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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 state’s 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 country’s 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 nation’s 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.
Oxford University Press. & Hogan. consequence or state-ofaffairs. 1 Smith. it means not doing (or omitting) to do an act when one is obligated by law to do it. 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. however. in criminal law. comprises the actus reus that give rise to criminal liability. J. the actus reus. do something. not doing anything does not ordinarily cause any liability for the individual. Simply stated. which refers to any element that assigns fault to the accused. 30 . the mens rea. 2. 2.2 Definition of “omission” Omission. for the purposes of analysis. Omission of an act. The actus reus has also been described as the external manifestation of the offence.1 For most criminal offences. and contemplates everything about the crime except the internal mental state of the accused. and to distinguish it from the positive criminal act. There is. Brian. Criminal Law. and upon which liability is imposed. Ordinarily. a crime involves doing an act. p. which is comprised of the prohibited act.. by its two essential elements: first. 10th ed.C. Ordinarily there can be no liability that may attach when the accused has not done anything.5 2. the actus reus is comprised of a positive act the accused is alleged to have carried out.1 Elements of a crime A crime is generally defined. However. or even counted upon to. including intent or recklessness. in certain cases. is a failure to act. and second. omission. a different significance attached to the fact that the accused has not done anything when he was expected to.
5 Humanitarian international law6 has likewise created several specific duties 2.  QB 354.. For instance. 4 Fagan v Metropolitan Police Commissioner  1 QB 439 Yuthiwattana (1984) 80 Cr App R 55 . the actus reus. in order to show a state of mind or a habitual act where the mens rea becomes apparent.6 when there is a duty to perform some positive act.8 and similar offences. the failure of a landlord to replace his tenant’s lost key could be viewed as a positive ‘act’ of harassment against a tenant. ‘The Scope of Criminal Liability for Omissions’ (1989) 105 Law Quarterly Review 424 at 424 R v Instan. may only be committed as positive acts.3 Distinguishing acts from omissions There are some offences which. or a physician to his patient. such as committing to or accepting to take care of that other person. R v Miller  2 AC 161 Contrary to the Criminal Law Act 1967.e. 2 3 4 5 6 7 8 9 Ashworth.9 Such cases would be best approached by evidencing a set of incidents or events instead of just that single event. There is also a confusing category of offenses that. s. are themselves construed as acts. and not as omissions. In that case. Examples are acting to prevent the apprehension of an offender. A.7 assault and battery. by their nature. such as a parent or guardian to a minor child2. The obligation to act arises because of the status of one person to the other. for which the mens rea is appreciated.4 or because such action created a risk of harm for another.3 The obligation also may materialise because of an earlier act or conduct of the person. the omission would be interpreted as an ‘act’ i.  1QB 450 Airedale National Health Service Trust v Bland  a All ER 821 R v Stone & Dobinson. the failure to fulfil this obligation is what constitutes an omission within the contemplation of criminal law. while they are omissions to perform certain acts.
John Harris. 2. In Fagan v Metropolitan Police Commissioner. A person should not be held responsible for something he did not do (or. something he did) if it did not redound. 11. The crucial distinction. 149. .7 The distinction between acts and omissions is confusing. otherwise it is this act that would have been cited as constituting an assault. and others. and not the omission to move the car quickly off the foot. the defendant halted his car with one wheel on the foot of the officer. Because of his intentionally delayed response. it seems. Vol.  3 All ER 442. amounting to an assault on the officer. The reason that the causal status is so important is that it goes to the core of criminal liability. the defendant was held guilty of omission to move the care immediately.4 Omissions as a source of liability Mead points out the necessity of determining the causal status of omissions. whether wholly or partly. p. When asked to immediately move the car off the police officer’s foot. is the presence (or absence) of a reasonable expectation that a person will behave a certain way because of the circumstances. DC Mead. Douglas N. Jul 1.11 This refers to the causal connection between what is deemed an ‘omission’ and the harm or injury it is supposed to have caused. Geoffrey ‘Contracting into Crime: A Theory of Criminal Omissions’ Oxford Journal of Legal Studies.J Fitzgerald. citing Jonathan Bennet. likewise.10 the defendant was asked by a police officer to draw his vehicle up to the kerb. to the harm or endangerment of another. and appeared to take his time in moving the vehicle off the distressed constable’s foot. Issue 2 . 10 11 Fagan v Metropolitan Police Commissioner  1 QB 439. 1991. P. A case is usually cited that illustrates the difference between act and omission. as shown in the example above of the landlord’s omission to provide a tenant’s key. The ruling apparently took the initial positive act – that of the driver pulling his vehicle onto the foot – as unintentional. [ 1968] 3 WLR 1120. In the course of doing so. the defendant was noticeably slow in restarting his car’s engine. Husak.
