This essay affirms that it is possible to draw a distinction; albeit not a clear one. A distinction is important in order to avoid overlooking omissions, which can form a basis for criminal liability; and in the doctrine of actus novus interveniens.
A clear distinction is seen in the definitions of an act and omission. When the actus reus, and mens rea of a crime exists – an act is an action that have caused harm to a person, or damage to property, while an omission is where an action that could have reduced or prevented the harm or damage is not taken when the person in under a duty.
However, the judges faces difficulty in distinction when (1) the actus reus of a crime does not admit an omission to form the basis of satisfying its criteria (2) the statute law does not express when a person has an obligation to act and how an omission could amount to crime. In such cases, judges have attempted to circumvent these hurdles by disguising an omission as an act to criminalize the defendants.
In Fagan v Metropolitan Police Commissioner , Fagan’s act of accidentally driving onto a policeman’s foot, and his refusal to remove the car was seen as one continuous act. This decision circumvented the issue of necessitating the mens rea and actus reus of battery to coincide; however, it led to the blurring of the distinction.
Similarly, in the case of R v Miller , the Court of Appeal held that Miller’s accidental falling asleep with a lit cigarette and his movement to the next room was one continuous reckless act. However, in the House of Lords, Lord Diplock applied the theory of duty. A duty had arisen as he saw Miller creating a situation that endangered others and it was reasonably foreseeable that it would lead to damage of property. His consequent omission to put out the fire was said to amount to the actus reus of arson. As such, a distinction could have been drawn in Fagan if his act of driving the car onto the victim was perceived to have led to a duty, and his following omission could have been seen to form the basis of an actus reus of battery.
Distinctions could be clearly drawn if there were reforms in the statutes for the actus reus of certain crimes to (1) admit omissions and (2) identify when a duty of care should arise, and how an omission could satisfy its criteria. One case showing the possibility of suggesting such reforms would be DPP v Santana-Bermudez , where D was held to have committed battery when his failure to reveal his sharps (an omission) led to an injury sustained by a police office; it was held that “where someone creates a danger and thereby exposed another to a reasonably foreseeable risk of injury which materializes, there is an evidential basis for the actus reus of an assault occasioning actual bodily harm.”
Alternatively, an act has also been seen as an omission in order to avoid criminal liability. In the case of Airedale N.H.S. Trust v Bland , the doctor’s decision to halt treatment was seen as an omission and it could not amount to murder, as he was no longer under a duty.However, it can be said that most people would see the removal of life support as a positive act. It can be suggested that reforms provide a special provision to prevent criminal liability in specific cases whereby an act discontinues life support. It should only amount to criminal liability if the doctor had a duty to care for the patient: this can avoid acts in similar cases being seen as omissions.
Another case that judges faced a difficulty with a distinction was in R v. Speck . The court held that an act of gross indecency was committed when D did not do anything to move a child’s hand when she placed it over his genital area. To achieve a distinction in this case, and to avoid confusion from a layman’s point of view, D’s inaction should have been seen as an omission.
Speck, being in a position that could have prevented the sexual indecency should have performed the duty of care to do so. His omission could be taken to form the evidential basis for the actus reus of gross indecency. Evidently, the actus reus in sexual offences are not wide enough to accommodate the possibility of omissions committed under a duty of care.
Despite steps taken in case law to provide for omissions under a specific duty to amount to a criminal offence such as in R v Stone and Dobinson (1977), where the existence of a special relationship and an assumption of duty resulted in the appellant’s omission to amount to manslaughter - a clear distinction is only possible if further steps could be taken to ensure that one should be held liable when one’s omission has endangered others or could reasonably be foreseeable to lead to consequences that amount to a crime.
However, reforms that propose to change the law demonstrate the possibility of a clear distinction only in theory; but, practically speaking, the statutes could not possibly specify exactly when a duty should arise for every crime, and the immeasurability of what is “reasonably foreseeable” would result in an element of uncertainty. Thus, it can be said that a distinction is only possible, but not a wholly clear one.
