1.

INTRODUCTION

1.1 Background of the study The ability of the state to condemn, restrict, and even completely take away the liberty of a person is probably one of the most awesome powers that the state may exercise, and rightfully so. The exercise of this coercive power exerts great impact upon the lives of individuals who are tried, convicted, and sentenced under the states justice system, that a misuse or abuse of such power is capable of causing a grave injustice to persons whose lives and reputations would have been irreversibly destroyed. A countrys criminal law refers to that set of laws that are imposed upon individuals for mandatory compliance. The purpose of promulgating and enforcing provisions of criminal law is to establish and maintain peace and order in a society, in order to create an environment which conducive to progress and prosperous co-existence among the nations citizenry. In order to compel compliance, the criminal law system is also a penal system, signifying that its provisions decree a set of penalties for offenders of the law, the severity of which depends upon the gravity of the offense and the grievousness of the harm done. The provisions of criminal law define those offences that individuals may be held liable for; the definition and description of the important elements of these offences is extremely vital to the fairness and effectiveness of the law, because all those upon whom the law is enforced are entitled to prior notice before the heavy burden of the law is made to apply to them. Prior notice is important for a fair and just application of the law, because individuals must first be informed of those offences for which they may be punished, in order for them to comply with and

2 therefore avoid such punishment. This poses little problem where what the law forbids is the criminal act, because all the individual has to do is to abstain from engaging in such criminal acts in order to avoid sanction. There may arise a dilemma, however, where what is punished is an omission to do a certain act. Omission is the failure to perform an act that is mandated by law. There are instances where the omission to do an act may clearly be identified as a violation of law because it thwarts the intention of the law for the performance of a duty. These are the instances when the duty to be performed is clearly defined in the letter of the law, and no controversy exists as to the obligation of the individual to perform the act. Omission therefore is a violation of the law, for which a penalty may be imposed. There are some omissions, however, that are attached to duties which are implicit upon the individual. These are omissions of duties the individual is deemed to have in relation to the welfare of other persons to whom he may have voluntarily committed to perform the duty, or to whom the law presumes he has a duty of care. It is in the uncertain nature of such duties that the controversy about their omission arises. When a person is merely presumed by the law to have a duty to render in favour of another, where the individual is not even aware of the duty, or may not have consented to it, there is much debate about the fairness in imposing a penalty upon its omission. The injustice arises out of the lack of prior notice, or of a seeming transgression upon the right of the individual to freely enter into an obligation upon his discretion and according to his will, without being imposed upon unnecessarily by the state. The nature of some of the omissions that have been recognised in jurisprudence are of this latter type. This study therefore undertakes to examine the philosophical and practical considerations of omissions as a source of criminal liability, and to what extent, if ever, such liability may be

3 imposed in such omission. The study shall take into account the theory and case law pertinent to the UK criminal law system.

1.2 Problem Statement: The problem that this study shall seek to resolve is: Should omission be penalised, and if so, in which circumstances should it be penalised? The topic chosen for discussion is considered highly significant because in the continuing development of law, debates have arisen as to the propriety and fairness of pronouncements by the court that appear to violate individuals fundamental rights. The debate on criminal liability attaching to omissions is one such area of legal development. The study is therefore timely in this sense, as the question of liability due to omissions has begun to likewise permeate the arena of international law.

1.3 Objectives In order to arrive at a proper conclusion to the above stated problem, the following objectives are intended to be met: 1.3.1 To define and describe the nature of omissions, and the requisites for liability to attach to them; 1.3.2 1.3.3 To identify the types and sources of duty the omission of which gives rise to liability; To distinguish among various types of duties and/or omissions, in order to discern attributes which may form the basis for determining whether liability should attach to the type of omission or not.

4 1.4 Methodology The study employs the qualitative method of research which is appropriate to most legal and philosophical studies. A search of documents and records of past cases shall be combined with information gathered from articles in academic and professional journals on criminal law and its application, within the context of UK law. Theory shall be referred to books and essays of authors of note in the field of legal philosophy in English law. The logical-recursive-iterative method of qualitative data analysis (QAD) is employed in the analysis of the data gathered.

2. THEORY OF OMISSIONS IN CRIMINAL LAW A closer examination of the nature of omissions is necessary to shed light on the merits and pitfalls of imposing penalties on it, and to distinguish it from the positive criminal act.

2.1 Elements of a crime A crime is generally defined, for the purposes of analysis, by its two essential elements: first, the actus reus, which is comprised of the prohibited act, omission, consequence or state-ofaffairs; and second, the mens rea, which refers to any element that assigns fault to the accused, including intent or recklessness. The actus reus has also been described as the external manifestation of the offence, and contemplates everything about the crime except the internal mental state of the accused.1 For most criminal offences, the actus reus is comprised of a positive act the accused is alleged to have carried out, and upon which liability is imposed. Ordinarily there can be no liability that may attach when the accused has not done anything. There is, however, a different significance attached to the fact that the accused has not done anything when he was expected to, or even counted upon to, do something. Omission of an act, in certain cases, comprises the actus reus that give rise to criminal liability.

2.2 Definition of omission Omission, in criminal law, is a failure to act. Simply stated, it means not doing (or omitting) to do an act when one is obligated by law to do it. Ordinarily, a crime involves doing an act; not doing anything does not ordinarily cause any liability for the individual. However,
1

Smith, J.C. & Hogan, Brian. Criminal Law, 10th ed., Oxford University Press, p. 30

6 when there is a duty to perform some positive act, the failure to fulfil this obligation is what constitutes an omission within the contemplation of criminal law. The obligation to act arises because of the status of one person to the other, such as a parent or guardian to a minor child2, or a physician to his patient.3 The obligation also may materialise because of an earlier act or conduct of the person, such as committing to or accepting to take care of that other person,4 or because such action created a risk of harm for another.5 Humanitarian international law6 has likewise created several specific duties

2.3 Distinguishing acts from omissions There are some offences which, by their nature, may only be committed as positive acts, and not as omissions. Examples are acting to prevent the apprehension of an offender,7 assault and battery,8 and similar offences. There is also a confusing category of offenses that, while they are omissions to perform certain acts, are themselves construed as acts. For instance, the failure of a landlord to replace his tenants lost key could be viewed as a positive act of harassment against a tenant.9 Such cases would be best approached by evidencing a set of incidents or events instead of just that single event, in order to show a state of mind or a habitual act where the mens rea becomes apparent. In that case, the omission would be interpreted as an act i.e., the actus reus, for which the mens rea is appreciated.

2 3 4 5 6 7 8 9

Ashworth, A, The Scope of Criminal Liability for Omissions (1989) 105 Law Quarterly Review 424 at 424 R v Instan, [1893] 1QB 450 Airedale National Health Service Trust v Bland [1993] a All ER 821 R v Stone & Dobinson, [1987] QB 354. R v Miller [1983] 2 AC 161 Contrary to the Criminal Law Act 1967, s. 4 Fagan v Metropolitan Police Commissioner [1969] 1 QB 439 Yuthiwattana (1984) 80 Cr App R 55

7 The distinction between acts and omissions is confusing, as shown in the example above of the landlords omission to provide a tenants key. The crucial distinction, it seems, is the presence (or absence) of a reasonable expectation that a person will behave a certain way because of the circumstances. A case is usually cited that illustrates the difference between act and omission. In Fagan v Metropolitan Police Commissioner,10 the defendant was asked by a police officer to draw his vehicle up to the kerb. In the course of doing so, the defendant halted his car with one wheel on the foot of the officer. When asked to immediately move the car off the police officers foot, the defendant was noticeably slow in restarting his cars engine, and appeared to take his time in moving the vehicle off the distressed constables foot. Because of his intentionally delayed response, the defendant was held guilty of omission to move the care immediately, amounting to an assault on the officer. The ruling apparently took the initial positive act that of the driver pulling his vehicle onto the foot as unintentional, otherwise it is this act that would have been cited as constituting an assault, and not the omission to move the car quickly off the foot.

