Q1: “Since imposing liability for omissions as well as acts would be too restrictive

of human freedom it should be allowed only in the the most uncontroversial

circumstances.” -William Wilson. Discuss. To what extent does the law impose
liability on a person for an omission to act? Is the law too restrictive of human
freedom?

ANSWER:

There is generally no liability for an omission to act, because such liability would
restrict individual autonomy. This means that a person can only usually be held
criminally liable where he/she has performed commission (a positive act).
However, there are six exceptions where the law imposes a duty to act upon a
person and failure to so act can lead to criminal liability.

The first exception applies where a statutory provision may impose a duty on a
person to act, such as section 1 of the Children and Young Persons Act 1933,
which makes it an offence for a person with responsibility for a child to willfully
neglect the child, and section 170 of the Road Traffic Act 1988, which makes it an
offence for a person to fail to provide his details after an accident and report it to
the police.

Legal duty is also imposed when there is a special relationship between the
parties, such as a parent child relationship (Gibbins and Proctor), a doctor-patient
relationship (Airedale NHS Trust v Bland). A special relationship will result in a
duty being imposed upon the defendant to act to assist the other. However,
there is uncertainty over how far this category extends to other relationships,
such as siblings and spouses. (Smith) suggests that a married couple owe a duty
to one another. However, this case was not relied upon in Hood. A husband was
deemed to owe a duty to his wife, but the decision appears to have been made
on the basis of voluntary assumption of responsibility (he was her carer). It is also
unclear whether the duty extends to civil partnerships, cohabiting couples or
former spouses.

Voluntary assuming responsibility for someone is another exception to the

general rule. Where a defendant voluntarily assumes responsibility for someone,
the law imposes a duty upon them to continue to do so (Stone and Dobinson);(R
v Instan) and (Gibbins and Proctor). A defendant may be under a contractual duty
to act. Any failure to act in accordance with the terms of the contract may result
in criminal liability (Pittwood). Similarly, a person in public office, such as a police
officer, will have a duty to act in accordance with their position (Dytham).
There is also a duty on a defendant to act in order to avert a danger which has
been created. In R v Miller, the defendant fell asleep smoking a cigarette and
woke to find the mattress on fire. He then fell asleep in another room. He was
convicted of arson. When the defendant noticed the fire, he was under a legal
duty to take steps to avert the danger. He was convicted due to his failure to so
act. The obligation imposed by the law upon the defendant here was not
restrictive of his freedom, as only a minimal contribution for him was required
(e.g. phoning the fire brigade). This principle was applied in DPP v Santana
Bermudez to impose a duty on the defendant to warn a police officer that he had
a hypodermic needle in his pocket. The duty arose after the defendant created a
dangerous situation by telling the officer he had no needles in his pockets prior
to a search.

There are two academic arguments relating to whether or not criminal liability
should be imposed for an omission to act. Professor Williams advocates the
conventional view, while Professor Ashworth prefers the social responsibility view.
Ashworth states that these two views are not polar opposites.

The conventional view is that A should not be compelled to serve B. Williams

argues that there is clear moral distinction between an act and an omission. He
states that we have ‘strong inhibitions against active wrongdoing than against
wrongfully omitting’.

According to this view, the law aims to maximize each individual’s autonomy and
liberty. Citizens should not be encouraged to interfere in the lives of strangers,
nor should they be forced to help strangers; imposing such a duty would be of
huge burden. The conventional view holds that the criminal law should uphold a
individual’s choice, rather than compel an individual to act to protect a stranger.
By compelling an individual to act, the law is ‘allowing liability to be governed by
chance’ by thrusting the obligation to assist a person upon ‘a chance passer-by,
who may well prefer not to become involved at all’ (The scope of criminal liability
for omissions-Ashworth). Ashwoth states that ‘stopping to help is part of the
morality of aspiration, not the morality of duty’.

Imposing a duty on individuals to act to help another in peril would also increase
the possibility of mass liability and would be impractical. Imagine a situation
where a swimmer is drowning in the sea and is watched by a crowd on the beach.
Who does the law compel to help the swimmer? Should everybody be liable for
failing to assist? The conventional view holds that the criminal law should only
impose liability for omissions in ‘clear and serious cases’ and should be confined
to situations where the defendant has voluntarily assumed responsibility towards
another or there exists a special relationship.

