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom.

 Question 5 Part (a) In what circumstances does the criminal law impose a duty to assist other individuals? Part (b) Gorge was employed as a lifeguard at a beach. He had just returned from lunch when he noticed that one of the swimmers, Flop, appeared to be distressed and was screaming and shouting. Gorge was about to take steps to rescue her when Flop stopped screaming. She had become too tired. Gorge thought she had stopped screaming as she was no longer in danger. He returned to the life station. Flop drowned. Discuss Gorge’s criminal liability. 29Q & A ON CRIMINAL LAW Would your answer differ if Gorge had returned from lunch in a state of drunkenness and concluded that Flop was screaming with enjoyment?

Answer plan You should discuss: • liability for omissions; • duty to act; • duty of care in negligence; • manslaughter – basic intent and drunkenness. Principal authorities: Miller (1983); Stone and Dobinson (1977); Adomako (1994); DPP v Majewski (1977). Answer Part (a) Criminal law is in general concerned with prohibiting certain forms of behaviour. Offences are normally defined in active terms and not in terms of a failure to do something. Liability for a failure to act will only arise in those rare situations where a legal duty to act is recognised. The law in this area has developed considerably in recent years, but there are still some uncertainties. First, the House of Lords in Miller (1983) held that a person who accidentally creates a potentially harmful situation is under a duty, upon becoming aware of the risk of harm, to take steps to minimise the effects of his act. Lord Diplock said that if a defendant failed to take measures to counteract a danger that he himself has created, then his failure can be regarded as amounting to the commission of the actus reus of an appropriate offence. One is under a duty (Lord Diplock preferred the word ‘responsibility’) to take steps that lie within one’s power to rectify the danger created. A person who neglects to discharge the duty is guilty of an offence, provided the failure to act was accompanied by the appropriate mens rea. 

The case concerned criminal damage but it is clear that Lord Diplock intended the principle to apply to all result crimes and in Lawford (1994), the Supreme Court of South Australia held that if a defendant was responsible for a person being rendered unconscious and, as a consequence, placed in a dangerous situation a duty to take positive steps to render assistance would arise and the defendant would be guilty of murder by omission if the mens rea elements of the offence were proved.1 Secondly, duties may be imposed on individuals as a result of their relationship with the victim. The Children and Young Persons Act 1933, for example, imposes duties on parents. By virtue of s 1, it is an offence for a parent to wilfully neglect a child in a manner likely to cause unnecessary suffering or injury to health. This offence carries a maximum sentence of 10 years’ imprisonment (s 45 of the Criminal Justice Act 1988). In addition to this statutory duty, the common law recognises a parental duty to act which may give rise to liability for an offence against the person. Thus, for example, although there is no general duty to take steps to save the life of another, a parent would be under a duty to take reasonable steps to save the life of his or her child. A failure to discharge such a duty may result in liability for either murder or manslaughter, depending on the defendant’s mens rea. Gibbons and Proctor (1918) provides a rare case of murder by omission. The defendants killed the child of the father by withholding food. As the parties failure to look after the child was accompanied by ‘malice aforethought’, they were guilty of murder. Most commonly, in cases of ‘neglect’ of this sort, it will be difficult to prove an intent adequate for murder and the person will normally be guilty of manslaughter ‘by gross negligence’.2 It is not clear to what other familial relationships, the common law duty extends. It is not clear, for example, whether a duty is owed by one spouse to another or whether an adult child owes a duty to his or her parent. There are a couple of 19th century decisions which denied the existence of a duty towards adult sons and daughters (Smith (1826); Shepherd (1862)) suggesting that the parental duty is terminated when the child becomes ‘independent’. In addition to familial relationships it has been held that a duty may be imposed on one who has voluntarily undertaken the  

care of another. In Stone and Dobinson (1977), Stone’s sister, Fanny, whilst living with the defendants, had become unable to care for herself. She became extremely ill and died. It was held, as a matter of fact, that the defendants had undertaken to care for her. Such an undertaking gave rise to a legal duty to care for her. As they had committed a ‘reckless’ breach of that duty – by failing to get medical assistance – they were both guilty of manslaughter.3 In Pittwood (1902), it was held that a duty may arise from contract. In that case a railway gatekeeper failed to comply with his contractual duty to close a gate at a level crossing. As a consequence, a person crossing the tracks was killed. Wright J held that the defendant could not rely on the doctrine of privity of contract to deny the existence of a duty to users of the crossing. The obligation arose from the fact that others were dependent on the proper performance of the contract. Likewise, a duty may arise by virtue of the ‘office’ that a person holds (see Curtis (1885); and West London Coroner ex p Gray (1987)). It is not clear what other situations or relationships might give rise to a legally recognised duty to provide assistance.4 In Adomako (1994), an anaesthetist failed to respond appropriately to obvious signs that his patient had ceased to breathe as a tube supplying him with oxygen had become disconnected. The appellant was convicted of manslaughter by gross negligence. His appeal to the House of Lords was unsuccessful. However, although Lord Mackay, in a speech with which the other Lords agreed, regarded Adomako’s liability as stemming from a series of omissions, his Lordship made no reference to the legal basis of the duty to act.5 In Khan (1998), the Court of Appeal held that whether a duty to act exists is a matter of law and the judge should make a ruling as to whether the facts were capable of giving rise to a duty to act. The appellant had sold heroin to a 15 year old girl (V). V was a first time user. She snorted an amount of heroin that was twice the quantity an experienced user might take. V went into a coma whilst still at the appellant’s flat. He left the flat and returned the following day to discover her dead. The appeal against conviction for manslaughter was allowed as the trial judge had failed to direct the jury as to whether the facts were capable of giving rise to a duty to summon assistance.6 32.