The reasoning traces the effect to the cause in an unbroken line of logic to the initial cause. However. p. which means that the nonactor did not cause it. but was assisted by a life guard before any serious harm had happened. in the instance that the child had actually drowned. The search for a cause of an occurrence is limited to seeking an explanation for why something happens. that would produce the end result of harm or endangerment. and the eventual harm. 30 Philosophical Quarterly 1. because the presence of a life guard or his action in the execution of his duties is normally expected in this situation. Whether the actor (or non-actor) is there or not. Leavens explains that in the case of a child drowning. 12 13 Leavens. the absence or inaction of a life guard may have been an intermediate cause. In most cases. or even the logical cause in the normal course of events.. 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. the logical cause is that the child went swimming. 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.8 The problem with omissions is creating the connection between the failure of a person to act. Arthur. meaning that there is already set into motion a chain of events. the supposed cause is not the only determinative event. without drowning. Therefore. It is also possible that the child may have gone swimming and had been distressed.13 In such an occurrence. 150 . observers believe that this inquiry is nearsighted and unrealistic. (1930). for instance. Ibid. without the participation nor fault of the offender held guilty of omission. the cause of harm is not only attributed to the positive act that had set in motion the course of events. the inevitable consequence will happen. Omission is simply ‘not acting’.12 Critics of this line of reasoning observe that it is limited to a particular conduct and sequence of events. Thus. ‘A Causation Approach to Liability for Omissions’. But it is likely true that the child may have gone swimming many times before.
14 Going one step further. While an omission did occur in the ordinary sense. They had no duty to vigilantly oversee the situation at the swimming area to search for persons in possible peril. As earlier mentioned. op cit. 14 Leavens. and the omission of that action by the actor is in breach of the regular expectation. that the expected action from the designated actor should be actually relied upon as a regularity. 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. such persons may not be held liable for the drowning. given the likelihood of the impending harm. . 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.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. p. Because the duty did not exist. the first attribute appears to be that the action should be reasonably expected – that is.. that the person who may be held liable for the drowning child is the life guard. and that their failure to rescue the drowning child resulted in the latter’s death. 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. the next difficulty is determining which omissions may be the source of liability. Given that omissions may be the cause of harm. such an omission is not open to criminal liability because such persons did not have the duty to act to save the drowning child. It may be possible that other good swimmers may have been in the immediate area. 150. The fact that omissions means ‘not doing’. 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. As nearly all jurisprudence states. This is evident in the example given.
.10 It is therefore necessary. to determine what statute and jurisprudence have identified as sources of duties the fulfilment of which is mandated by law. in the study of omissions.
Jurisprudence has specified that there is a duty to act where a close family relationship exists. SOURCES OF DUTY AS BASIS OF OMISSIONS 3.11 3. 15 16 17 18 Stewart. M J ‘How Making the Failure to Assist Illegal Fails to Assist: An Observation of Expanding Criminal Omission Liability.16 Criminal law turns on the established principle that liability for an omission shall be incurred only where a duty to act exists.’ Journal of Criminal Law. p385 R v Adomako. (2) breach of that duty causing death. Spring 98.17 where there is voluntary assumption of responsibility. 25 Issue 2. for lack of legal status as an organisational or corporate body. and (3) gross negligence which the jury considered justified a criminal conviction. constitute a duty to act. The essential elements of involuntary manslaughter by breach of duty includes: (1) proof of the existence of the duty. was generally immune from prosecution in the case of involuntary manslaughter prior to the CMCHA. (1994) HL R v Lowe.15 Even police forces. in particular.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.18 and where a dangerous situation is created by the individual who incurs the liability. Vol. Different theories have been proposed in trying to determine what situations. (1973) QB 702 R v Stone & Dobinson (1977) QB 354 .
if an organisation does not comply with its duties to observe the statutory health and safety regulations. Accessed 10 May 2011 from http://www.3 Failure to prevent or report criminal conduct Since the offence of misprision of felony was abolished in 1967. Safety and Environment Super Series.ac. then the officers of that organisation may be held criminally liable.20 3. then the individual who fails to comply will be held criminally liable for his or her failure to act. Another example would be road traffic laws that require motorists who are involved in road accidents to stop.londoninternational. ‘Chapter 4. also. 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. For instance.pdf . and specifically state that if such acts are not complied with. misprision of 19 20 Institute of Leadership and Management. at p. 3.uk/current_students/programme_resources/laws/ subject_guides/crim_law/criminal_ch4. A person is therefore certain where he or she transgresses the statute. Oxford: Elsevier Science (2003).12 3. the actus reus of which is also defined in the failure to comply with it. However. the duty to act is created by a provision of law. Actus Reus: Omissions.’ University of London External Programme. the failure to provide a breath sample when asked to do so would also incur liability for the offender. as well as other provisions of law. University of London. Likewise. and the scope of the compliance delimited. otherwise they would be designated as hit-and-run offenders. This type of omission has the advantage of being clearly identified and described. Managing Lawfully – Health. impose specific duties on certain individuals that obligate them to act in a certain way. 4th edition. since the scope of the duty will also be clarified.19 In this type of omission. it is not now an offence for an individual not to report crimes committed by other persons.2 Statutes that impose a duty to act Several regulatory statutes.
