Criminal Law (2014): Omission

Alina accidentally collides with Casper who is supervising his child at the side of a swimming pool. Alina bangs her head and falls into the water. Henry, an off-duty lifeguard at the pool, sees this but does nothing to help. Neither does Casper although he sees that Alina is struggling in the water. Another swimmer, Mona, begins to effect a rescue by dragging Alina towards the side. Ellie, the official lifeguard, seeing that things are apparently in hand, returns to reading her newspaper. Meanwhile Mona, on realising she is late for an appointment, desists from any further efforts and leaves Alina still struggling in the middle of the pool, reasoning that someone else can effect the rescue. It is left to Bruce, another swimmer, to save Alina but by the time Alina is
removed from the pool she is unconscious. She remains unconscious for three days but makes a full recovery.

Discuss the possible criminal liability of Casper, Henry, Mona and Ellie.

General remarks
This is a question which tests not only your knowledge and understanding of the law but also your willingness to read and answer the question since, unusually for these kinds of problems, no death has occurred. Your job was to identify what crime, if any, may have been committed, and whether it could be committed by omission.

Common errors
Very few candidates talked meaningfully about what crime, if any, the various parties had committed, spending most of their time talking about duty situations and whether they apply. As a result, relatively few achieved the highest marks. A good answer to this question
identified the potential crimes committed and considered the issues arising in relation to each, as follows.
There are two possible crimes, s.47 and s.20.
Criminal liability for a result crime generally requires an act. An omission will count as the actus reus only if:

1. the crime charged is capable of commission by omission. Assault is not (Fagan). Section 20 may be, given that it does not require anything by way of assault or direct application of force (Burstow).
2. the respective parties owe a duty of intervention and will only support a conviction if the breach of such duty causes the result.

Liability:

Henry – no duty of intervention as his contractual duty as a lifeguard only operates when he is on duty.

Casper – Alina's fall into the water is not the result of any voluntary act of Casper and so Casper's liability depends upon him having a duty of rescue. This in turn depends upon whether the Miller principle (has he caused the dangerous situation) or its Evans variant (has he contributed to it) applies or whether simple involvement is/should be enough. We did not expect candidates to consider this last point but credit was given if they did.

Mona – her liability depends upon the application of the assumption of duty category (Instan) and also depends upon whether, assuming she is under such a duty, her desisting has caused the result (Morby). We didn't expect it, but some discussion of substantial (i.e. not the sole) cause would be useful. Some candidates, quite reasonably, treated this as a variation on the Miller principle. Credit would have been given for this.

Ellie – she is under a contractual duty but there are issues of breach. Is it reasonable not to intervene where others are doing your job? And causation as above regarding Mona.
Poor answers to this question… simply talked about the various duty situations and did not identify the offences which were chargeable or, not having read the question properly, talked about the
parties’ liability for manslaughter.

Poor answers to this question…
simply talked about the various duty situations and did not identify the offences which were chargeable or, not having read the question properly, talked about the parties’ liability for manslaughter.