Part (b) Provided that Flop’s life could have been saved had Gorge taken reasonable steps to rescue her, then her death may be attributed to Gorge’s failure to act. As explained above, a duty to act may arise from a contractual obligation (Pittwood). Whether he is guilty of an offence of unlawful homicide depends on his mens rea at the relevant time. There is no suggestion that he had the mens rea for murder but he may be guilty of manslaughter. In Adomako (1994), the House of Lords held that, in cases of manslaughter by gross negligence involving a breach of duty, the ordinary principles of the law of negligence apply. Where the death of the victim is attributable to a breach of duty to take care, it is for the jury to determine whether the breach was such serious departure from the proper standard of care as to amount to gross negligence and, therefore, to give rise to criminal liability. Thus, in this case, the central question for the jury is whether, having regard to the risk of death from his failure to go to Flop’s aid, Gorge’s conduct was, in all the circumstances, so bad as to amount in their judgment to a criminal omission. Alternative facts Provided Gorge’s failure to act was the imputable cause of Flop’s death, he is guilty of manslaughter. A person charged with an offence of basic intent, like manslaughter, cannot rely on voluntary intoxication as a defence if their acts were causative of the death of the victim (DPP v Majewski (1977); Lipman (1970); Caldwell (1982)). Notes 1 In DPP v K (1990), the defendant, a schoolboy, had created a dangerous situation by concealing acid in a face dryer. As he had failed, recklessly, to take steps to rectify that situation, he was guilty of assault occasioning actual bodily harm when a fellow pupil was scarred after turning on the drier. 2 In Russell and Russell (1987), the Court of Appeal held that both parents have a duty to intervene to prevent the ill treatment of their child.

3 Stone was the deceased’s brother, but it is not clear from the judgment whether the family relationship alone would have given rise to a duty to act. In Sogunro (1997), the defendant was convicted of manslaughter by gross neglect (sic) for failing to provide for his fiancée. She died of starvation after he kept her without food and drink. 4 The recognition of a duty to act for the helpless and infirm arose from the Poor Law obligations and were initially based exclusively on status. The courts imposed a legal duty on those who occupied certain defined positions. Responsibility was based on the dependent relationship (economic or physical) between the parties. 5 The decision in Adomako is primarily concerned with the nature of gross negligence and the duty of care. This is a separate issue from the question of whether there is a legal duty to act. In criminal law terms, the issue whether there is a duty to act relates to the actus reus of the offence in question, whereas a duty of care is a component of the fault requirement of manslaughter by gross negligence. Presumably, the duty to act arose out of the fact that the victim was dependent upon Adomako performing his contractual obligations to the health authority. 6 The Court of Appeal acknowledged that to impose a duty to summon medical assistance on a supplier of heroin to a user suffering an overdose would have the effect of enlarging the class of persons to whom a duty could be owed, but they expressed no opinion on the merits of so doing.

Question 6 Part (a) Julian and Dick decided to have a picnic in Farmer Giles’ field. Julian decided to build a fire next to a haystack. When Dick asked him whether it would be safe, Julian explained that the wind was blowing from a direction that would keep the flames away from the haystack. Julian made the fire and began to prepare the food. After a few minutes, the wind changed direction, blowing the flames towards the haystack. Part of the haystack started to  

smoulder. Dick suggested that they should pour the contents of their bottle of wine to douse the fire. Julian disagreed and told Dick to help him quickly pick up their belongings and move to a neighbouring field. This they did. The haystack was destroyed. Part (b) Anne was taking a walk by a lake. She noticed a young boy in the lake. He was having difficulty swimming and called for help. Anne swam out to him and dragged him back to the edge of the lake. His breathing had stopped. Anne did not give mouth to mouth resuscitation as she was afraid of catching disease. She ran to a nearby public telephone and called an ambulance. When the ambulance arrived, the boy was already dead. Discuss the criminal liability of the parties. Answer plan A relatively straightforward question in which both parts relate to the question of liability for omissions. The first part raises the issue in the context of criminal damage where D fails to take steps to counteract a dangerous situation for which he was ‘responsible’. The problem can be seen as one relating to the issue of coincidence of actus reus and mens rea. The second part concerns liability for omissions in the context of unlawful homicide. The principal issues are: • the rule in Miller (1983); • the meaning and application of ‘recklessness’ for the purposes of offence of criminal damage; • the voluntary assumption of a duty to act for the benefit of another. Answer Part (a) Julian may be liable for the offence of criminal damage contrary to s 1(1) of the Criminal Damage Act 1971. This provides that a  

