The following Corporate Crime guidance note provides comprehensive and up to date legal information covering:
A defendant must be shown to have had the relevant mental state of mind or intention at the time that the act comprising offence is committed. The conduct element of an offence usually requires proof of a positive act. There is no general duty to act, for example as a passer-by to save a person who appears to be drowning in a lake. An omission or failure to act will constitute the conduct or action element of the offence, and so give rise to liability, only where the defendant is under a legal duty to act. Where statute provides that an offence may be committed by omission it imposes a duty on a class of people and defines the scope of the duty. For example, failing to provide a specimen of breath when requested to do so contrary to the Road Traffic Act 1988, s 6 or failure to keep proper accounts or business records under the Companies Act 2006.
Where the offence is a result crime and requires proof of the consequences of the defendants conduct, such as murder, the court will determine whether a defendant's omission is criminal following consideration of two questions:
is the offence capable of being committed by omission?
was the defendant under a duty to act?
Where the court finds that the answer to both these questions is yes, the burden remains on the prosecution to prove all the other elements of the offence and the mental element required beyond reasonable doubt.
A duty to act may arise from:
a special relationship
where the defendant creates a dangerous situation
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