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Evans (Gemma) a mother who failed to summon help for her 16-year-old daughter who collapsed after taking heroin was
convicted of manslaughter. Her older half-sister was held not to be under a duty of care simply by virtue of their blood
relationship. The court will be reluctant to impose a duty between two spouses who have separated, but may be very willing to
impose a duty if one person is disabled and depends on a friend for their well-being. In 25Bowditch a man met a woman at a
nightclub. They were ‘messing about’ by the sea, when she fell in. He simply walked away and left her to drown. He was
convicted of manslaughter. It may be that because they had embarked on a risky enterprise together that they could be said to
have undertaken to look after each other. But that seems to be pushing that concept to the limits. In 28

In conclusion it seems that outside the context of parent–child relationships what matters is not the nature of the blood tie, but
rather whether one party has taken on responsibility for the other. As Andrew Ashworth’s detailed analysis concludes:

The strongest criterion is D’s assumption of responsibility for V’s welfare, combined with the requirement that D be aware, or ought
reasonably to be aware, that V is in a life-threatening condition. The assumption of responsibility can derive from an explicit statement
or agreement, or it can be inferred from a settled relationship of mutual interdependence.29

Controversially, a duty of care was held to exist in the following case:

R v Stone; R v Dobinson
[1977] QB 354 (CA)

The appellants were John Edward Stone (a man aged 67, of below average intelligence, partially deaf, and almost blind)
and Gwendoline Dobinson (aged 43 and described by the court as ‘ineffectual and inadequate’). Stone’s sister, Fanny,
aged 50, came to live with them and their son Cyril. She suffered from anorexia nervosa and so often denied herself
food and stayed in her room for days at a time. Once she was found by the police wandering the street and the
appellants then tried to find her doctor but were unable to do so. Fanny grew weaker and became confined to bed. The
appellants did nothing to get help for her, despite requests from neighbours. Subsequently she was found dead: naked,
very dirty, and in appalling conditions. The appellants were convicted of manslaughter and appealed.

Lord J us t ic e Geof f re y La ne

There is no dispute, broadly speaking, as to the matters on which the jury must be satisfied before they can convict of manslaughter in
circumstances such as the present. They are: (1) that the defendant undertook the care of a person who by reason of age or infirmity
was unable to care for himself; (2) that the defendant was grossly negligent in regard to his duty of care; (3) that by reason of such
negligence the person died. It is submitted on behalf of the appellants that the judge’s direction to the jury with regard to the first two
items was incorrect.
At the close of the Crown’s case submissions were made to the judge that there was no, or no sufficient, evidence that the
appellants, or either of them, had chosen to undertake the care of Fanny. …
This court rejects that proposition. Whether Fanny was a lodger or not she was a blood relation of the appellant Stone; she was
occupying a room in his house; Mrs Dobinson had undertaken the duty of trying to wash her, of taking such food to her as she required.
There was ample evidence that each appellant was aware of the poor condition she was in by mid-July. It was not disputed that no
effort was made to summon an ambulance or the social services or the police despite the entreaties of Mrs Wilson and Mrs West. A
social worker used to visit Cyril [Stone’s disabled son]. No word was spoken to him. All these were matters which the jury were entitled
to take into account when considering whether the necessary assumption of a duty to care for Fanny had been proved.
This was not a situation analogous to the drowning stranger. They did make efforts to care. They tried to get a doctor; they tried to
discover the previous doctor. Mrs Dobinson helped with the washing and the provision of food. All these matters were put before the
jury in terms which we find it impossible to fault. The jury were entitled to find that the duty had been assumed. They were entitled to
conclude that once Fanny became helplessly infirm, as she had by 19th July, the appellants were, in the circumstances, obliged either
to summon help or else to care for Fanny themselves.

Appeals against conviction dismissed. Appeal by the appellant Stone against sentence allowed; sentence varied (from three years to
twelve months).

Ownership or control of property

It may be that if someone owns a piece of property and another person in their presence commits a crime using that property
the owner is under a duty to seek to prevent the crime in so far as is reasonable.30 There certainly have been some cases where
the courts have found an owner criminally liable under such circumstances, although this is normally based on liability for
aiding and abetting the other person For example in Tuck v Robson31 a publican failed to intervene to prevent customers on
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aiding and abetting the other person. For example, in Tuck v Robson a publican failed to intervene to prevent customers on
his premises drinking after hours. He was found to have aided and abetted their crime.32 The precise scope of this duty is
unclear until we have further guidance from the courts.33

