I certify that this is my own work. The work has not in whole or in part, been presented elsewhere for assessment. Where material has been used from other sources it has been properly acknowledgement. If this statement is untrue I acknowledged that I will have committed an assessment offence. I also certify that I have taken a copy of this assignment, which I will retain until after the Board of Examiners has published results and which I will make available on request. In recent times the criminal law has been concerned with imposing liability for omissions.
However, this was not the case in the past as the law was more concerned with the prohibition and punishment of positive acts (Card, 2004). 'An act is the most common basis of the actus reus' (ibid, p57). The actus reus of an offence is its conduct element. It 'describes what the defendant must be proved to have done (or sometimes failed to do), in what circumstances, and with what consequences' (Herring, 2006, p85). Before proceeding further it is necessary to clarify what is meant by an omission.
An omission is the failure to act which can sometimes give rise to criminal liability and this failure to act can constitute the actus reus of an offence (Herring, 2006). According to Herring (2006, p88), the criminal law on omissions states that 'a defendant is guilty of a crime only when failing to act, where he or she is under a duty to act'. These acts and omissions can be placed under the 'general rubric' of 'conduct' (Fletcher, 1978). To continue, the distinction between an omission and an act is unclear and it depends on the definition of the offence if criminal liability for an omission can be imposed (Card, 2004).
The definition of the offence may require an act to be committed or state whether a person has a duty to act in a certain situation (ibid). The question of whether the omission or failure to act can be considered as the actus reus of an offence arises. Many law experts support the view that it is impossible to cause an event simply by not doing anything. On the other hand, several law experts oppose this view and as mentioned above the law in recent times attempts, sometimes successfully, to impose liability for omissions.
The main aim of this paper is to outline the attempts of the courts to impose liability on omissions and at the same time to describe in what instances can liability be imposed. There have been a number of cases in recent years which 'touch' the area of law on omissions and will be explained further below. Ashworth (2006), states that there are arguments against imposing liability for omissions arising from the principle of autonomy which means that a person is free to act as he wishes as long as he 'does not harm or wrong others.
' However it is also argued that there are good reasons for imposing certain duties in calamitous situations (ibid). Moreover, the Law Commission's draft Criminal Code redefined the homicide offences in terms of 'causing death' rather than 'killing', and the damage offences in terms of 'causing damage' rather than 'killing' (ibid p110). The terms were redefined in order to give the possibility to the courts to construe the appropriate statutory provisions 'as to impose liability for omissions' (ibid p110).
Some statutes provide that it is an 'offence to omit to do something' (Ormerod, 2005). These are known as offences of mere omission. For example the Road Traffic Act 1988 s. 6 states that it is an offence if a motorist fails to provide a breath specimen when required to do so (ibid). These types of offences provide that a defendant is liable for an offence by failing to act and they do not cause any controversies. 'Most of them are of a regulatory nature' (ibid, p76). Offences of mere omission do not cause difficulties to the courts.
On the other hand there are the offences of omission causing a result or 'commission by omission' offences. Problems arise when these omissions are taken into consideration by the courts where a proof of a result is required (ibid). The duty to act is not clear in such cases, for example where it is argued that the omission has led to the victim's death (Reed & Seago, 2002). These duties to act developed through the common law and are common law duties. To continue, 'a man might incur criminal liability from a duty arising out of contract' (Allen, 2001, p30).
A case which illustrates such a duty is Pittwood1 where a gatekeeper at a railway station had a contractual duty to keep the gate shut whenever a train was passing. One day the gate was left open and a train hit a hay cart as it was crossing the line which resulted in the death of a man and another was seriously injured. The defendant was convicted of manslaughter on the basis of the breach of his contractual duty to shut the gate. Furthermore, a duty can arise out of a blood relationship or special relationship between people (Elliot & Quinn, 2006). In the case of Lowe2 a father had a duty to act when his baby became ill.
This duty stems from the Children and Young Persons Act 1933 which states that parents can be criminally liable if they fail to provide medical aid to their children. He did not call a doctor but he did not have the mens rea of an offence due to the fact that he was of low intelligence. Moreover, where people voluntarily choose to care for another then there is an assumed responsibility and a duty to act may arise (Card, 2004). This can be seen in the case of Stone and Dobinson3 where Stone's sister lived with him and his girlfriend, Dobinson. Stone's sister, Fanny was mentally ill and was worried about putting on weight.
'She stopped eating properly and became bed-bound' (ibid, p14). The defendants realised that Fanny was ill and made unsuccessful attempts to get medical aid and after some weeks she died. The Court of Appeal held that the couple's efforts were insufficient and that they accepted the responsibility to care for Fanny. They were found guilty of manslaughter as they failed to provide help and care to Fanny. Also, a duty can arise where a person creates a dangerous situation and fails to 'take reasonable steps to prevent the harm in question resulting' (Ormerod, 2005, p83).
This principle stems from the case of Miller4 where the defendant who was a squatter in a house, fell asleep whilst smoking a cigarette. He woke up and realised that the mattress had caught fire and without doing anything to put it out, moved to a room next door where he went to sleep. The whole house caught fire and the defendant was convicted for the offence of arson. The basis for his conviction is that 'he was under a duty to take some action to put the fire out' (ibid, p84). Additionally, duties of law enforcement may also arise.
In the case of Dytham5 a police officer was found guilty of an offence because he failed to protect a citizen who was being kicked to death. Further, a citizen is under a duty to assist a police officer to 'restore the peace' where the officer calls him to assist (Herring, 2006 p88). To continue, a duty might arise where an owner of a piece of property, or the person who controls it, fails to take reasonable steps to prevent a crime from being committed in his presence and in his premises by another person (Herring, 2006).
The case of Robson6 illustrates the above, where a publican failed to take reasonable steps to prevent some customers on his premises drinking after several hours. The court held that he helped and encouraged their crime. This type of duty is still unclear 'until we have further guidance from the courts' (ibid, p91). Finally, some cases appear to involve omissions, however, the courts treat them in terms of a 'continuing act' (Herring, 2006). This can be seen in the case of Fagan7 where the defendant accidentally drove onto a police officer's foot.
When the policeman asked Fagan to remove the car, Fagan refused to do it. He was convicted but appealed on the basis that he did not have the mens rea for the act as it accidentally happened. The court upheld the conviction and stated that Fagan's act was a 'continuing act'. This was because he was committing the actus reus of battery by 'exercising force on the policeman's foot' meaning that the act coincided with the mens rea as Fagan 'was aware of the harm he was causing' (Herring, 2006 p91).
The whole area of omissions is unclear and at present times it is unpredictable whether the courts will impose liability for an omission. As mentioned above, statutory omissions are uncontroversial. On the other hand, common law duties create controversies and conflicts. Some would say that the approach the courts would follow in the past is preferable, that is to impose sanctions on positive acts rather than for failures to act. However, in modern times the courts seem to follow a different approach in relation to omissions and they would impose liability where appropriate, as seen in the above cases.