The Importance Of Omission
This duty of care means that if you create a dangerous situation, you are liable for any harm caused if you have not taken reasonable steps to prevent the harm occurring. The act may be done innocently, but there is still a duty to prevent harm. The case of R v Miller illustrates this. Miller was charged with arson, contrary to ss. 1 (1) and (3) Criminal Damage Act 1971. The trial judge ruled that, even though he started the fire unintentionally, Miller became under a duty to take some action to put it out once he became under a duty to act could be implied. The duty arises out of the creation (albeit unintentional) of a dangerous situation: that is, a situation likely to cause damage. Lord Diplock stated that the actus reus of criminal damage might legitimately include ‘conduct which consists of failing to take measures that lie within one’s power to counteract a danger that one has oneself created’. Another example of this principle is in DPP v Santana-Bermudez . The Divisional Court upheld the defendant’s conviction of an assault occasioning actual bodily harm even though he had done no act that directly caused an injury because he had exposed the police officer to a risk and failed to warn her of …show more content…
Applying the ‘but for’ test seems to imply that omissions cannot in law cause a result. ‘But for’ an omission it is by definition true that the result would still have happened in exactly the same way. One response is to redefine the question and suggest that ‘but for’ the failure of the defendant to act, the harm would not have occurred.
The second disadvantage relates to the burden of proof. This has been given topicality by the proposal in the Draft Code to replace the rule in Morby by a rule requiring it merely to prove that the omission “might” prevent the occurrence of the harm. This would be a change in the substantive law, which the commission normally eschews, and a retrogressive change at that. It is extraordinary to propose that the criminal liability of omissions should be made more stringent than the criminal liability of