in seeking to resolve a breach of the peace. . the fact that death occurred as a result of neglect does not. Three relationships shown here are those of a parent or guardian to a child in his or her care. in specific situations. Where such wilful neglect results on the death of the child.21 Included in such care for the child are the provision of adequate food. or knowledge or suspicion of money laundering. have a duty of care to them because of that relationship. 3. in such a way that the child suffers unnecessary suffering or injury to his health.13 treason is still in effect. to whom the individual has voluntarily committed to assist or care for. but are not limited to these acts.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.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.4. and an individual towards a person unable to care for himself or herself. and under it a person who fails to report an act of treason may himself be held criminally liable.section 1. clothing and medical care. socially and morally. More recent laws have likewise made it an offence to fail to disclose: personal knowledge about terrorist activities or funding for them. an individual towards other persons by virtue of his public. contractual. the offender may be prosecuted for manslaughter by gross negligence. but that such may happen because of evidence of 21 Child and Young Persons Act 1933 . Furthermore. or official duties. it is also a common law offence to refuse assistance to a constable who calls for it. however. lead to a charge of manslaughter. 3.
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. for which purpose a duty of care still exists between related persons even as adults. However. November 12. he was subjected to constant abuse and neglect. and not older offspring. However. a broken back. he sustained eight broken ribs.ece . The baby boy was born on March 2006. perfectly healthy. or where the child who is above 18 years old still lives with his parents as dependent. Accessed 10 May 2011 from http://www.uk/tol/news/uk/crime/article5140511.co. Adam ‘After 17 months of unimaginable cruelty. There is no doubt that during the entire seventeen months that the child lived. pending the results of investigation.23 The application of the law in the case of children was brought into sharp public focus by the case of Baby ‘P’. 22 23 24 R v Gibbins & Proctor. public and official duties. and died seventeen months later due to injuries sustained over a period of time. Baby P finally succumbed. both by his mother and her live-in lovers who had histories of cruelty and child abuse. The statute covers only children below 16 years of age. Thus. It is also possible for a parent who deliberately starves a child to death to be liable for murder.14 intent to harm the child be means of such neglect. a finger missing its top. to the point that they may incur criminal liability if they ‘neglect’ her fundamental needs. however. due to studies or similar reason. and may be held culpable. R v Chattaway 17 Cr App R 7  Fresco. daughter is considered of age and is ‘entirely emancipated’. 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.’ The Times. and her parents are under no special duty of care for her.timesonline.24 These professionals are discussed in the next section under failure to discharge one’s contractual. The body of the child was covered in bruises and scabs. an 18-year-old. 2008.22 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). 13 Cr App R 134 .
As a result. ‘V’ suffered a cardiac arrest. the sad case of Baby ‘P’ was discussed. but failed to act with the level or responsibility or duty attached to their position. causing ‘V’s’ death and thereby amounting to gross negligence. According to Lord McKay LC.2 Contractual. profession. In R v Adomako (1994) HL. having regard to the risk of death involved. pending the conclusion of proceedings. his contractual relationships and the obligations thereof. Because such professionals were in a position to know the long-term abuse of the child. be held criminally liable for their omission to observe the duty of care they were obligated to comply with. ‘D’ was an anaesthesiologist in charge during an eye operation.15 3. and subsequently died. mentioning that culpability may not lie solely with the mother or her live-in lovers. or contract. they may.”25 In the preceding section. The court held that ‘D’ was guilty of manslaughter by gross negligence. 25 R v Adomako. reasoning that ‘D’ owed ‘V’ a duty of care which was breached.4. public or official duties Liability may arise by virtue of a person’s official duties. (1994) HL . 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. or by reason of the responsibility to fulfil a public duty. ‘D’ failed to observe that a tube inserted into the mouth of the patient ‘V’ had become detached from the ventilator. but also with the professionals who attended to the child. the conduct of the defendant was so bad in all the circumstances as to amount in the jury’s judgment to a criminal act or omission.
16 These professionals included Sabah al-Zayyat. op cit.27 Paulette Thomas. he does not seem to stop himself. she found the child sitting in his pushchair with chocolate covering his fact and hands. who reported ‘no concerns’. Ward visited the child for the first time 20 days later. Only his mother can stop him. team manager at Haringey Social Services. reported five months before his death that the child ‘appears to have a high pain threshold…It is concerning that he does not seem to react to danger or pain. Furthermore. Fresco. and that Dr.’28 These professionals. . two days prior to his death. During the consultation. are presumed to have the competence to easily detect that the child had been suffering unimaginable abuse and neglect. She spotted bruising on the baby’s face. was the health visitor charged with Baby ‘P’s’ case. the social worker assigned to the case of Baby ‘P’ on 2 February 2007. but who visited the boy only four times in six months since the mother cancelled four appointments. Ward felt content to leave the child with his mother because she seemed co-operative and properly supported. the consultant paediatrician who saw Baby ‘P’ alive. 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. Ibid. trained in their specialised fields. Al-Zayyat thought the baby had a cold. Al-Zayyat failed to detect the broken back and eight broken ribs already sustained by the child. Gilly Christou.26 Another professional was Maria Ward. may conceivably held accountable for the death of the child. Ward visited Baby ‘P’ four days before his death. which the mother explained was due to a squabble with an older child. the public outrage 26 27 28 Ibid. Finally. purportedly to cover up the bruises. The record showed that the examination could not be completed because the baby was ‘miserable and cranky’. and on the basis of themselves omitting to exercise that due care in the discharge of their duties.