2.4 Omissions as a source of liability Mead points out the necessity of determining the causal status of omissions.11 This refers to the causal connection between what is deemed an omission and the harm or injury it is supposed to have caused. The reason that the causal status is so important is that it goes to the core of criminal liability. A person should not be held responsible for something he did not do (or, likewise, something he did) if it did not redound, whether wholly or partly, to the harm or endangerment of another.
10 11

Fagan v Metropolitan Police Commissioner [1969] 1 QB 439, [1968] 3 All ER 442, [ 1968] 3 WLR 1120, DC Mead, Geoffrey Contracting into Crime: A Theory of Criminal Omissions Oxford Journal of Legal Studies, Jul 1, 1991, Vol. 11, Issue 2 , p. 149, citing Jonathan Bennet, John Harris, P.J Fitzgerald, Douglas N. Husak, and others.

8 The problem with omissions is creating the connection between the failure of a person to act, and the eventual harm. Omission is simply not acting, meaning that there is already set into motion a chain of events, without the participation nor fault of the offender held guilty of omission, that would produce the end result of harm or endangerment. Whether the actor (or non-actor) is there or not, the inevitable consequence will happen, which means that the nonactor did not cause it. The so-called causal status between the omission and the harm is thus outside of the usual paradigm of the actor intervening to cause the result.12 Critics of this line of reasoning observe that it is limited to a particular conduct and sequence of events. The search for a cause of an occurrence is limited to seeking an explanation for why something happens. The reasoning traces the effect to the cause in an unbroken line of logic to the initial cause. However, observers believe that this inquiry is nearsighted and unrealistic. In most cases, the supposed cause is not the only determinative event; for instance, Leavens explains that in the case of a child drowning, the logical cause is that the child went swimming. But it is likely true that the child may have gone swimming many times before, without drowning. It is also possible that the child may have gone swimming and had been distressed, but was assisted by a life guard before any serious harm had happened. Therefore, in the instance that the child had actually drowned, the absence or inaction of a life guard may have been an intermediate cause, or even the logical cause in the normal course of events, because the presence of a life guard or his action in the execution of his duties is normally expected in this situation.13 In such an occurrence, it is more normal for people to attribute the drowning to the absence or inaction of the life guard rather than the fact that the child went swimming. Thus, the cause of harm is not only attributed to the positive act that had set in motion the course of events,

12 13

Leavens, Arthur. A Causation Approach to Liability for Omissions, (1930), 30 Philosophical Quarterly 1. Ibid., p. 150

9 but also to the omission of an act that is reasonably expected to avert the likely harm or risk before it could come to pass. Given that omissions may be the cause of harm, the next difficulty is determining which omissions may be the source of liability. The fact that omissions means not doing, then the absence of any act may lead to an arbitrary assignment of liability if there are no guiding precepts by which a person may be pre-warned of the likelihood of liability. As earlier mentioned, the first attribute appears to be that the action should be reasonably expected that is, given the likelihood of the impending harm, that the expected action from the designated actor should be actually relied upon as a regularity, and the omission of that action by the actor is in breach of the regular expectation. It is the deviance from the pattern of regular performance and the attribution of blame to that departure that would lead the ordinary person to ordinarily conclude that the failure to act caused the risk or harm.14 Going one step further, the act or performance that was relied upon but which was departed from should constitute a duty upon the person who was expected to have performed the act. As nearly all jurisprudence states, there must be a duty to act and a duty of care that must be attendant upon omissions for which the individual may be held criminally liable. This is evident in the example given, that the person who may be held liable for the drowning child is the life guard. It may be possible that other good swimmers may have been in the immediate area, and that their failure to rescue the drowning child resulted in the latters death. While an omission did occur in the ordinary sense, such an omission is not open to criminal liability because such persons did not have the duty to act to save the drowning child. They had no duty to vigilantly oversee the situation at the swimming area to search for persons in possible peril. Because the duty did not exist, such persons may not be held liable for the drowning.
14

Leavens, op cit., p. 150.

10 It is therefore necessary, in the study of omissions, to determine what statute and jurisprudence have identified as sources of duties the fulfilment of which is mandated by law.

11

3. SOURCES OF DUTY AS BASIS OF OMISSIONS

3.1 Liability for omissions under the common law The common law rule on liability arising from the inaction of a person is that no liability attaches if an individual fails to perform a general legal duty on behalf of another in a dangerous situation.15 Even police forces, for lack of legal status as an organisational or corporate body, was generally immune from prosecution in the case of involuntary manslaughter prior to the CMCHA. The essential elements of involuntary manslaughter by breach of duty includes: (1) proof of the existence of the duty; (2) breach of that duty causing death; and (3) gross negligence which the jury considered justified a criminal conviction.16 Criminal law turns on the established principle that liability for an omission shall be incurred only where a duty to act exists. Different theories have been proposed in trying to determine what situations, in particular, constitute a duty to act. Jurisprudence has specified that there is a duty to act where a close family relationship exists,17 where there is voluntary assumption of responsibility,18 and where a dangerous situation is created by the individual who incurs the liability.

15

16 17 18

Stewart, M J How Making the Failure to Assist Illegal Fails to Assist: An Observation of Expanding Criminal Omission Liability. Journal of Criminal Law, Spring 98, Vol. 25 Issue 2, p385 R v Adomako, (1994) HL R v Lowe, (1973) QB 702 R v Stone & Dobinson (1977) QB 354

12 3.2 Statutes that impose a duty to act Several regulatory statutes, as well as other provisions of law, impose specific duties on certain individuals that obligate them to act in a certain way, and specifically state that if such acts are not complied with, then the individual who fails to comply will be held criminally liable for his or her failure to act. For instance, the Companies Act 1985 and the Value Added Tax Act 1994 require a business owner to perform certain acts particularly with regard to reporting and disclosure requirements and payment of duties of his business. Another example would be road traffic laws that require motorists who are involved in road accidents to stop, otherwise they would be designated as hit-and-run offenders; also, the failure to provide a breath sample when asked to do so would also incur liability for the offender. Likewise, if an organisation does not comply with its duties to observe the statutory health and safety regulations, then the officers of that organisation may be held criminally liable.19 In this type of omission, the duty to act is created by a provision of law, the actus reus of which is also defined in the failure to comply with it. This type of omission has the advantage of being clearly identified and described, and the scope of the compliance delimited. A person is therefore certain where he or she transgresses the statute, since the scope of the duty will also be clarified.20

3.3 Failure to prevent or report criminal conduct Since the offence of misprision of felony was abolished in 1967, it is not now an offence for an individual not to report crimes committed by other persons. However, misprision of
19

20

Institute of Leadership and Management. Managing Lawfully Health, Safety and Environment Super Series, 4th edition. Oxford: Elsevier Science (2003), at p. 3. University of London, Chapter 4, Actus Reus: Omissions. University of London External Programme. Accessed 10 May 2011 from http://www.londoninternational.ac.uk/current_students/programme_resources/laws/ subject_guides/crim_law/criminal_ch4.pdf

13 treason is still in effect, and under it a person who fails to report an act of treason may himself be held criminally liable. Furthermore, it is also a common law offence to refuse assistance to a constable who calls for it, in seeking to resolve a breach of the peace. More recent laws have likewise made it an offence to fail to disclose: personal knowledge about terrorist activities or funding for them, or knowledge or suspicion of money laundering.

3.4 Duty arising from special relationships It is possible for the law to impose obligations upon persons who have a special relationship with one another and who therefore, socially and morally, have a duty of care to them because of that relationship, in specific situations. Three relationships shown here are those of a parent or guardian to a child in his or her care; an individual towards other persons by virtue of his public, contractual, or official duties; and an individual towards a person unable to care for himself or herself, to whom the individual has voluntarily committed to assist or care for.

3.4.1 Care of children and other dependents A parent or other person over 16 years old who is responsible for a child under 16 may be held liable for any act that may be tantamount to be wilful neglect of that child, in such a way that the child suffers unnecessary suffering or injury to his health.21 Included in such care for the child are the provision of adequate food, clothing and medical care, but are not limited to these acts. Where such wilful neglect results on the death of the child, the offender may be prosecuted for manslaughter by gross negligence; the fact that death occurred as a result of neglect does not, however, lead to a charge of manslaughter, but that such may happen because of evidence of

21

Child and Young Persons Act 1933 ,section 1.