person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence. By virtue of s 1(3), where, as in this case, the unlawful destruction or damage of property is by fire the offence is charged as arson. By s 4, arson is punishable with a term of imprisonment for life. Julian was probably not guilty of the offence when the haystack first caught fire. Although he committed the actus reus of criminal damage, he was not reckless at that stage of the proceedings. A person is reckless in this context if his conduct: (1) created a (serious) risk of causing damage to the property of another; and (2) he either: (a) gave no thought to possibility of there being any such risk where the risk was in fact obvious; or (b) he recognised that there was some risk of damage, but nevertheless went on to take it (Caldwell (1982)). A risk is serious if a reasonable person would not have treated it as negligible (Reid (1992)). The obviousness of a risk relates to whether the reasonable prudent person would have been aware of the risk irrespective of whether D was or could have been aware of the risk (see Elliott v C (1983); Stephen Malcolm R (1984)). Julian thought the construction of the fire near the haystack was safe. He did not consider there to be a risk of damage. Nor had he failed to give any thought to the question of whether there was a risk. He had considered the possibility of there being a risk and discounted it. His state of mind falls within what is known as the Caldwell loophole. However, he may be guilty of arson for his later failure to take steps to extinguish the fire that he had caused. In Miller (1983), the House of Lords pointed out that the actus reus of criminal damage may continue over some considerable period of time. If D does an act which he believes initially to be harmless, but he later becomes aware that that act has set in train events that present an obvious risk that property belonging to another will be damaged, then he is under a duty to try to prevent or reduce the damage by taking such steps as are reasonable and without danger or difficulty to himself.

The defendant’s state of mind throughout the entire period from immediately before the property caught fire to the completion of the damage is relevant to the issue of liability. Julian could have used the wine to extinguish the fire and, therefore, as he failed to take what, it is submitted, would amount to reasonable action to prevent further damage, he is guilty of arson. Dick has committed no offence. He is clearly not liable as a principal offender nor can he be regarded as an accomplice to the offence perpetrated by Julian. Although he assisted Julian to remove their belongings and to get away from the scene, Dick neither assisted nor encouraged Julian to commit criminal damage. Part (b) Anne’s liability for unlawful homicide will depend first upon showing that her failure to provide resuscitation was a factual cause or sine qua non of the boy’s death. If medical evidence reveals that he was already dead when she pulled him on to the bank or if, for some other reason, attempted resuscitation would have been pointless, then the death will not be attributable to Anne’s inaction (see, for example, White (1910)). If her failure was a sine qua non of the boy’s death, it must also be shown that it was a legal cause of his death. In English law, there is generally no liability for omissions. Thus, it is often said that D incurs no criminal liability if he stands and watches a stranger drown even where he could have acted to save the stranger without risk to himself. The death of the stranger in these circumstances is not regarded in law as a consequence of D’s inaction. A failure to act which, as a matter of fact, causes the death of another will give rise to liability only where the defendant was under a duty to act. In Stone and Dobinson (1977), the Court of Appeal held that where one undertakes a duty to care for another incapable of looking after themselves, then a failure to discharge this duty may result in criminal liability. The Court of Appeal agreed with the trial judge that the proper approach is to leave the question of whether there has been a voluntary assumption of a duty to the jury. 37.

The evidence in that case showed that the deceased, Fanny, had lodged with Stone and Dobinson for three years, that the defendants had looked after her for many weeks and had been aware of her deteriorating condition for a similar period during which they had taken ineffectual steps to help her. In Anne’s case, although the period of involvement was much shorter, it is submitted that there is sufficient evidence of an assumption of duty to warrant consideration by the jury. The boy’s welfare was dependent on the continued provision of care by Anne. Even the duty to act, is however, not an absolute duty. A conviction for manslaughter will not follow unless the prosecution prove that her failure to discharge the duty was ‘grossly negligent’. In Adomako (1994), the House of Lords held that whether or not the defendant’s conduct was grossly negligent is a question to be decided by the jury. Lord Mackay explained that where the death of the victim resulted from a breach of duty by the defendant, the jury should consider whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission. Consequently, whether or not Anne’s conduct and, in particular, her decision to call the ambulance service negatives ‘gross negligence’ is a question of fact for the jury.1 Thus, the crucial questions in this problem are whether Anne was under a duty to provide assistance, and, if so, whether she failed to discharge that duty in a manner which was grossly negligent. Provided the jury reach affirmative conclusions with respect to both of these issues, Anne may be convicted of manslaughter – an offence which, by virtue of s 5 of the Offences Against the Person Act 1861, carries a maximum penalty of life imprisonment. Note 1 In Stone and Dobinson, it was said that the appellants could have discharged their duty by summoning outside help. 38