Liability For Omissions Notes
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Criminal Law- Herring Chapter 2
The reason we don't criminalise omissions is because it is telling someone to do a good thing, which removes their ability to make their own positive moral choices and therefore reduces the ability to have a fulfilling life.
• Actus reus is the conduct element of a crime, p.85
• A conduct crime is one in which a forbidden action is taken
• A result crime is one in which a forbidden act is taken and causes a particular result
• Where an act is not taken voluntarily, the defendant is an "automaton" and is not guilty p.87
• A person is guilty of a crime due to their failing to act, only when they have a duty to act
• Statutory crimes cannot find someone guilty on the basis of omission- p.88
• Duties to act: Statutory duty (e.g. to drive safely), law enforcement (duty of a policeman to protect the public), contractual duty (a duty that may arise through employment e.g. as a train driver), assumed duties (voluntarily taken on duties of care e.g. agreeing to look after a sick person). P.88-89
• Other duties include failing to stop others using your property for the purpose of crime; a continuing action where actus reus and mens rea combine e.g. Fagan case p.91; where you have created danger and must therefore remove it.
• The defendant is under a duty to act if it is reasonable that they should do so, e.g. a mother finds her child drowning in a shallow pond- p.94
• One can be liable for being in a certain situation, without having undertaken an actus reus. E.g. Larsonneur was in the UK having been returned there by the Irish police- possibly unfair since she did not wish to return to UK though in going to a country where she had no more right to be than in the UK, she took the risk of being returned. P.100
• Vicarious liability is where one person is liable for the actions of another e.g. an employer for an employee
• Causation is left to the common sense of a jury- p.101
• Factual causation is the test that asks whether "but for the action of the defendant" would the victim have suffered in the way and time that they did. This
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