By contrast, the social responsibility view is that A should be under a legal duty to
assist B, because society recognizes that we have a duty to support and help each
other. Ashworth argues that this view ‘...grows out of a communitarian
philosophy which stresses the necessary interrelationship between individual
behaviour and collective goods.’ This approach relies on the argument that all of
society will benefit from the duty to be helped when in extreme peril. However, it
safeguards liability by insisting that the peril far outweighs cost or inconvenience
to the person required to assist. Ashworth argues that liability should be limited
to those who had particular opportunity to assist.

It must be taken into account that there is a comparative argument for extending
the scope of the duty. European countries, such as France and Germany, impose a
duty on citizens to assist in an ‘easy rescue’. However, in England, no matter how
easy the rescue, no duty will be imposed upon a person to assist a person, unless
an exception applies.

In conclusion, Wilson’s account that liability for omissions should only be

imposed in morally uncontroversial causes reflects the current law. The restriction
on human freedom referred to by Wilson can be reconciled with the social
responsibility view: ‘...the value of one citizen’s life is greater than the temporary
freedom of another citizen’ (Ashworth). It can also be justified on a conventional
approach as it only applies in morally uncontroversial causes.

Q2:The reason for requiring that the defendant should be shown to have causal
responsibility for the conduct, consequence or state of affairs lies in the principle
of individual autonomy...Thus the approach of the criminal law is to affix causal
responsibility to the last individual whose voluntary behaviour impinged on the
situation-Ashworth. Critically evaluate the above statement in relation to
causation.

ANSWER:

This question requires a critical evaluation of the rules of causation and in

particular, the approach taken by the courts to novus actus interveniens (new
intervening act) which breaks the chain of causation. Ashworth states that the
rules of causation are underpinned by the principle of individual autonomy which
‘respects individuals as capable of choosing their acts and omissions’ who can be
regarded as responsible for the normal consequences of their conduct. However,
some events will intervene to break the chain of causation and absolve a
defendant of responsibility. The rules of causation are largely based upon
voluntariness. A voluntary or foreseeable act of the victim or a third party will not
break the chain of causation, whereas an involuntary act may. However, causation
is a complex area which lacks clarity, particularly in relation to the medical
negligent treatment.

The prosecution must prove that the defendant’s act is both a factual and legal
cause of the prohibited consequence. Factual causation is satisfied by the
application of the ‘but for’ test (R v White). Legal causation is used to describe the
requirement that the defendant’s act mus be sufficiently proximate to the
consequence. It is often stated that the defendant’s act must be more than
minimal cause of the consequence; this is de minimis test (Cato). In R v Pagett,
the ‘significant contribution’ test was applied in respect of legal causation and in
Smith this was expressed as the ‘operating and substantial cause’ test. Even
where factual causation has been established and the defendant is a more than
minimal cause of the the result, the defendant may get acquitted where there is
an intervening event which breaks the chain of causation. However, the chain of
causation will only be broken in certain circumstances.

Acts of third party will only break the chain of causation if it is done voluntarily.
This means they must be ‘free, deliberate and informed’ according Goof LJ in
Pagett. The defendant in Pagett was held responsible for the death of his
girlfriend. He held her hostage and shot at a police who shot back, killing her. The
defendant was convicted on the basis that the police officer was acting in self-
defence and out of a public duty to arrest the defendant, thus his actions were
not ‘free, deliberate and informed’. The reasoning of this decision can be
criticised. Ashworth suggests that a better reasoning would have been along the
lines of a ‘doctrine of alternative danger’.

Acts of a victim will break the chain of causation where they are ‘daft’ or so
expected that ‘no reasonable man could be expected to foresee it’: Roberts. This
approach was adopted in Williams and Davies. In Marjoram, the Court of Appeal
confirmed that the subject characteristics of the accused may be taken into
account here.

However, a pre-existing condition of the defendant which renders the defendant

particularly vulnerable to the injury inflicted or death will not protect the
defendant from liability. This is known as the ‘thin skull rule’. In Blaue, the thin
skull rule was extended to encompass religious beliefs. Lawton LJ stated that the
defendants ‘must take their victims as they find them. This...means the whole
man, not just the physical man’. Thus, a refusal of treatment based on religious
beliefs will not break the chain of causation. How far this principle extends to
other beliefs, however, is unclear.