Society is becoming progressively risk-averse. Under this scheme. 74 Issue 2.17 that followed this case was indicative of the widespread perception of society’s duty to protect the vulnerable and therefore bringing all those professionals empowered by society to account for their omission. illness or infirmity. The result is the exercise of excessive caution due to the perceived need to play safe.4. this sometimes redounds to the denial of independence to and the exercise of discretion by the care recipients. but particularly from that of the care providers.74. Apr 2010.2. incurs for himself a duty to fulfil that commitment. not just from the point of view of the patients and care recipients. Prior to the CMCHA. to the deterioration of the quality of life.2010. Catherine. On the other hand. 2005). CMCHA compels investigators to look more intensely at the organisation’s work practices as mandated by senior management. DOI: 10. ‘Liability for Manslaughter by Omission: Don't Let the Baby Drown!’ Journal of Criminal Law. p163-179. Thus. 3.1350/jcla. Vol. while the person is unable to take care of himself.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. as of 2005 only five such cases have ended in convictions (Community Care.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. or until that 29 Elliott. the passage into law of the Corporate Manslaughter and Corporate Homicide Act 2007 was greeted with particular concern by care professionals.627 . guilt attaches only if it may be proven that senior managers are grossly negligent in their individual capacities.
her condition gradually deteriorated to the point where she became bed-ridden. Although she initially was able to attend to her needs.”30 30 R v Stone & Dobinson (1977) CA . The sister eventually died as a direct consequence. Fanny. 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. her body full of bed sores. The fact of the relationship between Fanny and her sister. they failed to call for or provide medical assistance. Mere inadvertence is not enough…The defendant must be proved to have been indifferent to an obvious risk of injury to health. 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. was merely incidental. What the prosecution have to provide is a breach of that duty in such circumstances that the jury feel convinced that the defendant’s conduct can properly be described as reckless. When it was apparent that she was in dire need of medical attention. The court held that both accused were guilty of manslaughter by gross negligence.18 responsibility is passed on to another. The existence of a duty of care is also appreciated where there is a voluntary assumption of responsibility. that is to say a reckless disregard of danger to the health and welfare of the infirm person. to live in their home. where accused Stone and Dobinson allowed Stone’s sister. defendant Stone. In such a case. in a condition of squalor and filth. because of the duty of care they assumed when they accepted Fanny into their home. This was the case of R v Stone & Dobinson. Fanny was known to them to be anorexic and unstable. or actually to have foreseen the risk but to have determined nevertheless to run it.
Jul 1. 11. the courts have been uncertain in categorizing those types of voluntary relationships or commitments that places the commitment under the classification of ‘duty’. did not feed her nor summon medical help. However. the two accused were held responsible for the victim who lived in their house. Oxford University Press. indicating that the victim is solely dependent upon the defendant for his care and welfare. Mead.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. she became unable to feed herself or even call for help. by his own acts or fault. does not qualify the duty of care. Vol. Issue 2 R v Instan. Geoffrey ‘Contracting into Crime: A Theory of Criminal Omissions’ Oxford Journal of Legal Studies. even as ‘D’ remained in her aunt’s house and eat her aunt’s food. (2005) ISBN 0406977305. is responsible for the emergence of a dangerous situation. was implied to have committed to look after her aunt’s welfare even as she benefited from her aunt’s bounty. and her niece ‘D’ was held liable for manslaughter due to omission to exercise the requisite duty of care.5 Duty to avert a danger that was created by defendant Where a person who. 1 QB 450  . 3. the aunt eventually became ill and physically incapacitated due to gangrene in her leg. by voluntarily staying in her aunt’s home and partaking of her food and resources.32 In the Smith and Dobinson case. 1991. David. The aunt eventually died of neglect. In this case. a duty to undertake reasonable measures to mitigate or eliminate the danger 31 32 33 Ormerod. however. however. and there are no other people involved in the care of the victim. Smith and Hogan: Criminal Law. the liability proceeded not from the fact of their blood relationship. Eventually. In R v Instan33 the accused ‘D’ was living with her aunt who was originally capable of caring for herself. however. ‘D’ neglected her.19 Throughout the years. but because ‘D’. the defendant is apparently more capable and has a greater moral commitment than that of a third party. Ownership of the residence.