14 intent to harm the child be means of such neglect. It is also possible for a parent who deliberately starves a child to death to be liable for murder.22 It should be noted that the obligation to care for children and other dependents is mandated under the Child and Young Persons Act 1933 (CYPA). The statute covers only children below 16 years of age, however, and not older offspring. Thus, an 18-year-old, perfectly healthy, daughter is considered of age and is entirely emancipated, and her parents are under no special duty of care for her, to the point that they may incur criminal liability if they neglect her fundamental needs. However, the common law recognises that special duty of care may arise in the concept of family relationships where the emancipated person lived with another as husband and wife, or where the child who is above 18 years old still lives with his parents as dependent, due to studies or similar reason, for which purpose a duty of care still exists between related persons even as adults.23 The application of the law in the case of children was brought into sharp public focus by the case of Baby P. The baby boy was born on March 2006, and died seventeen months later due to injuries sustained over a period of time. The body of the child was covered in bruises and scabs; he sustained eight broken ribs, a broken back, a finger missing its top. There is no doubt that during the entire seventeen months that the child lived, he was subjected to constant abuse and neglect, both by his mother and her live-in lovers who had histories of cruelty and child abuse. However, the negligence in this case had also been with the professionals who had been seeing the child and monitoring his condition through the months prior to his death, and may be held culpable, pending the results of investigation.24 These professionals are discussed in the next section under failure to discharge ones contractual, public and official duties.
22 23 24

R v Gibbins & Proctor, 13 Cr App R 134 [1918]. R v Chattaway 17 Cr App R 7 [1922] Fresco, Adam After 17 months of unimaginable cruelty, Baby P finally succumbed. The Times, November 12, 2008. Accessed 10 May 2011 from http://www.timesonline.co.uk/tol/news/uk/crime/article5140511.ece

15

3.4.2 Contractual, public or official duties Liability may arise by virtue of a persons official duties, his contractual relationships and the obligations thereof, or by reason of the responsibility to fulfil a public duty. In R v Adomako (1994) HL, D was an anaesthesiologist in charge during an eye operation. D failed to observe that a tube inserted into the mouth of the patient V had become detached from the ventilator. As a result, V suffered a cardiac arrest, and subsequently died. The court held that D was guilty of manslaughter by gross negligence, reasoning that D owed V a duty of care which was breached, causing Vs death and thereby amounting to gross negligence. According to Lord McKay LC, gross negligence was dependent on: the seriousness of the breach of the duty committed by the defendant in all the circumstances in which he as placed when it occurred and whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in the jurys judgment to a criminal act or omission.25 In the preceding section, the sad case of Baby P was discussed, mentioning that culpability may not lie solely with the mother or her live-in lovers, but also with the professionals who attended to the child. Because such professionals were in a position to know the long-term abuse of the child, but failed to act with the level or responsibility or duty attached to their position, profession, or contract, they may, pending the conclusion of proceedings, be held criminally liable for their omission to observe the duty of care they were obligated to comply with.

25

R v Adomako, (1994) HL

16 These professionals included Sabah al-Zayyat, the consultant paediatrician who saw Baby P alive, two days prior to his death. During the consultation, Al-Zayyat failed to detect the broken back and eight broken ribs already sustained by the child. The record showed that the examination could not be completed because the baby was miserable and cranky, and that Dr. Al-Zayyat thought the baby had a cold.26 Another professional was Maria Ward, the social worker assigned to the case of Baby P on 2 February 2007. Ward visited the child for the first time 20 days later. She spotted bruising on the babys face, which the mother explained was due to a squabble with an older child; she relied on assurances by the mother that she was back on track and for the child to be taken off the at-risk register. Ward visited Baby P four days before his death; she found the child sitting in his pushchair with chocolate covering his fact and hands, purportedly to cover up the bruises. Ward felt content to leave the child with his mother because she seemed co-operative and properly supported.27 Paulette Thomas, who reported no concerns, was the health visitor charged with Baby Ps case, but who visited the boy only four times in six months since the mother cancelled four appointments. Finally, Gilly Christou, team manager at Haringey Social Services, reported five months before his death that the child appears to have a high pain thresholdIt is concerning that he does not seem to react to danger or pain. Only his mother can stop him, he does not seem to stop himself.28 These professionals, trained in their specialised fields, are presumed to have the competence to easily detect that the child had been suffering unimaginable abuse and neglect, and on the basis of themselves omitting to exercise that due care in the discharge of their duties, may conceivably held accountable for the death of the child. Furthermore, the public outrage
26 27 28

Ibid. Ibid. Fresco, op cit.

17 that followed this case was indicative of the widespread perception of societys duty to protect the vulnerable and therefore bringing all those professionals empowered by society to account for their omission.29 There have been concerns aired by the social care practitioners concerning the increasingly harsh consequences that may be meted out due to errors in professional judgment. Society is becoming progressively risk-averse, not just from the point of view of the patients and care recipients, but particularly from that of the care providers. The result is the exercise of excessive caution due to the perceived need to play safe; this sometimes redounds to the denial of independence to and the exercise of discretion by the care recipients, to the deterioration of the quality of life. Thus, the passage into law of the Corporate Manslaughter and Corporate Homicide Act 2007 was greeted with particular concern by care professionals. Prior to the CMCHA, guilt attaches only if it may be proven that senior managers are grossly negligent in their individual capacities. Under this scheme, as of 2005 only five such cases have ended in convictions (Community Care, 2005). On the other hand, CMCHA compels investigators to look more intensely at the organisations work practices as mandated by senior management.

3.4.3 Voluntary assumption of care for another A person who voluntarily makes a commitment to care for another who is otherwise unable to care for himself or herself because of old age, illness or infirmity, incurs for himself a duty to fulfil that commitment, while the person is unable to take care of himself, or until that

29

Elliott, Catherine. Liability for Manslaughter by Omission: Don't Let the Baby Drown! Journal of Criminal Law, Apr 2010, Vol. 74 Issue 2, p163-179; DOI: 10.1350/jcla.2010.74.2.627

18 responsibility is passed on to another. It should be noted that this type of duty is not protected by legislation such as CYPA 1933 where the person in need of care is above 16 years of age. The existence of a duty of care is also appreciated where there is a voluntary assumption of responsibility. This was the case of R v Stone & Dobinson, where accused Stone and Dobinson allowed Stones sister, Fanny, to live in their home. Fanny was known to them to be anorexic and unstable. Although she initially was able to attend to her needs, her condition gradually deteriorated to the point where she became bed-ridden. When it was apparent that she was in dire need of medical attention, they failed to call for or provide medical assistance. The sister eventually died as a direct consequence, in a condition of squalor and filth, her body full of bed sores. The court held that both accused were guilty of manslaughter by gross negligence, because of the duty of care they assumed when they accepted Fanny into their home. The fact of the relationship between Fanny and her sister, defendant Stone, was merely incidental. In such a case, Geoffrey Lane LJ elaborated on the standard that must be met for manslaughter by gross negligence to apply: The duty which the defendant has undertaken is a duty of caring for the health and welfare of the infirm person. What the prosecution have to provide is a breach of that duty in such circumstances that the jury feel convinced that the defendants conduct can properly be described as reckless, that is to say a reckless disregard of danger to the health and welfare of the infirm person. Mere inadvertence is not enoughThe defendant must be proved to have been indifferent to an obvious risk of injury to health, or actually to have foreseen the risk but to have determined nevertheless to run it.30

30

R v Stone & Dobinson (1977) CA

19 Throughout the years, however, the courts have been uncertain in categorizing those types of voluntary relationships or commitments that places the commitment under the classification of duty.31 There do appear to be three qualifications that guide judgements in these cases: the awareness of the defendant that the victim is in a dangerous situation; the defendant is apparently more capable and has a greater moral commitment than that of a third party; and there are no other people involved in the care of the victim, indicating that the victim is solely dependent upon the defendant for his care and welfare.32 In the Smith and Dobinson case, the two accused were held responsible for the victim who lived in their house. Ownership of the residence, however, does not qualify the duty of care. In R v Instan33 the accused D was living with her aunt who was originally capable of caring for herself. However, the aunt eventually became ill and physically incapacitated due to gangrene in her leg. Eventually, she became unable to feed herself or even call for help; however, D neglected her, did not feed her nor summon medical help, even as D remained in her aunts house and eat her aunts food. The aunt eventually died of neglect, and her niece D was held liable for manslaughter due to omission to exercise the requisite duty of care. In this case, the liability proceeded not from the fact of their blood relationship, but because D, by voluntarily staying in her aunts home and partaking of her food and resources, was implied to have committed to look after her aunts welfare even as she benefited from her aunts bounty.

