Another time when there is a duty created for one to act is a 'duty to avert danger created', the law will impose a duty on a defendant to act to avert danger that he has created, even if it was an innocent mistake the law will require the defendant to avert this danger, a hypothetical example could be such as a defendant dropping a banana skin on the path by accident, but then is in a rush and leaves it there, and then the victim who is partially blind walks over it and slips and causes themselves personal injury, the defendant would be criminally responsible for failing to act.
A case to illustrate this further is Miller 19839, where the defendant who had snuck into a building, the defendant in the bedroom lit a cigarette which as he lit, fell asleep he dropped the burning cigarette onto the mattress. he awoke and realised his mattress was on fire, but the defendant took no action to avert the danger and simply went into the next room, the fire spread and caused damage to parts of the property the defendant was convicted of arson, under the Criminal Damage Act 1971.
10 When analysing the case in the book, criminal law directions, the author makes a point that how could some one like Miller avert the danger in this case? , the answer simply is 'clearly the defendant is not expected to extinguish a dangerous fire' however they ' should at least call a fire brigade'11 The Miller principle was also applied more recently in the case of Evans 2009 by the court of appeal.
An everyday scenario for police officers, who have to search suspected criminals, is the risk of contaminated needles they may have in their pockets, police will usually ask the suspect under arrest and if they fail to disclose then this will be an omission as the police officer can potentially harm themselves by pricking their finger with a needle. As was the case in DPP v Santana Bermudez 2003. A person will also have a duty to act if they have a contractual duty; this is most likely to happen as part of an employment contract, where the defendant failing to do something in their contract could pose a risk to the public.
There are many examples of contractual duty, most popular being lifeguard. The leading case for this type of omission is Pittwood 190212, the defendant was a gatekeeper at a railway level crossing, which meant he had to close the barriers when a train was approaching and open them once it was safe, he had to do this certain times of the day. However Pitwood whilst at lunch one day left the gates open and a passing train hit a cart driver who was killed, Pitwood was guilty of gross negligence manslaughter due to his omission to shut the gates.
Similarly as Pitwood had a contractual duty, there is also a duty for people who serve the public such as police officers. In Dytham13 the defendant was an on duty police officer who saw a man being ejected out of a nightclub and being beaten to death by the bouncer, however the officer did not stop and drove away, and was only fined for misconduct. Academic Professor Hogan believes that defendants like Dytham should not be prosecuted.
Public officers who neglect without reasonable cause to perform the obligations of their offices may be convicted of an offence but the offence lies in the neglect and the office holder does not become a party to the harm he might have prevented'14. However other academics may disagree with Professor Hogan and may believe in the case of Dytham the police officer should be charged of manslaughter for his omission. Such as Professor Ashworth who believed in the social responsibility view15.
The final exception in which one will have a duty to act is a statutory duty, a classic example in the book criminal directions16, which illustrates the point is if you collide into another vehicle, you would be under a legal obligation to provide name, address and registration with the other driver, however if you fail to do so and also fail to report the collision to the police then this failure (omission) will render you guilty of a criminal offence under the Road Traffic Act 198817 Statutory duty means Parliament in the form of a Act require you to do something and failing to do this will render an offence such as the above example of the Road Traffic Act. It is clear that some academics are happy with the current law whilst others would be in the favour of the systems placed such as in France where there should be a duty of an easy rescue, Academics such as Professor Williams prefer the conventional view as it currently stands, however Professor Ashworth advocates the 'social responsibility view' and is in favour of an easy rescue.
Professor Williams who prefers the conventional view18 believes 'it is not always easy to see the difference between an act and an omission. Does one fail to stop at a red-light or does one drive through a red light'19 So when you analyse their debates, the social responsibility view and conventional view appears to be the biggest issue such as should A be under a duty to save B (like in some countries20)' or should it be the conventional view which Williams favours and not save B. Ashworth also believes that the whole society will benefit from a duty of easy rescue. 21, he also believes that liability should be limited to those who had a greater opportunity to save B.
Professor Williams however believes this will not work, as what will happen if 50 people watch B drown, will all of these people be liable? Sending 50 people into court would be a huge logistical issue and would certainly clog up the courts system. In 1980 there was an effort to reform the law on omissions by the Criminal Law Revision Committee who wanted to iron out the controversial issues and make the law more simpler and straightforward by only imposing omissions for murder, manslaughter, causing serious injury (gbh), kidnapping and abduction. The Law commission in 1989, 9 years after this report proposed a general provision on omissions which would not be limited to the crimes in the 1980 report by the Criminal Law revision committee.
And they wanted generally to add causation more into the Actus Reus of the crimes and also tie in the omissions element, to make the law more straightforward. However these reports were published more than 2 decades ago, and the law on omissions remains unchanged and it is likely it will remain this way for the foreseeable future.
Books S Fitzjames, Digest of Criminal Law 1887 N Haralambous, Criminal Law Directions, Oxford University Press, 2010 Jefferson, Criminal Law 9 edition, Pearson Longman 2009 Articles Ashworth, "The Scope of Criminal Liability for Omissions" (1989) 105 LQR 424 Williams, "Criminal Omissions: the Conventional View" (1991) 107 LQR 86