Should a case similar to Dytham arise today, the defendant may also be liable for the new offence of corrupt or improper exercise of police powers contrary to s 26 of the Criminal Justice and Courts Act 2015.
2.6.4.2A duty imposed by statute
There are many statutory provisions (mostly regulatory) which specifically impose duties on particular persons to act in certain ways and which impose criminal sanctions for failing to act. Such liability is often referred to as ‘direct liability’. Road traffic law provides many examples of this, including failing to provide a specimen of breath when required to do so (Road Traffic Act (RTA) 1988, s 7(6)) and failing to provide the name and address of a person involved in a road traffic accident (RTA 1988, s 170). A useful guide when considering duties imposed by statute is to check the wording of the offence.
We shall take two more examples to prove this point. Section 24A of the Theft Act 1968 provides that it is an offence if a person should dishonestly fail to take such steps as are reasonable in the circumstances to secure that any wrongful credit to an account held by him is cancelled. In addition, s 5 of the Domestic Violence, Crimes and Victims Act 2004 creates an offence of failing to protect a child or vulnerable adult from a risk of death or serious physical harm by a person who lives with them or has frequent contact with them (see R v Khan [2009] EWCA Crim 2).
All four examples above refer to a ‘failure’ to act in a certain capacity. Although there are other duties imposed by statute that do not include the word ‘failure’ (for example, s 19 of the Terrorism Act 2000 and s 84 of the Companies Act 2006 use the phrases ‘does not disclose’ and ‘fails to comply’ respectively), the statutes are clear in their wording that there is a duty to act, and an omission will result in criminal liability.
2.6.4.3Contractual obligations
Ordinarily, a contractual obligation exists only between those individuals party to the contract (often referred to as being inter se). In this regard, the law of contract is often distanced from the reach of criminal law. However, it has been understood that a failure to fulfil contractual obligations, that is likely to endanger lives, can lead to criminal liability. The classic example of this can be seen in R v Pittwood (1902) 19 TLR 37. The defendant was employed to operate a level-crossing on a railway but omitted to close the crossing gates when a train was signalled. A cart was crossing when a train struck it and killed one of the carters. The defendant was charged with and convicted of gross negligence manslaughter. As you may have learned in the law of torts, there is often a difficult divide to be made between contractual and tortious breaches. Pittwood was likely in breach of contract by failing to close to gate; however, the victim was not a party to the contract (the contract was between the defendant and his employers), and thus no claim could be founded there. More accurately, the defendant’s liability can be found in the tortious duty of care to the users of the crossing, whom he was paid to protect in his duty and whose lives may be endangered should he fail to perform his duty. For a more recent application of the principle in Pittwood, see R v Yaqoob [2005] EWCA Crim 1269 where a taxi manager was liable for failing to have the tyres of a minibus checked as part of the vehicle’s MOT resulting in a fatal accident involving that vehicle.
Importantly, the issue here is whether an individual has failed to perform their contractual obligation. Should an individual perform such an obligation but the victim suffers regardless, it will become harder to establish that individual’s liability. Take the following example:
example
Jack is a lifeguard at the local swimming pool. Jack notices that Jill is struggling to swim and appears to be drowning. Jack dives into the pool without hesitation to save her. Unfortunately, despite his best efforts, Jack is unable to save Jill from downing.
In this instance, Jack cannot be said to have failed to act – he dived into the pool to save Jill. His contractual obligation will require him to protect the safety of pool users. Whilst Jack has failed to save Jill, he has appeared to make every effort to do so and has not omitted in his contractual duties. In that regard, Jack may not be liable for the death of Jill.
A debate that is open for interpretation is whether the duty to act imposed on emergency service providers, such as the police, paramedics and the fire service, would more accurately fall under this heading. Indeed, each of these services act under an official duty; however, such duty cannot exist without a contract of employment. On that basis, it is questionable whether the duty on emergency services personnel would be more apt under this heading given their contractual obligation or whether the duty remains one of official duty. Such point remains moot as, in practice, a failure to act will be found in certain circumstances, but it is still helpful to attempt to categorise such individuals and find the potential basis for their duty to act.
2.6.4.4Duty by relationship
One of the most common and cited examples of the duty to act is in the circumstances where a duty arises as a result of a relationship between the defendant and the victim. Known as ‘derivative liability’, where a bond exists between two individuals such that they are in a close or special relationship with one another, the law may impose a duty on either individual to act. In practical terms, the closer the relationship between the pair, the more likely the law is to impose a duty to act on one for the other.
Examples of common duties by relationship include:
•parent and child;
•spouses; and
•doctor and patient.
As shall be questioned below, however, the extent of relationships may well vary with certain classes of individual being responsible for others. Indeed, the law in this area has developed on a case by case basis and may not always appear to be consistent or coherent. Table 2.7 provides an overview of these duties.
Table 2.7Duty established by special relationship
| Duty | Examples |
| Parent and child | Section 1 of the Children and Young Persons Act 1933 provides: ‘A parent or any other person over the age of 16 years who has responsibility for a child under that age may incur liability for any wilful neglect of that child that was likely to cause unnecessary suffering or injury to health.’ This includes a failure to provide adequate food, clothing, medical care, etc. See R v Lowe [1973] QB 702 for an example of an upheld conviction under this statute. |
|
In R v Gibbins and Proctor (1918) 13 Cr App R 134, the defendants deliberately starved the victim, Nelly (D1’s daughter; D2 being the girlfriend of D1), who died as a result. Both defendants were convicted of murder. D1 owed the victim a duty as a parent, and D2 owed a duty by voluntarily assuming parental responsibility for the victim (in that she received money for purpose of buying food but failed to do so). It remains unclear how far this relationship ground may extend and whether an obligation is owed
|