The issue of omission constituting to criminal liability, the laws, statues and precedents that go alongside it are extremely serious and widespread with implications in the English legal system.
The general rule in criminal law requires the prosecution to prove both the actus reus {guilty act} and mens rea {guilty mind} of an offence, without the presence of this two elements; a person can not usually be found guilty.
English law on criminal liability does not occur as a result of failing to act except if you have a duty to act as created by statues. Some statues law obliged people to act and failure would constitute to a criminal offence. Such as the Road Traffic Act 1988 [1] , that require a driver to provide a sample of breath when required and failure to do so is a criminal offence.
A duty to act arise where it has been voluntarily assumed such as the case of R v Stone and Dobinson [2] - Stone and Dobinson though disabled took in a bedridden relative with serious infection and failed to summon help. They were convicted of negligent manslaughter on the ground that they voluntarily assumed a duty of care for the victim by taking her into their home and providing for her. Contractual duty to act arises as seen in the case of R v Pittwood. [3] - A gate keeper negligently left the gate open on a level crossing and a man was struck by a train and died. It was held that he was under a contractual duty to shut the gate and was liable for criminal sanction. A duty to act in such circumstances is called omissions {Failure to act}. [4]
Where an accused is charged with result crime as in the case of R v Pittwood [5] ; it is necessary for the prosecution to prove that his acts or omission caused the prohibited consequence. The actus reus of a criminal offence may be found in the failure to discharge a contractual duty, the issue of causation is for the jury to decide, the accused need not be the sole cause or even the main cause of the victims' death. However the accused act or omission must have contributed significantly to the result crime. It must be establish that the consequence would have occurred 'but for' the accused conduct. [6]
There are crimes that do not require mens rea, and most of them are created by statues such offence are called strict liability. [7] Liability for failing to prevent harm, by contrast, is liable to subject people to possibly onerous and unpredictable calls upon their time and life choices thus compromising individual autonomy and freedom. [8]
A related concern is that liability for omissions may run counter to the legality principle. Specifically, people should be punished for offending a legal rule, not simply because their conduct is immoral, injurious or offensive. [9] Such was the case of Fagan v Metropolitan Police Commissioner [10] ; a police constable wishing to question the defendant driver directed him to park his vehicle at a precise space against the kerb, whereupon the defendant drove his car on to the police.
"It was held, (Bridge J dissenting): on the facts found, the appellant had been rightly convicted, because his conduct could not be regarded as mere omission or inactivity and there was an act constituting a battery which at its inception was not criminal because there was no element of intention, but which became criminal from the moment the intention was formed to produce the apprehension which was flowing from the continuing act". [11] What seemed to be an omission was treated as an act with the use of the concept of a continuing act. [12]
Where, as in the case cited above, the offences are an omission but the legality of criminalizing offence of omission sometimes should be something done with intent and not unintentional. Fagan action was not premeditated; it was not a voluntary action and morally could be argued in not to be an omission but in English law as per Bridge J, it was held that the mens rea was present during the continuing act, and he was liable for a criminal offence. Glanville Williams [13] commented on the decision in Fagan's case [14] , as rational judgments but opposed the concurrence of act and intent on which the decision was established. [15] However, the Law Commission adopted the continuing act decision as a basis for liability. [16]
"Problem arise when the offences requires proof of a result as for example, in homicide and other offences against the person. J.F Stephen stated the rule for these offences as follows: "It is not a crime to cause death or bodily injury, even intentionally, by any omission"…. [17]
He gave the following famous illustration:
"A see B drowning and is able to save him by holding out his hand. A abstains from doing so in order that B may be drowned, and B is drowned. A has committed no offence. Stephen went on to state exceptional cases where the law imposes a duty to act; if A in the example were B's parent, A would have a duty to act and would be guilty of murder if he did not act and the child drowned". [18]
However, if the child were drowning in a rough sea, it would be dangerous to act in such circumstances. The reasonable option is to look for help and when one refuses to look for help intentionally, one would be held liable for a criminal offence. [19]
Some of the statues law promote care of the citizen while some interferes with individual autonomy due to the fact that for some reasons beyond individual control, some things might discourage or intend to discourage an individual to carry out duty to act to protect people from harm which will constitute to criminal sanctions called omissions as seen in the case of Stone and Dobinson [20] ; the defendants did not create the death of the victim, rather it was a consequence of the victim refusal to eat which lead to her demise. Arguably, the Stone and Dobinson doctrine should not extend to cases such as R v Evans [21] . In R v Evans [22] , Gemma Evans, purchased heroin and supplied her sister, Carly. Carly injected herself overdose quantity with the awareness of her sister and mother. Carly was cared for but died during the night. The medical evidence stated that the cause of death was heroin poisoning. Evans and her mother were charged with gross negligence manslaughter. It was held at the Court of Appeal that:
''These authorities are consistent with our analysis. None involved what could sensibly be described by mere omission and in each it was an essential requirement of any potential basis for conviction that the defendant should have failed to act when he was under a duty to so'' [23]
Evans summons help to keep her sister alive is enough to justify her intention not to create danger. It seems unfair to criminalize her. Assuming the medical teams were able to save her sister, Evans would have been exempted from any criminal liability, because she would have been able to establish that she took reasonable steps to seek medical assistance as soon as she became aware of the dangerous situation. [24]
The general pattern of liability for omissions imposed by the common law is that obligations of action are imposed upon citizens to satisfy general social expectation rather than general moral aspirations. Those expectations are generally limited to cases where the defendant has failed to act in breach of social responsibility which has been voluntarily assumed. [25]
It might seem a matter of sheer linguistic pedantry to allow a person to be guilty of causing injury by omissions, but denying liability in respect of crimes of lesser seriousness on the basis simply of an interpretation of what it is to assault or inflict harm upon another. [26] . Rules which are found wanting in this respect may be criticized as involving an unjustified interference with individual autonomy. [27]
Glanville Williams states: "A crime can be committed by omission, but there can be no omission in law in the absence of a duty to act, if there is an act, someone acts; but if there is an omission, everyone [in a sense] omits, we omit to do everything in the world that is done; only does of us omit in law who are under a duty to act". [28]
For the purpose of justification, it could be argued that a duty to omit would be needed to establish an omission. The general principle in criminal law should be that omissions liability should be possible if a duty is established, because in those circumstances there is no fundamental moral distinction between failing to perform an act with foreseen bad consequences and performing the act with identical foreseen bad consequences. [29]
Comparing the approach to the decision of the court in the case of Stone,Dobinson, Evans this shows that the law is not constant and questionable. It lacked code and uniform principles in ascertaining the ratio decidendi of many cases which are the main factors causing the inherent uncertainty. [30] R v Evans holds that those who fail to summon help when they can see that it is needed are causally linked to the end harm and thus may be criminalized, using 'homicide' offences such as gross negligence manslaughter to criminalized them serves no retributive goal, proportionate punishment and fair labeling should be used to sanction such offence [31]
In the case of R v Miller, [32] The actus reus of the offence of arson, contrary to s 1(1) and (3)a of the Criminal Damage Act 1971, is present if the defendant accidentally starts a fire and thereafter, intending to destroy or damage property belonging to another or being reckless whether any such property would be destroyed or damaged, fails to take any steps to extinguish the fire or prevent damage to such property by that fire. [33]
Lord Diplock commenting on the case said "that the defendant would not have been liable if his role was at no time more than that of a passive bystander. [34] The omission itself is not, of course, the offence, for criminal damage it must be shown that the omission caused the harm and one had the requisite mens rea at the time of the actus reus. [35] . "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 prevented 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". [36] It was obvious that Miller consciously created danger and is liable to a criminal sanction.
Examining the cases, laws, and context of this essay seems to suggest that some offences are more criminal than others; each person is regarded as an autonomous being, responsible for his or her own conduct, one aim of the law is to maximize individual liberty, so as to allow each individual to pursue a conception of good life with as few constraints as possible. [37] Requiring each citizen to offer assistance to others in peril might on the one hand reduce the autonomy and privacy of other in pursuing their own objectives and enjoyment. [38] It is also unacceptable in a country which purports to adhere to the principles deriving from the idea of the rule of law according to. J. Raz he [39] states:
"The law must be open and adequately publicized. If it is to guide people they must be able to find out what it is. For the same reason its meaning must be clear. An ambiguous, vague, obscure or imprecise law is likely to mislead or confuse at least some of those who desire to be guided by it."
While the criminal law sanctions apply to acts and omissions in England and Wales, It could be noted that it was a judicial decision which was fashioned long time ago that needs to be rectified. If parliament did its job properly there should never be any room for doubt whether or not an offence is one of strict liability. [40] There is no difference in criminal law, but the method by which liability is established differ where it is based on an omission as opposed to a positive act. [41] The proper response is not to distort the common law offences so as to enable us to censure conduct Parliament has not see fit to proscribe but create new statutory Offences which reflects more precisely the defendant's wrong. [42]
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