Omissions Liability for Homicide Offences: Reconciling R v Kennedy with R v Evans
| Author | Dennis J. Baker |
| DOI | 10.1350/jcla.2010.74.4.645 |
| Published date | 01 August 2010 |
| Date | 01 August 2010 |
| Subject Matter | Comment |
COMMENT
Omissions Liability for Homicide Offences:
Reconciling R vKennedy with R vEvans
Dennis J. Baker*
Keywords Causation; Manslaughter; Omissions; Gross negligence;
Assumed duties
In Rv Miller1a squatter started a fire by smoking whilst in bed and as a
result caused a fire. Instead of putting the fire out or calling the fire
brigade, Miller moved to another room. Miller was convicted of arson
on the basis that he had created the danger by his own direct act and
because he intentionally or recklessly failed to do anything to counteract
the harm that he had set in motion.2The defendant’s earlier negligent
acting set the harm in motion; therefore he had a duty to counteract it.
By omitting to act to counteract the harm, Miller recklessly allowed
his earlier innocent actions to cause serious harm. Professor Glanville
Williams outlines the inculpating nature of this type of wrongdoing in
the following passage:
The principle is that where a person accidentally creates a danger he or she
can be liable for letting the danger eventuate. More technically, the rule is
that where the law forbids a particular result (whether we call the crime a
result-crime or not), then mens rea conceived after the act and before the
result occurs (but at the time when the defendant could still have pre-
vented the result) can (as the law is now established by Miller) lead to
liability, provided that the defendant’s conduct falls within the terms of the
offence.3
If Miller had not only destroyed the house, but had also caused the death
of an occupant, a manslaughter charge would have been appropriate. It
would be grossly negligent to sit idly as a building burns down when you
have started the fire and when you have no way of knowing whether
there are people inside it. Such a conclusion does not seem too con-
troversial and is supported by the decision of Rv Evans.4In Rv Evans,5
Gemma Evans, a 24-year-old woman, purchased heroin and supplied
her 16-year-old sister, Carly. Carly self-injected in a house in which she
resided with Evans (the defendant) and her mother. After injecting the
drug she developed and complained of symptoms consistent with an
* School of Law, King’s College London; e-mail: dennis.baker@kcl.ac.uk.
1 [1983] 2 WLR 539. In Rv Evans [2009] EWCA Crim 650, [2009] 1 WLR 1999, the
Miller doctrine was invoked to ground a conviction for gross negligence
manslaughter.
2 This approach was first expounded in the USA in Commonwealth v Cali, 247 Mass 20
(1923).
3 Glanville Williams, Textbook of Criminal Law (Steven & Sons: London, 1983) 155–6.
4 [2009] EWCA Crim 650, [2009] 1 WLR 1999. See also R vWilloughby [2004]
EWCA Crim 365, [2005] 1 WLR 1880.
5 [2009] EWCA Crim 650, [2009] 1 WLR 1999.
310 The Journal of Criminal Law (2010) 74 JCL 310–320
doi:10.1350/jcla.2010.74.4.645
To continue reading
Request your trial