’37 This was the first articulation of what eventually came to called the ‘principle of supervening fault. but referred to the set of events that transpired from the moment the fire began. Failure to perform such steps to alleviate the danger may be tantamount to gross negligence and give rise to criminal liability. the person becomes liable.34 Miller was a homeless person who had been smoking a cigarette when he fell asleep on a mattress in a house.  UKHL 6 at para. conduct which consists of failing to take measures that lie within one's power to counteract a danger that one has oneself created. Eventually. thereby causing damage estimated at ₤800. the fire flared up and spread. but because he failed to take any step to stop it or prevent it from becoming worse.  UKHL 6 at para. sections 1 & 3. Upon waking and finding the mattress smouldering. leading to damage and injury. 176 . until the reckless refusal of the accused to extinguish the flames. 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.36 not because he intentionally started the fire. This ruling established that actus reus did not solely mean positive action. 2 AC 161  R v Miller.’ that a person’s actions should give rise to a danger from which a duty to act proceeds in order to mitigate or eradicate the danger. instead of trying to douse the fire or calling for help.35 Miller was tried and convicted for arson. 162 Criminal Damage Act 1971. if at the time of such conduct one's state of mind is such as constitutes a necessary ingredient of the offence. The starting of the fire and the 34 35 36 37 R v Miller. In the decision issued by the House of Lords on appeal. Miller reiterated his defense that there was an absence of actus reus coincident with mens rea. he instead moved to a different room. and that failing this.20 may arise on his part. In R v Miller.
In this ruling. however. or absence. in R v Khan. of a duty of care. Accessed 10 May 2011 from http://www. withholding treatment in the best interest of the patient. The appellants abandoned the victim.html R v Khan.bailii.21 reckless refusal constituted the actus reus and the mens rea of the crime of omission. EWHC 2908  (Admin). These situations include refusal by the patient to consent to treatment..39 Finally. a needle) on his person. because said defendant failed to inform a police officer of the presence of a sharp object (i. omission of which may well lead to criminal liability.41 38 39 40 41 Under the Offences against the Person Act 1861 Director of Publi Prosecutions v Santa-Bermudez. first and foremost. 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.e.com/uk/booksites/content/0199275297/chap_1 . resulting in the officer pricking and hurting himself on the needle. In this matter.40 the Miller principle was applied by the Court of Appeal to the context of manslaughter. In another case. Chap. and omission to perform this duty cannot be blameless. who thereafter died as a result of the overdose. if evidence existed upon which the jury may decide the existence. Appellants provided the victim with heroin on which she inadvertently overdosed. the appellate court that the trial judge should have determined.1 – Actus Reus: The external elements of an offence. Accessed 10 May 2011 from http://www.org/ew/cases/EWHC/Admin/2003/2908. and practical and financial considerations. Having decided that a duty of care did exist.oup. the defendant was convicted of ‘assault occasioning actual bodily harm’38 when. Crim LR 830  Oxford University Publishing (OUP). there are three special circumstances that qualify whether or not the doctor and the hospital would be incurring liability. The ruling therefore clarified that a duty to act may be created by one’s own actions. the next step would have been for the jury to find out if the defendants had committed a breach of that duty of care.
however. Patient ‘C’ then filed an action seeking the court for an injunction to prevent the amputation of his foot without his written consent. who is also paranoid schizophrenic. Part III. Oftentimes. the patient did have the capacity to manage his affairs. In such cases. 42 In this case. The presumption is therefore in the patient’s favour. the judge appreciated that although schizophrenic. the High Court has the discretion to make use of its wardship jurisdiction to supersede the 42 Re C (Adult: Refusal of Treatment)  1 WLR 290 . and was capable of understanding his condition. in the case of minors where parents have refused the application of medical treatment. In this case. and that despite his schizophrenia he did understand and has made a clear choice on the basis of that understanding. The doctors had recommended that his gangrenous foot be amputated because it is a threat to his life. While ordinarily doctors and hospitals are under obligation to provide medical assistance to patients under threat of criminal liability.22 3. There are instances when the refusal of the patient to give his consent is pivotal in the decision.6. the doctor or hospital may not be held responsible for the omission of care deemed necessary for the patient. 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. carrying out the medical procedure despite the patient’s refusal. The judge expressed satisfaction that the respondents failed to prove that the patient did not understand the nature. In one such case. had been admitted to a secure hospital under the Mental Health Act 1983. and effect of the treatment proposed. For instance. purpose. is itself the source of criminal liability. exceptions to the exception to the general rule. the doctors and the hospital are precluded from imposing upon him the medical treatment he refuses to consent to. There are also. the opposite – that is.1 Situation 1: Refusal by the patient to consent to treatment. patient ‘C’.
Hedley J. there are also instances when the reverse occurs – where the patient. 3.W. The doctors took the position that she should no longer be ventilated artificially.23 parents’ refusal.H.  E. 2247. the doctors must not be remiss in providing the treatment. blind. their point of disagreement was whether or not Charlotte should once more be artificially ventilated if she stopped breathing.  All E. or more often the minor patient’s parents. 693 (Fam.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. In Re Wyatt. however.C. would insist on the performance of a medical procedure or treatment that the doctors or hospital would refuse to do or give.45 in such cases. for to argue that the patient does not give his consent would contradict the pronouncement of the court.46 Charlotte Wyatt was a premature baby with a birth weight of only one pound. (D) 294:  E.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. and incapable of voluntary movement. since the intubation procedure involved was distressful and 43 44 45 46 Re B (A Minor) (Wardship: Medical Treatment)  1 WLR 1421 Re W (A Minor) (Medical Treatment: Court’s Jurisdiction)  Fam 64 Re T (Adult: Refusal of Treatment)  Fam 95 Re Wyatt (A Child) (Medical Treatment: Parent’s Consent).W. as such would not be in her best interest. She fought off infection while her breathing and brain functions steadily deteriorated until the damage to her body was deemed irreparable.) . on the ground that such treatment would not be in the best interest of the patient.H.6. The doctors and parents agreed that her chance of survival were not good.R. She appeared to be deaf. who needed to be ventilated during her first three months of life.43 or the refusal of the minor patient himself.C.
