Law Scenario: Tom and Harriet Are Walking Along a Costal Path

"If when the defendant becomes aware that the consequences have happened as a result of his own act, he does not try to prevent or reduce the risk of damage by his own efforts or, if necessary, by sending for help, he is under a legal obligation to act, failure to carry out that duty amounts to an offence" this was the held per lord Diplock in R v Miller (1983)1 Generally, in English criminal law there can be no liability for failing to act, unless there is a duty of care to act by the defendant.

Tom and Harriet were friends, and Harriet knew Tom had a fear of heights and by suggesting he stand on the cliff there would be an element of risk in doing so, would this mean she was party to what was happening? If so this would without doubt mean a duty of care to act, would this also mean that there was a duty of care in this alone? And did the duty of care arise only when Harriet refused to pull Tom back?

The defence will establish causation, where prove that the consequence might not have occurred had Harriet acted in performance with her duty, to act where the offence of commission is involved the prosecution must be able to prove the end result would not of occurred but for Harriet's actions. This also makes criminal liability more relentless in the case of those who neglect to act. Did Harriet have the best interests of Tom in mind when not pulling him back? This will need to be established also.

Every legal duty is founded on a moral obligation. Causation is a question of fact, although it does raise issues of law. The basic principle is that act must have caused the proscribed result. This is of course applicable only to result crimes. The 'but - for' test means that the event would not have occurred but for Harriet's actions. R v Dyos2 D was involved in a gang who fought a rival gang. The victim was hit on the head by D and later died. The post-mortem revealed that the victim had sustained two serious head injuries.

Held no conviction of murder as the prosecution could not establish, which injury had been fatal and therefore could not satisfy the but - for test. A defendants act or omission must be more then de minimis. R v. Hennigan3 In R v Malcherek4 Victim was on a life support machine which was subsequently turned off. This did not break the chain of causation as this act was de minimis and D's act was still the operating cause of death. D's act need not be substantial it just must be more than de minimis. D will not be liable when the consequence is not reasonably foreseeable.

R v Roberts5 this test is not subjective. It is what a reasonable man would foresee (objective). There can be cumulative or alternative causes R v Swindall and Osbourne 6 In other words a defendant responsible for creating a dangerous situation, has a duty to prevent a forbidden result in occurring. Miller (1983)7 created the problem by smoking and then committed the omission to act when he went to another room, ignoring the problem. By Tom calling out to Harriet to help and her refusing, did this mean she was ignoring the problem?

Although the failure to act may not be an adequate basis for imposing liability on Harriet, she did nothing to prevent the harm from occurring. If Harriet was aware of what was done and of the risk she created, the Miller principle would apply. Mens rea is the mental state required for a crime. It is as crucial as actus reus and without it there can be no crime. This, subject to the exceptions of strict and very rarely absolute liability. To find the mens rea one must look to the specific definition of a crime, as each crime has its own separate mens rea.

In R v. Moloney8 the facts of the case concerned the shooting of a man by his step son whilst they were involved in a game a quick draw with loaded guns. This area is now governed by the leading cases of R v. Nedrick9 and R v Hancock and Shankland10 This case involved two miners on strike who threw a concrete block of a bridge. This block struck a taxi, killing the driver. R v. Nedrick modified Moloney and laid down two instances where intention can be inferred by the judge.

Hancock and Shankland again modified this slightly and cited the test as being if D foresaw the death as an overwhelming possibility. The Cunningham Test11 requires the conscious taking of a risk. Ask was what Harriet suggested reckless? And did she foresee the damage? If so then the Cunningham test will apply, furthermore this is a subjective test. Harriet must have been aware and conscious of Tom's fear and any reasonable person of sound mind would have automatically pulled Tom back when he alleged he was feeling dizzy.

Caldwell12 is an objective test and does not require any foresight of harm/damage. Actus reus and mens rea must coincide R v. Taffe13 Definition of murder is where a person of sound mind and discretion unlawfully kills a reasonable creature in being and under the Queens peace with intent to kill or cause grievous bodily harm he shall be guilty of murder. This does not relate in any way to Harriet's situation, for murder requires intention as a mens rea which is not present in Harriet's case.