3.5 Duty to avert a danger that was created by defendant Where a person who, by his own acts or fault, is responsible for the emergence of a dangerous situation, a duty to undertake reasonable measures to mitigate or eliminate the danger
31 32

33

Ormerod, David. Smith and Hogan: Criminal Law. Oxford University Press. (2005) ISBN 0406977305. Mead, Geoffrey Contracting into Crime: A Theory of Criminal Omissions Oxford Journal of Legal Studies, Jul 1, 1991, Vol. 11, Issue 2 R v Instan, 1 QB 450 [1893]

20 may arise on his part. Failure to perform such steps to alleviate the danger may be tantamount to gross negligence and give rise to criminal liability. In R v Miller,34 Miller was a homeless person who had been smoking a cigarette when he fell asleep on a mattress in a house. Upon waking and finding the mattress smouldering, instead of trying to douse the fire or calling for help, he instead moved to a different room. Eventually, the fire flared up and spread, thereby causing damage estimated at 800.35 Miller was tried and convicted for arson,36 not because he intentionally started the fire, but because he failed to take any step to stop it or prevent it from becoming worse. On appeal, Miller reiterated his defense that there was an absence of actus reus coincident with mens rea. In the decision issued by the House of Lords on appeal, the ratio decidendi explained by Lord Diplock was doctrinal: I see no rational ground for excluding from conduct capable of giving rise to criminal liability, conduct which consists of failing to take measures that lie within one's power to counteract a danger that one has oneself created, if at the time of such conduct one's state of mind is such as constitutes a necessary ingredient of the offence.37 This was the first articulation of what eventually came to called the principle of supervening fault, that a persons actions should give rise to a danger from which a duty to act proceeds in order to mitigate or eradicate the danger, and that failing this, the person becomes liable. This ruling established that actus reus did not solely mean positive action, but referred to the set of events that transpired from the moment the fire began, until the reckless refusal of the accused to extinguish the flames, leading to damage and injury. The starting of the fire and the
34 35 36 37

R v Miller, 2 AC 161 [1983] R v Miller, [1982] UKHL 6 at para. 162 Criminal Damage Act 1971, sections 1 & 3. [1982] UKHL 6 at para. 176

21 reckless refusal constituted the actus reus and the mens rea of the crime of omission. The ruling therefore clarified that a duty to act may be created by ones own actions, and omission to perform this duty cannot be blameless. In another case, the defendant was convicted of assault occasioning actual bodily harm38 when, because said defendant failed to inform a police officer of the presence of a sharp object (i.e., a needle) on his person, resulting in the officer pricking and hurting himself on the needle.39 Finally, in R v Khan,40 the Miller principle was applied by the Court of Appeal to the context of manslaughter. Appellants provided the victim with heroin on which she inadvertently overdosed. The appellants abandoned the victim, who thereafter died as a result of the overdose. In this ruling, the appellate court that the trial judge should have determined, first and foremost, if evidence existed upon which the jury may decide the existence, or absence, of a duty of care. Having decided that a duty of care did exist, the next step would have been for the jury to find out if the defendants had committed a breach of that duty of care.

3.6 Failure to provide medical treatment An obligation to extend medical treatment to patients or other persons in need forms part of the accountability of doctors and hospital authorities, omission of which may well lead to criminal liability. In this matter, however, there are three special circumstances that qualify whether or not the doctor and the hospital would be incurring liability. These situations include refusal by the patient to consent to treatment; withholding treatment in the best interest of the patient; and practical and financial considerations.41
38 39

40 41

Under the Offences against the Person Act 1861 Director of Publi Prosecutions v Santa-Bermudez, EWHC 2908 [2003] (Admin). Accessed 10 May 2011 from http://www.bailii.org/ew/cases/EWHC/Admin/2003/2908.html R v Khan, Crim LR 830 [1998] Oxford University Publishing (OUP). Chap.1 Actus Reus: The external elements of an offence. Accessed 10 May 2011 from http://www.oup.com/uk/booksites/content/0199275297/chap_1

22

3.6.1 Situation 1: Refusal by the patient to consent to treatment. While ordinarily doctors and hospitals are under obligation to provide medical assistance to patients under threat of criminal liability, there are instances when the patient refuses to provide his consent to the medical procedure or assistance being offered by the doctor or the hospital. In such cases, the doctor or hospital may not be held responsible for the omission of care deemed necessary for the patient. Oftentimes, the opposite that is, carrying out the medical procedure despite the patients refusal, is itself the source of criminal liability. In one such case, patient C, who is also paranoid schizophrenic, had been admitted to a secure hospital under the Mental Health Act 1983, Part III. The doctors had recommended that his gangrenous foot be amputated because it is a threat to his life. Patient C then filed an action seeking the court for an injunction to prevent the amputation of his foot without his written consent. In this case, the judge appreciated that although schizophrenic, the patient did have the capacity to manage his affairs, and was capable of understanding his condition. The judge expressed satisfaction that the respondents failed to prove that the patient did not understand the nature, purpose, and effect of the treatment proposed. The presumption is therefore in the patients favour, and that despite his schizophrenia he did understand and has made a clear choice on the basis of that understanding. 42 In this case, the doctors and the hospital are precluded from imposing upon him the medical treatment he refuses to consent to. There are also, however, exceptions to the exception to the general rule. There are instances when the refusal of the patient to give his consent is pivotal in the decision. For instance, in the case of minors where parents have refused the application of medical treatment, the High Court has the discretion to make use of its wardship jurisdiction to supersede the
42

Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290

23 parents refusal,43 or the refusal of the minor patient himself.44 Sometimes the court may likewise override the refusal of an adult patient refusing treatment where it deems that the adult patient is lacking in capacity or is being unduly influenced;45 in such cases, the doctors must not be remiss in providing the treatment, for to argue that the patient does not give his consent would contradict the pronouncement of the court.

3.6.2 Situation 2: Withholding treatment in the best interest of the patient While it is often the case that the doctor or hospital would recommend the treatment of procedure and the patient would refuse to give consent, there are also instances when the reverse occurs where the patient, or more often the minor patients parents, would insist on the performance of a medical procedure or treatment that the doctors or hospital would refuse to do or give, on the ground that such treatment would not be in the best interest of the patient. In Re Wyatt,46 Charlotte Wyatt was a premature baby with a birth weight of only one pound, who needed to be ventilated during her first three months of life. She fought off infection while her breathing and brain functions steadily deteriorated until the damage to her body was deemed irreparable. She appeared to be deaf, blind, and incapable of voluntary movement. The doctors and parents agreed that her chance of survival were not good; however, their point of disagreement was whether or not Charlotte should once more be artificially ventilated if she stopped breathing. The doctors took the position that she should no longer be ventilated artificially, as such would not be in her best interest, since the intubation procedure involved was distressful and
43 44 45 46

Re B (A Minor) (Wardship: Medical Treatment) [1981] 1 WLR 1421 Re W (A Minor) (Medical Treatment: Courts Jurisdiction) [1993] Fam 64 Re T (Adult: Refusal of Treatment) [1993] Fam 95 Re Wyatt (A Child) (Medical Treatment: Parents Consent), Hedley J. [2004] E.W.H.C. 2247; [2005] All E.R. (D) 294: [2005] E.W.H.C. 693 (Fam.)