and where the doctor administers a lethal drug to actively cause the death of the patient. there is at least a possibility of legitimacy. therefore. 865 Re J  2 WLR 140 . Where the doctor actively ends his patient’s life. where major or even repetitive surgery may be necessary to prolong life.48 47 48 Airedale National Health Service Trust v Bland  AC 789. it was observed that the best interest of the patient did not necessarily redound to his being kept alive at all costs. therefore. In cases such as these. where such could be construed as against the best interests of the patient. or those babies born severely handicapped either mentally or physically. and therefore insisted that Charlotte’s life should be prolonged as far as possible. which is completely absent in the positive act. the omission to perform one’s duty of care in the traditional sense. devout Christians. and it is expected that prolonging Charlotte’s life in this manner was pointless. hoped for a miracle. such act is never lawful though the doctor is motivated by humanitarian ideals to end suffering. In another case. Where a doctor omits to provide care.47 In omission. The types of controversies under this situation are numerous. He drew the line between the cases where a doctor decides not to provide treatment to prolong life. p. does not fall under category of criminal omissions.24 painful to the patient. The question may likewise arise in the case of those individuals advanced in age to the point of being incapacitated. Lord Goff penned an instructional distinction between acts and omissions in the context of the patient’s best interest. as such would be against her best interest. or even where the patient is incapacitated to give or withhold consent. Charlotte’s parents. the omission may be lawful where such was the wish of the patient. On the other hand. The court sided with the paediatric team in deciding against artificial ventilation for the child.
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.6.25 3. It is simply not practical. David.49 49 Ormerod. Apart from the consideration as to whether treatment would be in the best interest of the patient. (2005) ISBN 0406977305 . Smith and Hogan: Criminal Law. there is the need to determine the possible financial burden and the manpower limitations. the cost would not be worth the additional years if such would only prolong life marginally. that all persons whose lives may be prolonged by major surgery or intensive (and invasive) cutting-edge medical procedures will receive it. from the point of view of available resources. Oxford University Press. For many.
op cit. The undertaking should be seen from the point of view as the ‘best position’ perspective. by the volition of the actor. 930. ‘Promises in Morality and Law’. The ‘Best Position’ argument is grounded on three reasons. . the person who promises to perform an undertaking is of such state of mind that the duty is created by positive justification.52 First reason is that the promisor will most likely be the person who is in the best position to know the peril. Mead believes. The voluntary assumption by a person to do something is seen as a ‘positive justification’ for duty to exist. p. knowledge of incurring of liability. however. pp. Second is that the promisor may in 50 51 52 Mead. for which a person will be in need of assistance. 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. He may understand the ways a person may be vulnerable to such dangers. 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. J. Mead50 categorizes the sources of duty under three types: undertaking. Mead. that the voluntariness of the undertaking as a source of duty should transcend the mere contractual performance of an undertaking that a promise entails. 167-171 Raz.51 In this case. (1982) 95 Harvard Law Review 916. that the promisor undertook the commitment because he or she was in the best position to perform the act. 4.26 4. and justifications unconnected with voluntariness.1 First type: voluntary assumption of a duty.. in a manner other people may not be aware of. op cit.
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. The concern is that the actor is not put in jeopardy without good reason. and for which the subsequent liability would be unjust for lack of notice. when the actor performs a duty that presumes the incurrence of a duty means that (a) the . third persons who knew about the undertaking would think that they were not particularly helpful in its performance. and that there must be a positive reason for the actor to be burdened with the duty. On the other hand. he feels himself equipped with the necessary skills and thus feels capable to perform the act. 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.27 most likelihood be the most capable person to perform the act. For instance. the actor incurs a duty. the act of Stone & Dobinson in allowing her (Stone’s) 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. That is. This proceeds from the normal presumption that when a person volunteers to do a particular thing.2 Second type: voluntary performance of an act that incurs a duty. 4. These three reasons enhance the undertaking as more than mere compliance of a contractual obligation. Some observers feel that there is an implicit assumption of a duty is insufficient. The second type of sources of duty is the voluntary performance of an act with the actor’s knowledge that by doing so. 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. Thirdly. or at least he or she would be better able than a third party to competently discharge the duty.