In respect of negligent medical treatment, the courts have been reluctant to allow
the negligence of a doctor to acquit the defendant from liability for policy
reasons. In Smith, it was held that only if medical negligence was ‘so
overwhelming as to make the original wound merely part of the history’ would
the chain of causation be broken (per Parker LJ). Similarly, in Cheshire, the Court
of Appeal held that medical negligence will not break the chain of causation
unless the medical treatment was so independent of the defendant’s act and so
potent in causing death it renders the defendant’s act insignificant. This is the
‘independence/potent’ test and it was confirmed in Gowans and Hillman.

However, a very different approach was taken in the earlier case of Jordan. In this
case, it was held that medical negligence could break the chai of causation if it
was ‘palpably wrong’. However, this is an extreme authority, and although it has
not been overruled, it has been limited to its own facts by Lawton LJ in Blaue

The independence/potency test may be criticised. As Ormerod states, ‘it is

difficult to know what “so independent” and “so potent” mean’. If one considers
first the words ‘so independent’ : in all of the cases on negligent medical
treatment , the defendant’ act or omission causes the victim to undergo the
treatment. Ormerod argues that if this in itself renders the act ‘dependent’, then
the defendant has caused the death, irrespective of how ‘outlandish’ the
treatment is. Ormerod submits that is not the intended meaning of ‘so
independent’. Similarly, the words ‘so potent’ are confusing. In criticizing this
term, Ormerod provides an example of a victim who is wounded by the
defendant and hospitalized for that wound. If he contracts MRSA in an unclean
hospital as the wound has healed, and dies, did the court in Cheshire intend that
the defendant is not a legal cause of death? Ormerod submits that this is unlikely.
These criticisms demonstrate that the the test in Cheshire is confusing and in
accessible and, as such, is of limited use,

In criticizing the ‘independency/potency’ test, Ormerod suggests that a better

test would be one in which the chain of causation could be broken where the
treatment was ‘so extraordinary as to be unforeseeable’. Such a test based upon
foreseeability would certainly bring negligent medical treatment into line with
many of the other authorities relating to novus actus interveniens.

In conclusion, it is clear that causation is generally based upon the principle of

individual autonomy. A defendant will be absolved of liability where an
unforeseeable or voluntary act of the victim or third party intervenes to break the
chain of causation. However, the approach taken in cases of negligent medical
treatment seems somewhat out of line with the rest of the law relating to
causation and this area of law could benefit from further clarification.

Q3:”It might . . . be expected that the meaning of such a fundamental term as

intention would have been settled long ago, but this is not so. The cases are
inconsistent, judicial opinion has recently changed and there is still some
measure of uncertainty”-Ornerod. Critically evaluate the meaning of the intention
in criminal law. To what extend do you agree with the above statement?

ANSWER:

This question requires consideration of the meaning of ‘intention’ in criminal law.

Ornerod suggests that, despite the judicial attention given to intention, its
meaning remains uncertain. It is true that the decisions of the courts have been
inconsistent and unclear over the years and Parliament has not intervened to
clarify the law. However, the law has been appeared more settled since the House
of Lords decision in R v Woollin. The importance of a clear definition of intention
should not be underestimated. Intention is the mens rea requirement for some of
the most serious offences in criminal law, including murder. Murder carries
mandatory life imprisonment; such a serious threat to an individual’s liberty upon
conviction requires that the elements of the offence be precisely and clearly
defined. As Lord Bingham states, ‘. . . the law must be accessible and so far as
possible intelligible, clear and predictable’. The law must be adequately clear and
accessible, so that an individual can find out what it is and be aware if his or her
conduct will fall foul of it. The law must also be certain so that a trial judge is able
to explain its meaning confidently to the jury. Nevertheless, the meaning of
intention has been the subject of much uncertainty over the years.