24 painful to the patient, and it is expected that prolonging Charlottes life in this manner was pointless. On the other hand, Charlottes parents, devout Christians, hoped for a miracle, and therefore insisted that Charlottes life should be prolonged as far as possible. The court sided with the paediatric team in deciding against artificial ventilation for the child, as such would be against her best interest. In cases such as these, therefore, the omission to perform ones duty of care in the traditional sense, where such could be construed as against the best interests of the patient, does not fall under category of criminal omissions. In another case, it was observed that the best interest of the patient did not necessarily redound to his being kept alive at all costs. Lord Goff penned an instructional distinction between acts and omissions in the context of the patients best interest. He drew the line between the cases where a doctor decides not to provide treatment to prolong life, and where the doctor administers a lethal drug to actively cause the death of the patient. Where a doctor omits to provide care, the omission may be lawful where such was the wish of the patient, or even where the patient is incapacitated to give or withhold consent. Where the doctor actively ends his patients life, such act is never lawful though the doctor is motivated by humanitarian ideals to end suffering.47 In omission, therefore, there is at least a possibility of legitimacy, which is completely absent in the positive act. The types of controversies under this situation are numerous. The question may likewise arise in the case of those individuals advanced in age to the point of being incapacitated, or those babies born severely handicapped either mentally or physically, where major or even repetitive surgery may be necessary to prolong life.48

47 48

Airedale National Health Service Trust v Bland [1993] AC 789, p. 865 Re J [1991] 2 WLR 140

25 3.6.3 Situation 3: Practical and financial considerations The third situation in the matter of omission of medical care has to do with practical matters and the cost of medical care involved. Apart from the consideration as to whether treatment would be in the best interest of the patient, there is the need to determine the possible financial burden and the manpower limitations. It is simply not practical, from the point of view of available resources, that all persons whose lives may be prolonged by major surgery or intensive (and invasive) cutting-edge medical procedures will receive it. For many, the cost would not be worth the additional years if such would only prolong life marginally.49

49

Ormerod, David. Smith and Hogan: Criminal Law. Oxford University Press. (2005) ISBN 0406977305

26

4. TYPES OF SOURCES OF DUTIES

The foregoing discussion delved into the sources of duties to act and the extent to which their omission should be the cause of criminal liability. Mead50 categorizes the sources of duty under three types: undertaking, knowledge of incurring of liability, and justifications unconnected with voluntariness.

4.1 First type: voluntary assumption of a duty. The voluntary assumption by a person to do something is seen as a positive justification for duty to exist.51 In this case, the person who promises to perform an undertaking is of such state of mind that the duty is created by positive justification, by the volition of the actor. The promise the actor makes in the voluntary assumption of the undertaking is what creates the bond that obligates the promisor to the performance of the act. Mead believes, however, that the voluntariness of the undertaking as a source of duty should transcend the mere contractual performance of an undertaking that a promise entails. The undertaking should be seen from the point of view as the best position perspective, that the promisor undertook the commitment because he or she was in the best position to perform the act. The Best Position argument is grounded on three reasons.52 First reason is that the promisor will most likely be the person who is in the best position to know the peril, for which a person will be in need of assistance. He may understand the ways a person may be vulnerable to such dangers, in a manner other people may not be aware of. Second is that the promisor may in
50 51 52

Mead, op cit., pp. 167-171 Raz, J. Promises in Morality and Law, (1982) 95 Harvard Law Review 916, p. 930. Mead, op cit.

27 most likelihood be the most capable person to perform the act, or at least he or she would be better able than a third party to competently discharge the duty. This proceeds from the normal presumption that when a person volunteers to do a particular thing, he feels himself equipped with the necessary skills and thus feels capable to perform the act. Thirdly, third persons who knew about the undertaking would think that they were not particularly helpful in its performance, and in many cases would justifiably feel that they may simply be in the way and most likely constitute a hindrance in the effective completion of the task. These three reasons enhance the undertaking as more than mere compliance of a contractual obligation.

4.2 Second type: voluntary performance of an act that incurs a duty. The second type of sources of duty is the voluntary performance of an act with the actors knowledge that by doing so, the actor incurs a duty. For instance, the act of Stone & Dobinson in allowing her (Stones) ill sister to live with them implies that they are assuming a duty to take care of the sister and to look after her welfare and needs. Some observers feel that there is an implicit assumption of a duty is insufficient, and that there must be a positive reason for the actor to be burdened with the duty, and a more objective and positive act by which the actor may convey his/her acceptance of the duty. The principal argument for this is to avoid a incurrence of a general liability for omission of duties that may have been imposed upon the actor without his knowledge, and for which the subsequent liability would be unjust for lack of notice. The concern is that the actor is not put in jeopardy without good reason. On the other hand, the best position argument that applies in the case of voluntary undertakings may be said to be relevant in the case of voluntary performance that incurs a duty. That is, when the actor performs a duty that presumes the incurrence of a duty means that (a) the

28 actor is the person most aware that his assistance is necessary; (b) he or she is the most capable to perform the duty; and (b) his presence will most probably discourage others from intervening because of the expectation that the actor is capable of acting by himself without help.53

4.3 Third type: justification without voluntariness The third and last type of the source of duty involves some justification which is not linked to the voluntariness of the undertaking. This pertains to instances when a person has not volunteered to perform a duty, nor did he perform any act that incurs such duty for him, and yet is considered to have a duty to act. This is the case that invites the greatest controversy among legal theorists, because it is the closest to a general liability and is open to the influence of arbitrary bases for attributing duty. In this justification, Mead cites the essay Ncessit Oblige by Tony Honor, where opinions are expressed that differ from that of others that a duty or obligation arises form the moral requirement that proceeds from the performance of a voluntary act.54 According to Honor, obligations can arise in ways other than through a voluntary act, such as the obligation to compensate for accidental harm for which one is at least partly responsible; obligations to compensate the aggrieved parties for wrongs done by family or associates; obligations to restore property transferred against ones will, and obligations of restitution in instances of non-voluntary enrichment. An obligation may also arise upon an individual who, despite his unwillingness, is bound by duty to perform if he is the best qualified person to perform the task, and there is a necessity for the performance of such task. The duty may be even seen in the nature of the act of a good Samaritan.

53 54

Mead, op cit., p. 169 Ibid., p. 170, citing Ncessit Oblige by Tony Honor, in Making Law Blind, 127 (Oxford, Clarendon Press, 1987)

29 This special type of duty is best understood in the case where individuals who are bound by familial relationships owe each other a duty of care even without any voluntary undertaking or act. The duties are also grounded in necessity. Most important of these relationships is that duty of care of a parent for his or her children, though the latter may be unwanted. This duty is created by the dependency of the child upon his or her parent for the provision of his or her needs. It is evident that such duties create a real burden upon the actor on whom the obligation is imposed because as with the case of children, there is normally, from the pragmatic view at least, no objective or material benefit that accrues to the parent for the duty of providing for the child. These are the bonds that emanate from purely social relationships not susceptible of the usual considerations that govern contractual relationships. The obligation to alleviate the harm or risk posed by the unintentional creation of danger is another such type of duty. The case of relationships as the basis of the incurrence of obligation could not be made to rely entirely on the best position argument that applies in the first two types of duties. Where a person voluntarily undertakes a duty or performs an act that knowingly incurs for him that duty, the person is aware that he is in the best position to perform the act and discharge the duty, and takes it upon himself to do so. In the case of relationships, the actor often is not aware that he has incurred or is incurring the duty. In fact, the duty is imposed at times even against the wishes of the actor. It is for this reason that many legal experts argue that duties of this type should not be imputed upon the individual, because it has the effect of penalising him for an omission that he did not know he was obligated to do in the first place. However, Honor makes much sense when he states that these cases only arise because there is a necessity, that if the obligation were not imposed then the situation will result in more

30 dire consequences to people who are among the most vulnerable in society. As Honor articulated it, in the last resort, necessity makes law: ncessit oblige.55

55

Honor, op cit., in Mead, p. 171.

31

5. SPECIAL ISSUES IN OMISSIONS

Aside from the general issues already discussed, special issues have been raised by a number of academic studies on the recent developments in the debate on omission as a source of criminal liability.