in Making Law Blind. despite his unwillingness.53 4. is bound by duty to perform if he is the best qualified person to perform the task. This is the case that invites the greatest controversy among legal theorists.28 actor is the person most aware that his assistance is necessary. because it is the closest to a general liability and is open to the influence of arbitrary bases for attributing duty. Clarendon Press. 127 (Oxford. In this justification. This pertains to instances when a person has not volunteered to perform a duty. obligations can arise in ways other than through a voluntary act.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. such as the obligation to compensate for accidental harm for which one is at least partly responsible.. The duty may be even seen in the nature of the act of a good Samaritan. Mead cites the essay ‘Nécessité Oblige’ by Tony Honoré. 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. 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. obligations to compensate the aggrieved parties for wrongs done by family or associates. (b) he or she is the most capable to perform the duty. nor did he perform any act that incurs such duty for him. 53 54 Mead. op cit. citing ‘Nécessité Oblige’ by Tony Honoré. obligations to restore property transferred against one’s will. p. and obligations of restitution in instances of non-voluntary enrichment. p. and there is a necessity for the performance of such task. 170. 169 Ibid.54 According to Honoré.. An obligation may also arise upon an individual who. and yet is considered to have a duty to act. 1987) .
though the latter may be unwanted. Honoré makes much sense when he states that these cases only arise because there is a necessity. 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. This duty is created by the dependency of the child upon his or her parent for the provision of his or her needs. 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. no objective or material benefit that accrues to the parent for the duty of providing for the child. that if the obligation were not imposed then the situation will result in more . from the pragmatic view at least. the person is aware that he is in the best position to perform the act and discharge the duty. It is for this reason that many legal experts argue that duties of this type should not be imputed upon the individual. the duty is imposed at times even against the wishes of the actor.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. Where a person voluntarily undertakes a duty or performs an act that knowingly incurs for him that duty. the actor often is not aware that he has incurred or is incurring the duty. However. These are the bonds that emanate from purely social relationships not susceptible of the usual considerations that govern contractual relationships. Most important of these relationships is that duty of care of a parent for his or her children. In the case of relationships. In fact. and takes it upon himself to do so. 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. The duties are also grounded in necessity.
. ‘in the last resort. . necessity makes law: nécessité oblige’. 171. As Honoré articulated it. p. in Mead.30 dire consequences to people who are among the most vulnerable in society. op cit.55 55 Honoré.
5. published by the Sentencing Guidelines Council on 9 February 2010. leading to the death of an individual.000. . but may increase by hundreds of thousands of pounds or even more. a police force.1 Corporate manslaughter by omission: Omissions by police officers due to failure to perform duty On 6 April 2008. Accessed 10 May 2011 from http://www. For the purpose of this law.1 of the CMCHA.57 Aside from the fine. a department or similar body listed in Sched.uk.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. SPECIAL ISSUES IN OMISSIONS Aside from the general issues already discussed. which will be seldom less than ₤100.gov. the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA) took effect. the organisation convicted of the crime of corporate manslaughter may be imposed additional penalty in the form of a remedial order.sentencing-guidelines. s. and a partnership or trade union or employers’ association that is an employer. a ‘relevant organisation” is defined as: a corporation. This is a judicial order that is made upon application of the prosecution specifying the terms in the application. 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.31 5. 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. 1(2) Sentencing Guidelines. The court shall 56 57 CMCHA.
the court may. and more frequently encountered. While not all deaths related to police activity are controversial. and lastly are deaths of persons 58 CMCHA. Furthermore. systems or practices regarding health and safety. It often happens that the driver of the vehicle pursued loses control of his vehicle and is consequently killed. which the relevant breach appears to indicate. where the road mishap was the result of a police pursuit of persons. police neglect may come in the form of failure to turn on the siren or the blue warning light. In this case. and the terms of the remedial order against the organisation. 1(1). at its discretion. or where other persons are killed because of the high-speed pursuit. 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. s. the amount of fine imposed. Another example would be police response to public order situations.58 Among the organisations relevant for the purposes of this law. than others. there are a few that tend to be more controversial. In the remedial order shall be stated: the relevant breach. including the details of the offence. 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. such as crowd control during high-profile sports tournaments. and any deficiency in the company’s policies. there is special interest in the case of the police force where omission of the requisite due care caused the death of an individual. order the convicted organisation to publicize the fact of its conviction. based on the representations by the prosecution and the evidence presented by both sides. 10 . as a consequence of which a pedestrian is killed. A third type of situation involves fatal shootings by policemen. s. any matter the court considers to result from the relevant breach and which appears to have caused the death.32 then specify the terms as it sees fit. as mentioned in CMCHA. Road traffic fatalities are an example.