Although intention is now recognized as a subjective test, it was given an

objective test by the House of Lords in DPP v Smith. It was to be conclusively
presumed that a person intends the natural and probable consequences of his
acts. Such a presumption is not justifiable. Where the offence is of a serious
nature, the mens rea required in order to establish criminal liability should
depend upon the subjective state of mind of the actual defendant, rather than on
any objective test. This case was criticized and it no longer represents the current
law. Section 8 of the Criminal Justice Act 1967 confirms that intention is a
subjective test.
In the majority of cases in which the issue of whether the defendant’s intention is
in issue, the jury are not given judicial direction as to the meaning of the
intention. This is because intention is an ordinary word used in everyday
language, and the jury should use their common sense in determining its
meaning. There are two types of intention: direct intent and oblique intent. Direct
intent involves the defendant’s aim or purpose (R v Moloney). This form of
intention is relatively straightforward; so the jury are not given any direction by
the judge. Oblique intent may be present if, although the defendant did not
desire the consequences, but did foresee that they were virtually certain to occur
( R v Woollin). In rare cases in which the oblique intention arises, a judge should
give the jury a direction as to the meaning of intention. Although one might have
thought that intention should be easy to define, case law demonstrates that it ha
proved difficult to define the degree of foresight necessary for oblique intent.

According to the House of Lords in Hyam, intention could be established if the

defendant foresaw death or GBH as a highly probable result. This test was
criticised for being too close to recklessness. It is important to maintain a clear
distinction between meanings of intention and recklessness in order to
adequately distinguish between the offences of murder and manslaughter. There
is also a significant moral difference between wanting a result to occur and
merely foreseeing it as highly probable.

In Moloney, the House of Lords retreated from Hyam. Lord Bridge stated that the
golden rule is that the judge should avoid any elaboration and leave it to the
jury’s good sense to decide whether the accused acted withe the necessary
intent, unless the judge is convinced that further explanation is necessary. His
Lordship stated that a jury should consider two questions: ‘First, was death or
really serious injury in a murder case . . . a natural consequence of the
defendant’s voluntary act? Secondly, did the defendant foresee that consequence
as being a natural consequence of his act?’. If the answer is yes to both, the jury
may infer that the defendant intended the consequence.

In Hancock and Shankland, Lord Scarman held that ‘ . . . Moloney guidelines . . .

are unsafe and misleading. They require a reference to probability. They also
require an explanation that the greater the probability of a consequence was
foreseen and that if that consequence was also intended’. The repeated reference
to ‘probabilities’ did little to clarify the position and to provide a certain
distinction between intention and recklessness.

In Nedrick, the Court of Appeal laid down a narrow test, which forms the basis of
the current law. The court held that where a direction was necessary ‘. . . the jury
should be directed that they are not entitled to infer the necessary intention,
unless they feel sure that death or serious bodily harm was a virtual certainty . . .
as a result of the defendant’s actions and that the defendant appreciated this’.
This is a much narrower test than that in Hyam, and it means that the distinction
between recklessness and intention is clearer. This was approved by the House of
Lords in Woollin, where the the word ‘infer’ was changed to ‘find’. It was held that
foresight by the defendant that a result is a virtually certain consequence of his
actions is merely evidence of intention. The trial judge in Woollin was criticised
for directing the jury on intention using the phrase ‘substantial risk’. The House
held that the judge should not have departed from Nedrick and that ‘substantial
risk’ was wider than ‘virtual certainty’. Lord Steyn stated that: ‘By using the phrase
‘substantial risk’ the judge blurred the the line between intention and
recklessness, and hence between murder and manslaughter. The misdirection
enlarged the scope of the mental element required for murder.’
In 2006, the Law Commission published a report entitled Murder, Manslaughter and
Infanticide. It recommended that the Woollin direction on oblique intention should be
codified. Intention should be defined as follows:
A person should be taken to intend a result if he or she acts in order to bring it about. In
cases where a judge believes that justice may not be done unless an expanded
understanding of intention is given, the jury should be directed as follows: an intention to
bring about a result may be found if it is shown that the defendant thought that the result
was a virtually certain consequence of his or her action.
In conclusion, although the meaning of intention has proved difficult t define, the
law appears more settled now. However, it should be taken into account that
most of the cases defining intention are murder cases. Woollin is limited
specifically to murder, thus it remains unclear what approach the courts should
take in respect of other offences. Allen states ‘it would be highly undesirable if
courts were to adopt a different approach to the meaning of intention in other
offenses. Thus, it is true that some degree of uncertainty as to the meaning of
intention remains.