5.1 Corporate manslaughter by omission: Omissions by police officers due to failure to perform duty On 6 April 2008, the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA) took effect. Pursuant to this law, a relevant organisation may be found guilty of corporate manslaughter where the acts of senior management was an important factor in the failure of the organisation to perform its duty, leading to the death of an individual. For the purpose of this law, a relevant organisation is defined as: a corporation; a department or similar body listed in Sched.1 of the CMCHA; a police force; and a partnership or trade union or employers association that is an employer.56 An organisation qualified as relevant and which may be found guilty of corporate manslaughter shall be subject to a criminal law sanction in the form of an unlimited fine, which will be seldom less than 100,000, but may increase by hundreds of thousands of pounds or even more.57 Aside from the fine, the organisation convicted of the crime of corporate manslaughter may be imposed additional penalty in the form of a remedial order. This is a judicial order that is made upon application of the prosecution specifying the terms in the application. The court shall

56 57

CMCHA, s. 1(2) Sentencing Guidelines, published by the Sentencing Guidelines Council on 9 February 2010. Accessed 10 May 2011 from http://www.sentencing-guidelines.gov.uk.

32 then specify the terms as it sees fit, based on the representations by the prosecution and the evidence presented by both sides. The remedial order issued by the court shall specify steps to remedy those factors which caused the breach of duty that led to the death. In the remedial order shall be stated: the relevant breach, as mentioned in CMCHA, s. 1(1); any matter the court considers to result from the relevant breach and which appears to have caused the death; and any deficiency in the companys policies, systems or practices regarding health and safety, which the relevant breach appears to indicate. The convicted organisation should then take the steps specified in the order to remedy the causes of the breach of duty of which it had been guilty. Furthermore, the court may, at its discretion, order the convicted organisation to publicize the fact of its conviction, including the details of the offence, the amount of fine imposed, and the terms of the remedial order against the organisation.58 Among the organisations relevant for the purposes of this law, there is special interest in the case of the police force where omission of the requisite due care caused the death of an individual. While not all deaths related to police activity are controversial, there are a few that tend to be more controversial, and more frequently encountered, than others. Road traffic fatalities are an example, where the road mishap was the result of a police pursuit of persons. It often happens that the driver of the vehicle pursued loses control of his vehicle and is consequently killed, or where other persons are killed because of the high-speed pursuit. In this case, police neglect may come in the form of failure to turn on the siren or the blue warning light, as a consequence of which a pedestrian is killed. Another example would be police response to public order situations, such as crowd control during high-profile sports tournaments. A third type of situation involves fatal shootings by policemen, and lastly are deaths of persons

58

CMCHA, s. 10

33 held in police custody.59 Since these last two types are the more common types of criminal liability due to omission or neglect of duty, they shall be treated in greater detail.

5.1.1 Fatal shootings attributable to negligence. An example of a fatal shooting due to police negligence is that related to the investigation of the failed suicide bombings in London in July 2005. The police were conducting surveillance operations on the residence of suspected bomber Hussain Osman, when they followed a man whom they thought to be Osman, but was in reality Jean Charles de Menezes, a Brazilian legally residing in London and who had no connections to the bombings. At the Stockwell tube station, believing their suspect to carry explosives, the police units pinned him down and repeatedly shot him in the head. Despite the grave error made in identification, the Crown Prosecution Service ruled out murder or manslaughter charges against individual officers who participated in the shooting, due to insufficient evidence.60 However, there had been numerous incidences of neglect that had been noted in the conduct of the operations, regarding police communication, operations and actions taken. Because of this, the Metropolitan Police force was found guilty of breach of sections 3 and 33 of the Health and Safety at Work Act 1974,61 for failing to provide for the health, safety and welfare of Jean harles de Menezes on 22 July 2005I concluded that while a number of individuals had made errors in planning and communication, and the cumulative result was the tragic death of Mr. De Menezes, no individual had been culpable to the degree

59

60

61

Griffin, Stephen & Moran, Jon Accountability for Deaths Attributable to the Gross Negligent Act or Omission of a Police Force: The Impact of the Corporate Manslaughter and Corporate Homicide Act 2007. [Aug. 2010] 74(4) Journal of Criminal Law 358-381, at 363. CPS Statement: Charging decision on the fatal shooting of Jean Charles de Meneses. 17/07/2006. Acessed 10 May 2011 from http://www.cps.gov.uk/news/press_releases/146_06/ On the duties of care owed to non-employees.

34 necessary for a criminal offense.62 The penalty imposed on the police force was a fine of 175,000 with 385,000 legal costs.

5.1.2 Custodial deaths attributable to negligence. Ordinarily, cases where people die in police custody are surrounded with controversy because when a person is detained under process of law, he is usually presumed to be safe. The death of an individual, therefore, comes with the suspicion of the excessive and improper use of restraint or control, or poor monitoring of prisoners who are intoxicated or mentally disturbed.63 One case in 1998, that of the death of Christopher Alder, was particularly controversial because the findings of the Independent Police Complaints Commissions report attributed unwitting racism to the officers involved. Alder was 37, black, and died face down in a pool of blood in a police custody suite, while the four accused stood chatting nearby. The four officers were found to be guilty of the most serious neglect of duty.64

5.1.3 The common law application vs CMCHA The common law position which was implemented prior to the CMCHA held a police force outside the scope of the common law identification principle because it did not have a corporate status. The identification principles hold that a corporate body is personified by its directing mind65; ordinarily, however, the directing mind is embodied by its director/s. Thus, in the case of involuntary manslaughter, it becomes necessary to link the act of the individual employee through the chain of command to the directing mind. The problem is that management
62 63 64

65

CPS Statement, op cit. Griffin & Moran, op cit., p. 364 BBC News, Police condemned over mans death, 27 March 2006. Accessed 10 May 2011 from http://news.bbc.co.uk/2/hi/uk_news/england/humber/4848238.stm Lennards Carrying Co., Ltd. v Asiatic Petroleum Co., Ltd. [1915] AC 705.

35 structures are so complicated and orders disseminated so indirect that often, it is difficult to fix the criminal liability to the corporate director due to misinterpretation and abuse by lowerranking officers.66 Therefore, under the common law, the prosecution of a police force for manslaughter often fails to prosper, resulting in an injustice to the relatives of the fatality by police neglect. The creation and implementation of the CMCHA is expected to resolve these weaknesses in the common law application for the prosecution of manslaughter to a police force. It is also thought to constitute a measure of compliance with international law. It must be recalled that Article 2 of the European Convention on Human Rights (ECHR) obligates Member States to secure the right of persons to life,67 through the establishment of the necessary criminal legislation to preclude or at least deter the violation of human rights and the commission of offences against individuals. The ECHR also mandates that the provisions be supported by an effective system of enforcement effective meaning that it is capable of producing the desired effect, not normally open to technicalities that would impede justice in majority of the cases.68 However, under closer study, it is apparent that what the CMCHA puts in place is a system of proper examination, and falls short of the fulfilment of its obligation under Article 2, to establish a system of appropriate enforcement, this being only partially developed. Therefore the CMCHA is not sufficient to meet the requirements of Article 2 of the ECHR.69

66 67

68 69

Tesco Supermarket Ltd. v Nattrass [1972] AC 153, by analogy Bell, C & Keenan, J, Lost on the Way Home? The Right to Life in Northern Ireland (2005) 32 Journal of Law and Society, at 68. Joint Committee on Human Rights, Deaths in Custody, 3rd Report 2000-2005, vol. 1, HL 15-1/H 137-1, at 13-15. Griffin & Moran, op cit., at 361

36 5.2 Liability for omission in international criminal law Duttwiler70 explored the application of omission as a source of criminal liability in international law. This is a novel approach, since until the Nuremberg trials of post-World War II, individuals had not been deemed proper subjects of international law, only states and international organisations. The omission to do a deed is essentially a personal liability, pertaining to the actus reus and mens rea of an individual rather than a state. After World War II, however, there has been increasing development towards the regulation of acts of individuals in the international legal system. At the same time, human rights law and crimes against humanity have taken on a more robust application in international law, creating a venue for greater participation for individuals as either those seeking redress or those being brought to justice, through the International Court of Justice. Because of these developments, there has been increasing reliance on a particular principle as a source of liability for omission, which is the doctrine of superior responsibility. This concept stresses that a superior is responsible for the actions of his subordinates, such as in the case of military troops in a war or armed conflict. The superior is held to be responsible in those instances where he knew or should have known that crimes are being committed by persons under his de facto control, and despite this did not intervene in their actions, either to punish or prevent further continuation of these acts. Clearly, superior responsibility is an important, if not the most common, doctrine relied upon as a source of duty to act, and the omission of which persons may be held criminally liable under international criminal law. However, the doctrine has already been thoroughly developed and presents little controversy, that Duttwiler excluded its application in his study. What needed