Continuing act

The courts have held that some cases which appear to be cases involving omissions have, in fact, involved a ‘continuing act’.
This can be best explained by referring to an example. In Fagan v Metropolitan Police Commissioner34 Fagan drove his car
accidentally onto a policeman’s foot. When the policeman asked him to remove it, he refused to do so. Fagan was convicted but
appealed on the basis that the only act he did was driving onto the foot and that was performed without mens rea. By the time
he realized his car was on the foot (and he had mens rea) he was not doing an act. The Divisional Court, however, upheld
Fagan’s conviction on the basis that he was committing the actus reus of battery (exercising force on the policeman’s foot) for
the whole of the time he had his car on the constable’s foot. Fagan was guilty once he was aware of the harm he was causing to
the policeman because then he had both the actus reus and mens rea of the offence at the same time.

Creation of the danger

Where someone has created a dangerous situation they may be under a duty to act to prevent harm resulting. The leading case
on this is the following:

R v Miller
[1983] 2 AC 161 (HL)

James Miller, who was drunk, fell asleep with a lighted cigarette in his hand in the house in which he was staying. He
subsequently woke to discover that his cigarette had set his mattress on fire. He simply moved out of the room into a
neighbouring room. He was convicted of arson. The Court of Appeal dismissed his appeal but gave leave to appeal to
the House of Lords, certifying the following question of law: ‘[W]hether the actus reus of the offence of arson is present
when a defendant accidentally starts a fire and thereafter, intending to destroy or damage property belonging to another
or being reckless as to whether any such property would be destroyed or damaged, fails to take any steps to extinguish
the fire or prevent damage to such property by that fire?’

Lord Diploc k

… The first question to be answered where a completed crime of arson is charged is: did a physical act of the accused start the fire
which spread and damaged property belonging to another …?
The first question is a pure question of causation. It is one of fact to be decided by the jury in a trial on indictment. It should be
answered ‘No’ if, in relation to the fire during the period starting immediately before its ignition and ending with its extinction, the role of
the accused was at no time more than that of a passive bystander. In such a case the subsequent questions to which I shall be turning
would not arise. The conduct of the parabolical priest and Levite on the road to Jericho may have been indeed deplorable, but English
law has not so far developed to the stage of treating it as criminal and if it ever were to do so there would be difficulties in defining what
should be the limits of the offence.
If, on the other hand, the question, which I now confine to: ‘Did a physical act of the accused start the fire which spread and
damaged property belonging to another?’, is answered ‘Yes’, as it was by the jury in the instant case, then for the purpose of the further
questions the answers to which are determinative of his guilt of the offence of arson, the conduct of the accused, throughout the period
from immediately before the moment of ignition to the completion of the damage to the property by the fire, is relevant, so is his state of
mind throughout that period.
Since arson is a result-crime the period may be considerable, and during it the conduct of the accused that is causative of the result
may consist not only of his doing physical acts which cause the fire to start or spread but also of his failing to take measures that lie
within his power to counteract the danger that he has himself created. And if his conduct, active or passive, varies in the course of the
period, so may his state of mind at the time of each piece of conduct. If, at the time of any particular piece of conduct by the accused
that is causative of the result, the state of mind that actuates his conduct falls within the description of one or other of the states of mind
that are made a necessary ingredient of the offence of arson by s 1(1) of the Criminal Damage Act 1971 (i.e. intending to damage
property belonging to another or being reckless whether such property would be damaged), I know of no principle of English criminal
law that would prevent his being guilty of the offence created by that subsection. Likewise I see no rational ground for excluding from
conduct capable of giving rise to criminal liability conduct which consists of failing to take measures that lie within one’s power to
counteract a danger that one has oneself created, if at the time of such conduct one’s state of mind is such as constitutes a necessary
ingredient of the offence. I venture to think that the habit of lawyers to talk of ‘actus reus’, suggestive as it is of action rather than
inaction, is responsible for any erroneous notion that failure to act cannot give rise to criminal liability in English law.

Appeal dismissed.

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This case was a difficult one for the House of Lords. The problem was the requirement that the actus reus and mens rea of the
offence must exist at the same moment in time. At first sight in Miller the actus reus was the dropping of the cigarette by the
defendant, setting off the fire, but at that point there was no mens rea (he was asleep). However, at the time when the
defendant had the mens rea (when he realized there was a fire) he was not doing anything. The House of Lords upheld the
conviction by finding that Miller was under a duty to stop the fire because he had started it, and that on leaving the room in
breach of his duty to act he was therefore committing the actus reus of the offence. At that time he also had the necessary mens
rea.

