Duty to act - Causation - Criminal Law

Duty to act

It is more common (and perhaps more appropriate) to justify liability for an omission by proving that D was under a duty to act. Such duties arise in the five different ways now detailed in this paragraph:

(i) A person who creates a dangerous situation may be under a duty to act to remove the danger:

Miller (1983)

D fell asleep holding a lit cigarette. He was awoken by a small fire and merely moved to a different room without attempting to put out the fire. HL: upheld his conviction for arson.

Evans (2009)

D had bought heroin and gave some to V, her 16-year-old half-sister, who later self-administered the drug. D noticed that V looked as if she had taken an overdose and decided to spend the night with her. D and her mother, D2, did not call for medical assistance, as D feared she would get into trouble. When D woke, V was dead. (p. 27) D (and her mother) were convicted of manslaughter by gross negligence. (D was sentenced to four years’ imprisonment; her mother to two years. They did not appeal their sentences.) CA (five judges, led by Lord Judge CJ): dismissed the appeal. D’s criminal liability, if any, depended on manslaughter by gross negligence. Her involvement in the supply to her sister of the fatal dose of heroin could not found a conviction for manslaughter on the basis of her unlawful and criminal act. The question of whether a duty of care existed was a question of law for the judge, not the jury.

(ii) A duty may arise from a special relationship, such as that of parent/child (which would explain why Evans’ mother did not appeal (see (i), earlier)) or doctor/patient.

(iii) If D voluntarily undertakes a duty, then a failure to undertake that duty may result in liability

Gibbins and Proctor (1918)

V’s father and his mistress starved him to death. Court of Criminal Appeal (CCA): upheld their convictions for murder.

Stone and Dobinson (1977)

Ds, a man and his mistress, made little attempt to seek medical attention for V, his sister, who died whilst a lodger in their care.

CA (Geoffrey Lane LJ): upheld their convictions for manslaughter. The jury were entitled to find that the duty to care had been assumed and, once V became helplessly infirm, they had a duty either to summon help or to care for her themselves.

(iv) If a duty to act is created by statute, then failure to fulfil that duty will result in criminal liability. Thus a positive duty is imposed by the Children and Young Persons Act (CYPA) 1933, s 1, on parents and those who are legally responsible for children to provide food, clothing, medical aid, and lodging for their children, creating the offence of wilful neglect.

(v) A contract with a third party may give rise to a general duty to act.

Pittwood (1902)

Many crimes require a certain consequence to have been caused by the criminal act. Thus, in murder or manslaughter, the act must cause death.

First, factual causation must be established: it must be proved that the death would not have resulted ‘but for’ the accused’s conduct.

White (1990)

D was indicted for the murder of his mother having put cyanide in her drink intending to kill her. Medical evidence showed that she had died of heart failure before drinking the poisoned drink and he was convicted of attempted murder. CA: dismissed his appeal (and upheld his sentence of penal servitude for life). The case is a useful example of ‘but for’ causation: the cyanide did not kill her and so even though he intended to kill her, and she died, he could not be guilty of murder.

Dawson (1985)

Three Ds wearing masks, one carrying a replica gun and another carrying a pickaxe handle, attempted to rob a petrol station. They fled when the attendant, V, pushed an alarm, but V later died of a heart attack. CA (Watson LJ): quashed their convictions for manslaughter. A key element in the decision was the fact that it was not suggested that any of the Ds knew that V had a weak heart. (All three were also convicted of offences of robbery and attempted robbery and their sentences of seven–and-a-half to nine-and-a- half years’ imprisonment were upheld.)

Watson (1989)

Ds burgled the house of a man aged 87, who died of a heart attack 90 minutes later. CA: upheld their conviction for manslaughter. Ds knew of the old man’s frailty, even though they only discovered it once they had broken in.

Bristow (2013)

D was one of a group of at least six men who burgled V’s business, which was situated along a secluded track. V was run over and killed by one of the two vehicles used by the burglars when leaving the burglary.

CA: upheld D’s conviction for manslaughter. This was not a case like Dawson or Watson ‘where the circumstances demonstrating the risk of harm to the occupier of property did not arise until a point during the burglary or at all’ (Treacy LJ at para. 34). Whilst burglary of itself is not a dangerous crime, a particular burglary may be dangerous because of the circumstances surrounding its commission. Features of this case were capable of making this burglary dangerous, when coupled with foresight of the risk of intervention to prevent escape.