70

Duttwiler, Michael.Liability for Omission in International Criminal Law. (Jan 2006), Vol. 6 Issue 1, p1-61; DOI: 10.1163/157181206777066745

37 to be determined was the existence of a general norm of liability for omission of duties that may exist in international criminal law. The study arrived at the conclusion that, while international law does admit of the application of omissions as a source of liability, the breadth, scope and incidences of such are not very substantial. After a wide scan of treaty provisions and agreements, the study arrived at only one such treaty provisions of more or less relative significance but of limited scope. Other than this, it determined that there is a general principle of law in art. 38(1)(c) ICJSt, which regards the human conduct of omission as action, presuming that a legal duty to act exists. While the legal principle exists in theory and statute, there is difficulty in the application because the determination of a legal duty to act must be analysed through a combined construction of international and domestic law. Under the Rome Statute of the ICC, despite the absence of case law on the matter, it is generally held that there are no limitations to the application of liability for omission should the proper case for it emerge. It is believed that there will be no difficulty for the ICC to apply the general treaty provision on omission, with regard to perpetrators from any jurisdiction, whether or not that particular jurisdiction recognises the principle of commission by omission. Largely, however, the application, should it materialise, will be largely from the basis of an ethical or moral point of view, because it is commonly perceived and acknowledged that the intentional failure to prevent harm is just as worthy of condemnation as the active form of criminal behaviour, which forms the theoretical foundation for holding a perpetrator liable for omission. A general principle of law that converts the ethical and moral principle into a provision (or provisions) of international law is seen to greatly enhance the stature and development of international criminal law, and is expected to be welcomed by the Member States.

38

6. ANALYSIS 6.1 The central debate on attaching liabilities to omissions The debate on the nature of omissions and the propriety of attaching criminal culpability to them has become so profound that it has wandered into the area of philosophical legal theory. One of the more perceptive and insightful comments came from Andrew Ashworth.71 In considering criminal law reform, the legislature is faced with the dilemma of the scope of duties for which an individual may be held liable in failing to perform them. Ashworth explains two conflicting schools of thought. One is the conventional view and the other is the social responsibility view. Far from being polar opposites, these views overlap and only differ as to their scope and extent. They are founded, however, on different theoretical premises. The conventional view holds forth the position that criminal law should avoid as much as possible to impose liability for omissions, save for the cases where the duty to act is most apparent and the consequences for omission the most severe. Admittedly, there are acts, and omissions, that society would recommend to be regulated by law and punished for culpability. There is likewise general acceptance of general duties that are expected of citizens and members of society, such as the payment of the correct amount of taxes and tariffs, which duties should be strengthened by offences for omission. While the duties towards the state, however, are clearly defined (as was earlier mentioned in omissions created by statute), the duties to other people are not as clear-cut and obvious. Supporters of the conventional view are described by Ashworth as being reluctant to assume responsibility of duty to those individuals other than have been explicitly and voluntarily assumed. The conventional view sees as unfair that people who have not agreed to be responsibility for another are forced to assume a duty towards such persons, against their will
71

Ashworth, Andrew. The Scope of Criminal Liability for Omissions (1989) 105 LQR 424

39 and at times without their knowledge, and are in danger of being punished if they omit to perform this duty. At times, because the duty itself is so vague and seemingly arbitrary, there is disagreement as to what constitutes omission for which liability is imposed. Seldom are such issues a matter of black and white; oftentimes they entail the weighing of circumstances and consequences, and in the end the fixing of culpability would often be based on social values than legal requisites. For the social responsibility view attention is focused on the co-operative elements that are encountered in society and are made incumbent upon individuals by virtue of the necessity to contribute to the collective welfare. The idea is generally acceptable to most people that there will be circumstances that would call for the obligation to help others, as in the case of disasters and natural calamities, accidents and other unforeseen events where the lives of people are endangered. However, it is a different matter to say that the failure to positively act on these obligations would incur for the individual some punishment as in the commission of a crime. There is a moral distinction understandable to the common individual that it is one thing to perform an act that leads to harmful consequences, and not performing an act which results in the same harmful consequences. Proponents of the social responsibility view, however, are open to the idea that at some level, and where the severity of the situation may call for it, there may be a need to impose criminal liability upon those who omit the performance of the duty to act, even where voluntary consent to do so has not been construed. Fundamentally, the difference between the two views is that conventionalists stress the minimalist condition that liability should be imposed on omissions of voluntarily assumed duties, while social responsibility advocates do not adhere to any limitation except that conveyed by reason and the circumstances. For the conventional view, the coercive power of criminal law

40 and punishment requires that the individual must have been given the benefit of notice that such a performance is required of him as an obligation, and that failure to perform this obligation will be meted a corresponding penalty. Under this theory, omissions are viewed as the exception rather than the rule, and there is a truly compelling need to be met such as the support of the state through taxes and preservation of its independence through compulsory disclosure of the knowledge of treacherous acts. Social responsibility, while not inconsistent with these views, would tend to tolerate omissions as more than exceptions, but as part and parcel of the legitimate exercise of coercive power of the state upon the individual. The conventional view is strongly supported by the arguments of Williams72, who adheres to the position that individual rights should be upheld and the intrusiveness of the law limited. The first assertion, according to Williams, is that societys most urgent task is the repression of active wrongdoing, with stress on active. The criminal process is not the instrument which society may use to encourage the slow to action or reclusive to a more active social role, and certainly not to the extent that failure to perform is punished. The second is that condemnation, and tolerance, for wrongful action is different from that of wrongful inaction. This is indicative of a moral distinction we subconsciously make between a positive wrongful deed and a passive wrongful omission, where both have the same eventual result, the positive act being deemed the more condemnable of the two. To illustrate, it is usually more morally despicable for a son to take a dagger and stab his father to death without provocation, than for a son to neglect to feed and care for his father until the latter eventually expires. Williams uses this as an argument that omissions should not be meted the same punishment (or even punished at all in the case of non-voluntary duties) as that imposed upon positive criminal acts.73 Williams

72 73

Williams, Glanville. Criminal Omissions The Conventional View (1991) 107 LQR 86 Ibid, p. 87

41 qualifies, however, and differentiates those omissions that clearly run contrary to the public interest, which are within the purview of the state to punish.74 While the theory about omissions appears sufficiently clarified, in practice there are cases which by their nature are still too difficult to call. In the case of the provision (or omission) of medical treatment where the patient or his guardian does not give his consent, it may be necessary for the doctor to make a judgment call where a medical emergency threatens the patients life. The time is often too short for the doctor to appeal to the courts, thus there is a need to decide whether or not to act without consent. This is with reference to R v Senior where the refusal of the childs parents, both Jehovahs Witnesses, to consent to a vital blood transfusion for their child and therefore leading to his death, was construed to be the doctors omission for which he and the parents were prosecuted for manslaughter.75

6.2 The Act-Omission Paradox When considering the difference between acts and omissions as sources of liabilities, it becomes necessary to more closely analyse the effects of a positive act and an omission. It is on the basis of this distinction that culpability that would justify the imposition of criminal penalty may be assessed in the case of omissions. The act-omission doctrine implies that a positive act is always culpable, while an omission may not be, where the results of both are the same. As illustration, it is never acceptable for one man to kill another without provocation, but where a person stands back and allows another to die, then that may be permissible. However, if one were to look at the omission as act, then the act of standing by and watching a person get killed is tantamount to

