Criminal Law. Mark Thomas
sentence and these words were said in obiter). See also R v Bowditch (Maidstone Crown Ct, 26 January 2017). Figure 2.1 demonstrates this distinction in the form of a timeline.
Figure 2.1The duty to avert danger
Two further issues arise as a result of the decision in Miller that bear consideration.
First, the House of Lords in the above cases spoke only in terms of a physical act on the part of the defendant in setting the chain of events in motion. What, then, about an omission that creates a dangerous situation? The courts have yet to address the question of whether an omission, which creates a dangerous situation, might found liability where a further omission fails to avert the danger. One might argue that the principle of Miller should be extended to cover these situations.
example
Jack is cooking dinner and leaves the house to go to the local pub for a few beers. Whilst at the pub he realises that he left on the gas on the oven. Despite this, he does nothing and continues to drink in the pub. Jill comes home from work and lights a cigarette in the kitchen which causes an explosion.
In this case, there is no physical act on the part of Jack; rather, it is an omission (failure to turn off the gas) that created the dangerous situation which he then failed to avert.
Secondly, what of multiple defendants involved in the same transaction? Should one defendant be liable for a failure to avert a danger set in motion by another defendant?
example
Jack punches Andy to the floor. Jill, Jack’s friend, walks past Andy and notices that he is shaking violently with white foam emerging from his mouth. Jill simply ignores this and steps over Andy without calling for assistance.
In this scenario, it is debateable whether Jill would be liable for failing to avert a dangerous situation set in motion by her friend, Jack.
in practice
There is no statement as yet that the Miller principle extends to cover these sorts of situations. It is questionable whether the latter scenario would contravene the ‘no Good Samaritan’ principle. In practice, an advocate would have to argue these points in determining whether an individual was liable for an offence.
An interesting application of the Miller principle can be seen in the case of DPP v Santana-Bermudez [2004] Crim LR 471. In this case, the victim, a police officer, undertook a lawful search of the defendant and asked him to turn out his pockets, the contents of which included some syringes. Specifically, the officer asked the defendant whether he had any ‘sharps’ on him; the defendant failed to answer. When asked whether he had any more needles, the defendant lied, resulting in the victim pricking her finger on a hypodermic needle. The Divisional Court ruled that the defendant had created a dangerous situation through his lie, thereby exposing the officer to a risk of injury, which he failed to rectify by informing the officer of the presence of needles. The defendant was charged with and convicted of ABH.
2.6.4.7Are the categories ‘closed’?
The list of established duties above is not a ‘closed list’ (R v Khan and Khan [1998] Crim LR 830). These are common law duties (ie judge-made duties) and the list is not exhaustive. As a result, there is the possibility that, in a future case, one of the existing duties may be extended to cover other situations, or you may argue that a new duty may be recognised. The latter is highly unlikely and rather remote but is still worth considering. It is advised, therefore, that when faced with a failure to act in a problem-based question and a recognised duty cannot be found, but it seems right that liability should be found, these possibilities should be highlighted.
in practice
An important practical point is to question who is responsible for ‘extending’ the various duties to act. Is that a matter for Parliament, the judiciary, or the jury on a given day?
As stated above, the general view is that, despite a few exceptions, the duties exist in the common law and thus should be modified, extended or created by the judiciary. Indeed this is the approach taken in the case of R v Singh (Gurphal) [1999] Crim LR 582. However, a difficulty has arisen since the case of R v Khan v Khan [1998] Crim LR 830, where the Court of Appeal held that whether a duty of care exists is a matter for the jury on the facts they are trying.
2.6.4.8Who decides whether there is a duty to act?
Above, you will see that the Court of Appeal in Khan identified that whether a duty to act exists is a matter for the jury. Jefferson (Criminal Law, 12th edn (Pearson, 2015)) argues that ‘Khan is wrong. Juries cannot expand and contract the various duties to act … juries cannot alter the outcome … by changing the law.’ Jefferson goes on to say that ‘… Singh represents the better view, because Khan might lead to a jury saying that because the victim is dead, there must have arisen a duty to prevent that death’. The issue has been addressed and resolved by the Court of Appeal in Evans. In particular, Lord Judge CJ explained that:
In any cases where the issue is in dispute … and assuming that the judge has found that it would be open to the jury to find that there was a duty of care, or a duty to act, the jury should be directed that if facts a + b and/or c or d are established, then in law a duty will arise, but if facts x or y or z were present, the duty would be negatived.
In essence, whether a duty to act exists is a matter for the jury once the trial judge has decided that there is evidence capable of establishing a duty.
2.6.4.9Multiple duties
There may of course be circumstances where more than one duty to act arises in a given case. It will be necessary, therefore, to consider each duty to act and analyse which duty would be the strongest to take forward when considered in light of the three requirements for omission liability. It may be the case that one duty stands out, or that a combination of duties can work together to establish liability. Take the case of Evans as an example. The number of duties that arose in that case were quite substantial:
• duty based on a special relationship (half-sisters);
•duty based on the assumption of responsibility and care (the defendant looked after the victim); and
•duty based on the creation of a dangerous situation (Evans contributed to a dangerous situation by supplying the drugs and failed to avert it).
2.6.5Can an individual be ‘released’ from his duty?
Whether an individual can be ‘released’ from his duty is different from that of a ‘termination’ of duty. In the latter case, we are concerned with a situation where the duty to act has finished as a result of the completion of a certain act or after a certain time period. For example, the statutory duty under s 1 of the Children and Young Persons Act 1933 is terminated upon the child reaching 16. Some other examples may assist with this idea of ‘termination’:
•During the school day, the individual teachers have a duty to act in relation to their pupils. Out of school hours, however, their duty is terminated until it recommences the following day.
•Upon Jack placing his elderly mother into a care home, his duty towards her will have terminated. If his elderly mother were to return to his care, however, the duty would naturally recommence.
The idea of termination is not concrete. One may argue that a duty never terminates but, rather, is put ‘on hold’. One may also argue that there