The House of Lords’ reasoning was applied in Evans,35 where the Court of Appeal held that a young woman who supplied her
sister with drugs owed her a duty of care. When the sister collapsed and the woman failed to seek help, she could be liable for
manslaughter on the basis that she owed her sister a duty to summon help because she had created the dangerous situation by
supplying the drugs, and had breached that duty.36

In Bowler37 the defendant and his partner (Williams) shared an enjoyment of ‘extreme masochistic sexual experiences’. They
met online and Williams expressed an interest in being mummified by being wrapped in cellophane and/or PVC. With
Williams’s encouragement, Bowler wrapped Williams in cellophane and made air holes and then loosely wrapped him in PVC.
They then had sex. Bowler left him wrapped up and checked after 30 minutes and he was still moving. Bowler then checked
around an hour later and Williams was lifeless. He did not call for an ambulance for three hours. The Court of Appeal justified
the conviction for manslaughter on the basis that Bowler had left Williams in a helpless situation which was obviously
dangerous. He was therefore under a duty to summon help or release him from the dangerous situation. The fact that the victim
wanted to be put into that position was irrelevant to the defendant having to take reasonable steps to look out for him.

Novel situations

It seems that the list of exceptions is not necessarily a closed list. The courts may be willing to create new circumstances under
which there is a duty to act.38

Questions

1. Lord Diplock in Miller acknowledged that there were two ways of explaining why Miller was liable: (a) the duty
theory (Miller was under a duty to stop the fire because he had started it (albeit unintentionally)), (b) the
continuing act theory (Miller’s initial act was regarded as a continuing act until the result was produced). Which
of the two theories do you think a jury would more readily understand? Lord Diplock thought the duty theory
was easier.

Please visit the online resources for guidance on answering this question.

What is required if there is a duty to act?

The simple answer to this question is that the defendant must do what is reasonable. What is reasonable will be decided by the
jury. If a mother finds her child drowning in a shallow pond and she can easily save her child, she should do so, and if she does
not she will have committed the offence of murder or manslaughter. If, however, the child is drowning in a tempestuous sea
and she can attempt to rescue the child only by placing her own life in grave danger there is no legal obligation to do so. It may
be that the reasonable thing to do is not to rescue the victim but to summon help. In Singh (Gurphal)39 a landlord and his
agent were responsible for failing to bring in experts when tenants complained that their gas fires were not working properly
and subsequently a tenant died from escaping carbon monoxide.

One issue that is not yet resolved is whether the defendant is required to do what is reasonable for them or what would be
reasonable for an ordinary person in their shoes. The Court of Appeal in Stone and Dobinson,40 quoted previously, did not
directly address the issue, but seemed to ignore the defendants’ disabilities and require the defendants to act as ordinary
people.

In R (Jenkins) v HM Coroner for Portsmouth and South East Hampshire and Cameron and Finn41 a man became seriously ill.
His partner and friends advised him to see a doctor. However, due to his beliefs he refused to see one. The court rejected an
argument that his partner or friends breached their duty to him to summon help because it was his choice to refuse help and his
friends correctly respected his decision.42 It would have been different if he was a child or lacked mental capacity.

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When will the omission cause the result?

It must be shown that the omission caused the harm. In other words, had the defendant acted reasonably in accordance with
their duty the harm would not have occurred. For example, in Dalloway43 the defendant was driving a cart without keeping a
proper grip on the reins. A young child ran out in front of the cart and was killed. It was held that if the defendant was to be
convicted it had to be shown that had he been driving properly and holding onto the reins he would have been able to avoid
injuring the child.44 Similarly, if a father sees his child drowning in a pond and does nothing to help he is not criminally
responsible for causing the child’s death if it is shown that even if he had tried to save the child it would have been too late to do
so.45

Distinguishing between omissions and acts

Although the law draws a sharp line between acts and omissions there can be great difficulties in distinguishing between the
two.46 This has led some commentators to question whether it is proper to place so much weight on the distinction.47 An
example of the difficulty in drawing the distinction between acts and omissions is Speck.48 In that case a child innocently
placed her hand on a man’s genital area and he did nothing to move her hand. Was this an act or an omission by the man? It
was held in effect to be an act by the man, although it might more naturally be regarded as an omission. It is hard to avoid the
feeling that the court understandably disapproved of the man’s actions and so labelled it as an act to ensure a conviction.

A leading case demonstrating the difficulty in drawing the distinction between acts and omissions is . In order to understand
the House of Lords judgment it is necessary to appreciate three important points of medical law. The first is that a doctor must
not force the treatment on a patient who has mental capacity and refuses to consent, even if without the care the patient will
die.

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