74 75

Williams, op cit. R v Senior [1899] 1 QB 283

42 permitting the death of this victim. The person who omits to act to prevent a killing allows the offence to take place; he does not kill the victim, but allows the victim to be killed, and in doing so condones the killing. This is not so far fetched where a person may initiate an action that, without directly causing a death, may eventually lead to a death. In such instances a paradox exists, that an offence is at once permissible and at the same time impermissible.76 This type of reasoning is the crux of the deontological doctrine AOD, or act-omission doctrine. Its cornerstone is deontological ethics, from the Greek root word deon, meaning obligation or duty, and logos meaning study. It is an approach to the study of ethics which views the morality of an act based on its relationship to duty. This train of thought posits that letting an offence take its course when one is capable of preventing or intervening is tantamount to forsaking ones duty to abide by what is ethical or right. In this sense, the duty referred to is the duty not to let an immoral act happen, not the legal sources of duty discussed earlier. Deontology closely relates the ethic of the act with the duty to abide by what is right or permissible. Therefore, an act that is impermissible but allowed to happen makes the act of allowing itself impermissible, because it is a betrayal of the duty to forbid an impermissible act. This philosophical reasoning goes into the core of the rightness or wrongness of an act (omission), and to an extent provides a perspective from which to view the culpability that may be attached to an omission. This school of thought views omissions as acts, that is, the act of allowing something to happen. If the act allowed to happen should not be permitted, then the omission constitutes a culpable act. The qualifications of this type of reasoning are obvious, though. Firstly, the person is aware that an impermissible act is about to happen. Second, he or

76

Persson, Ingmar. Two Act-Omission Paradoxes Proceedings of the Aristotelian Society. Apr 2004, Vol. 104 Issue 2, p147-162,

43 she is in a position to intervene in such a way as to possibly thwart or frustrate the act. Finally, it is the omission to intervene that allows the act to succeed. The presence of all of these three conditions shall allow for the omission to be seen as a culpable act, for which the individual may be held accountable or liable. The duty exists not by virtue of statute, contract, volition or relation, but is assumed as a duty of the moral person who abides simply by what is right. This is the only possible solution to avoid the act-omission paradox.

6.3 Summary The main, ongoing debate is whether or not it is appropriate for criminal liability to attach to omissions, and assuming it is, under which circumstances it should be done. The general concept is that omission is the absence of action, and since the absence of action could not give rise to harm that is not already inevitable, then the person who omits to intervene should not be penalized. The only instance, therefore, where such liability should attach is in the case of statutory duties the omission of which is clearly precluded by law. In these instances, which are in the nature of mala prohibita, compliance is mandated and the penalty is specified. These involve no controversial issues, it requires only straightforward compliance to avoid the consequences. In other types of omissions, it has been stated that it is necessary to identify the duty of care that is reasonably expected to be fulfilled, that the omission of the act that complies with the duty is not justified, and that the omission resulted in harm done to another. That there is a harm done and that the omission took place are matters of fact and may not be disputed. The point of controversy lies in the nature and source of the duty, and if the omission of that duty may be penalised according to the tenets of criminal law theory.

44 The study outlined the sources of duties, and the typology of these sources. The duties and their categories are presented in the following table: Source of duty Voluntary assumption of a duty Voluntary performance of an act that incurs a duty Justification without voluntariness Type of duty Duty to care for another by volition Contractual, public or official duties Duty to avert a danger created by defendant. Duty to provide medical treatment (and exempting circumstances) Duty arising from special relationships (e.g. to children and wards)

The classification into typology is based on the most common types of such duties, and do not constitute a hard and fast categorisation. The specific type of duty depends upon the particular circumstances under which such were incurred. Where a duty has been voluntarily assumed through an undertaking or by performance of an act that necessarily incurs a duty, the individual is generally assumed to be aware of the implications of his or her voluntary assumption of the duty. Therefore, the importance and necessity of the performance of the act is known to him or her, and the execution of the act is incumbent upon him/her. The individual is also generally aware that if he or she omits to perform the duty voluntarily assumed, the resultant harm will be attributable to the failure to perform the duty. An exception to these assumptions is when the duty may be construed to have expired or been discharged. Examples of this abound in instances where medical treatment may be refused by the patient, which in most cases discharges the duty. There are exceptions to this exception, however, where the court overrides the patients refusal or that of his parents/guardians. The reverse is also true, where the patient or his parents are insistent upon the treatment but which the doctors feel is not in the patients best interest, in which case the court may rule on the matter.

45 Finally, there is the highly controversial situation where an emergency exists and the patients death is imminent of treatment is delayed. The controversy arises where the doctor, because of the lack of time, makes a judgment call, and either applies treatment or withholds it, and the patient dies or is harmed further, in which case the doctor faces the jeopardy of manslaughter charges. The usual controversies arise where the source of the duty is based on some other justification without the volition of the individual. In such cases, the individual did not voluntarily assume the duty, and may not even be aware that he is charged with it, since the duty is presumed on the basis of the relationship of the person and the individual in need of assistance. This is where the moral dilemma arises, as to whether an individual who did not wilfully accept an obligation not mandated by law, and may not even be aware of it, may be held criminally liable by a failure to perform said duty. The dilemma may be addressed on several bases, although for expediency this study employed the minimalist-conventional view vis--vis the social responsibility perspective. The first leans more towards limiting the liability attached to omissions to those duties voluntarily assumed, but being detached from those duties without voluntariness. The second allows for liability to attach to all types of omissions, but qualified as to the harm caused, the evident nature of the duty and the severity of the consequence of omission, in the case where the duty was justified without voluntariness. Finally, the act-omission, deontological doctrine sees liability attaching to omissions because omissions are viewed as acts of dereliction of duty, provided the person was aware of his duty, capable of intervening, and aware that his failure to intervene would result in harm.

46 7. CONCLUSION Based on the analysis conducted on the problem sought to be resolved, this study has arrived at the following paradigm by which to view the nature of omissions, their qualification on the basis of the type of duty omitted, and the criminal liability that attaches. That liability may attach to an omission in the absolute sense is a foregone conclusion, because in the case of statutory duties that have been omitted, the corresponding penal provisions are clear and the person who has omitted the duty may clearly and ethically be meted the corresponding penalty.

Min
Diagram showing relationship between duty omitted and degree of criminal liability

The representation of the various punishable omissions are represented in the form of a triangle, indicative of their relative frequency as they are expected to occur in legal actions. They greatest number of omissions which should be punishable are those that are statutory in nature, because these are lawful obligations imposed with the knowledge of the individuals.

47 Following should be those duties that are incurred due to contractual, public or official duties. While these may be considered as voluntary assumptions of duty as classified in the preceding table, the fact that they are supported by a professional or official structure make them even more mandatory than the mere voluntary assumption of an ordinary duty, and therefore more appropriately the subject of regulation which may result in criminal liability. As the level of voluntariness diminishes moving upward in the triangle, the frequency of occurrences should also be gradually lessening. Finally, the fewest incidences of omissions which may be attached with criminal liability should pertain to those omissions of duties the justification of which is without voluntariness. The reason for this is that the duties addressed by these omissions are generally without the consent or volition of the persons burdened by them, and are sometimes without their knowledge. However, this does not mean that liability should not attach, particularly in those cases where the recklessness with which such omissions are made are so blatant and offensive in the humanitarian sense that punishment is not only appropriate but inescapable. These are with particular application to parents of their children. Generally, where the severity of the omission is greater and the beneficiaries of the protection of the duty are more vulnerable, the more vigilant the state must be as steward of its people, so that the welfare of the weakest and least powerful may be protected. It must be kept in mind that the diagram shows the degree of liability that should attach based on the typology of the duty on which the omission is based. This does not apply to the factual antecedents of each case, that is, to the type and degree of harm, the vulnerability of the victims, or the recklessness of the manner with which the duty had been abandoned. These should further qualify the severity of the punishment that the court should apply to the case.

48 The typology of duties presented here is based upon personal liability for omissions of personal duties owed to other individuals. However, as may be seen in the special issues presented in the paper, there is a need for these categories to expand to take into account the corporate liabilities that would attach to corporate manslaughter by omission, a new development in the law, and in future developments of statutory omissions that may be promulgated in multilateral agreements in international law. Presently, directions in international law are too early and tentative as far as omissions as sources of liability are concerned except in the case of superior responsibility, although resort to this appears to be a distinct possibility in the future.