From the case of R v Stone and Dobinson (1977), it can be seen that a distinction is important as an omission to perform a duty of care affords a separate avenue, other than an act, for that person to be liable for a criminal offence; in this case, the appellants were guilty of manslaughter by gross negligence. However, in the case of a death, the causation either by an act or omission lays equal weight.
This is demonstrated in the case of R v Gibbons and Proctor (1918) and R v Khan (1998), where an omission could amount to manslaughter and murder. Also, in the case of R v Firth (1990), D evaded a liability by deception and was still charged under the Theft Act 1978 s2. He would have still been guilty regardless of whether it was an act of commission or an omission. Since both acts and omissions could lead to equivalent punishments, it seems that a distinction is inconsequential. Also, in cases of strict liability, since the punishment is result-based and not actions or omissions based, a distinction seems to be immaterial.
Also, it can be regarded as inconsequential as both acts and omissions require voluntariness. For example, a person is guilty of murder if they are found to have the mens rea and actus reus, which they voluntarily perform. Yet, in order to refrain from acting, one is also doing so voluntarily. In Miller, he voluntarily left the burning mattress that he had accidentally set on fire, whereas a person who had set mattress on fire would also be convicted of arson. Theoretically, involvement of decision-making in both is what makes it unimportant to distinguish between the two.
Nevertheless, it is arguable that the distinction between an act and an omission serves an important purpose in criminalizing some behavior that can only be solely classified as an act or omission. In R v Dytham , a police officer’s omission amounted to misconduct in a public office and in R. v Ahmad , a landlord’s omission could not amount to the crime in s1 of the Protection From Eviction Act 1977, where it was held that an act had to be committed. Several statutory motor offences also require an omission to be liable for conviction.
Lastly, in the concept of novus actus interveniens, a distinction is crucial as omissions have less causal potency than acts. In R v Jordan (1956), and R v Cheshire , the doctor’s act of giving the victim a drug was held to have broken the chain of actions, whereas a doctor’s negligence was held not to have done so. In conclusion, it can be held that distinctions are possible, but a lack of clarity would still subsist. And it is important to ensure punitive width, and in the doctrine of novus actus interveniens. (1500 Words)
List of Cases
Airedale N.H.S. Trust v Bland  A.C. 789 DPP v Santana-Bermudez  EWHC 2908 Fagan v Metropolitan Police Commissioner  1 QB 439 R. v Ahmad  Crim. L.R. 739 R v Cheshire  1 WLR 844 R v Dytham  Q.B. 722 R v Firth (1990) CA R v Gibbons and Proctor (1918) 13 Cr App Rep 134 R v Jordan (1956) 40 Cr App R 152 R v Khan & Khan (1998) CLR 830 R v Miller  UKHL 6 R v Stone & Dobinson (1977) QB 354
-------------------------------------------- [ 1 ]. Fagan v Metropolitan Police Commissioner  1 QB 439 [ 2 ]. R v Miller  UKHL 6 [ 3 ]. DPP v Santana-Bermudez  EWHC 2908 [ 4 ]. DPP v Santa-Bermudez  EWHC 2908, para .10. [ 5 ]. Airedale N.H.S. Trust v Bland  A.C. 789 [ 7 ]. R v Stone & Dobinson (1977) QB 354 [ 8 ]. R v Stone & Dobinson (1977) QB 354 [ 9 ]. R v Gibbons and Proctor (1918) 13 Cr App Rep 134 [ 10 ]. R v Khan & Khan (1998) CLR 830 [ 11 ]. R v Firth (1990) CA [ 12 ]. R v Dytham  Q.B. 722 [ 13 ]. R. v Ahmad  Crim. L.R. 739 [ 14 ]. R v Jordan (1956) 40 Cr App R 152 [ 15 ]. R v Cheshire  1 WLR 844