they shall be treated in greater detail. there had been numerous incidences of neglect that had been noted in the conduct of the operations.33 held in police custody. safety and welfare of Jean harles de Menezes on 22 July 2005…I concluded that while a number of individuals had made errors in planning and communication. Acessed 10 May 2011 from http://www.61 “for failing to provide for the health.cps. the police units pinned him down and repeatedly shot him in the head. when they followed a man whom they thought to be Osman.1. the Crown Prosecution Service ruled out murder or manslaughter charges against individual officers who participated in the shooting. regarding police communication. Stephen & Moran. 2010] 74(4) Journal of Criminal Law 358-381. 17/07/2006. CPS Statement: Charging decision on the fatal shooting of Jean Charles de Meneses. believing their suspect to carry explosives. The police were conducting surveillance operations on the residence of suspected bomber Hussain Osman. Despite the grave error made in identification. due to insufficient evidence.59 Since these last two types are the more common types of criminal liability due to omission or neglect of duty.1 Fatal shootings attributable to negligence. 5. operations and actions taken. De Menezes. no individual had been culpable to the degree 59 60 61 Griffin.uk/news/press_releases/146_06/ On the duties of care owed to non-employees. and the cumulative result was the tragic death of Mr. Because of this. 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. at 363. At the Stockwell tube station. a Brazilian legally residing in London and who had no connections to the bombings. 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. the Metropolitan Police force was found guilty of breach of sections 3 and 33 of the Health and Safety at Work Act 1974.’ [Aug.60 However.gov. . but was in reality Jean Charles de Menezes.
Griffin & Moran. ordinarily. comes with the suspicion of the excessive and improper use of restraint or control. therefore.uk/2/hi/uk_news/england/humber/4848238. The problem is that management 62 63 64 65 CPS Statement. op cit. Alder was 37. was particularly controversial because the findings of the Independent Police Complaints Commission’s report attributed “unwitting racism” to the officers involved.co. The death of an individual. Ordinarily.”62 The penalty imposed on the police force was a fine of ₤175. the directing mind is embodied by its director/s.  AC 705. it becomes necessary to link the act of the individual employee through the chain of command to the directing mind. ‘Police condemned over man’s death’.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. however. . in the case of involuntary manslaughter.. p. The four officers were found to be guilty of the “most serious neglect of duty. Ltd. he is usually presumed to be safe.2 Custodial deaths attributable to negligence. or poor monitoring of prisoners who are intoxicated or mentally disturbed. Ltd. 27 March 2006.63 One case in 1998.34 necessary for a criminal offense. black. while the four accused stood chatting nearby.1. that of the death of Christopher Alder. cases where people die in police custody are surrounded with controversy because when a person is detained under process of law. Accessed 10 May 2011 from http://news. 5.000 with ₤385.000 legal costs.stm Lennard’s Carrying Co..bbc.. op cit. The identification principles hold that a corporate body is personified by its directing mind65.1.”64 5. 364 BBC News. v Asiatic Petroleum Co. and died face down in a pool of blood in a police custody suite. Thus.
It is also thought to constitute a measure of compliance with international law. op cit. 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. 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.35 structures are so complicated and orders disseminated so indirect that often. the prosecution of a police force for manslaughter often fails to prosper. 3rd Report 2000-2005. at 68. under the common law.66 Therefore. resulting in an injustice to the relatives of the fatality by police neglect. ‘Lost on the Way Home? The Right to Life in Northern Ireland’ (2005) 32 Journal of Law and Society. at 13-15. to establish a system of “appropriate enforcement. not normally open to technicalities that would impede justice in majority of the cases. and falls short of the fulfilment of its obligation under Article 2. HL 15-1/H 137-1. v Nattrass  AC 153. Joint Committee on Human Rights. Griffin & Moran. Therefore the CMCHA is not sufficient to meet the requirements of Article 2 of the ECHR. J. C & Keenan. 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. by analogy Bell. 1. under closer study. Deaths in Custody.68 However. it is difficult to fix the criminal liability to the corporate director due to misinterpretation and abuse by lowerranking officers.” this being only partially developed. vol.. it is apparent that what the CMCHA puts in place is a system of proper examination. at 361 .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.69 66 67 68 69 Tesco Supermarket Ltd.
doctrine relied upon as a source of duty to act. through the International Court of Justice.2 Liability for omission in international criminal law Duttwiler70 explored the application of omission as a source of criminal liability in international law. Vol. that Duttwiler excluded its application in his study. creating a venue for greater participation for individuals as either those seeking redress or those being brought to justice. 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. individuals had not been deemed proper subjects of international law. Michael. This is a novel approach. What needed 70 Duttwiler. and despite this did not intervene in their actions. such as in the case of military troops in a war or armed conflict. the doctrine has already been thoroughly developed and presents little controversy. This concept stresses that a superior is responsible for the actions of his subordinates. DOI: 10. Clearly. human rights law and crimes against humanity have taken on a more robust application in international law. At the same time. However. if not the most common. superior responsibility is an important. p1-61.1163/157181206777066745 . 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. Because of these developments. there has been increasing reliance on a particular principle as a source of liability for omission. since until the Nuremberg trials of post-World War II. 6 Issue 1.“Liability for Omission in International Criminal Law.36 5. however. only states and international organisations. there has been increasing development towards the regulation of acts of individuals in the international legal system. either to punish or prevent further continuation of these acts. and the omission of which persons may be held criminally liable under international criminal law.” (Jan 2006). After World War II. which is the doctrine of superior responsibility.
The study arrived at the conclusion that. which regards the human conduct of omission as action. presuming that a legal duty to act exists. 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. Under the Rome Statute of the ICC. despite the absence of case law on the matter. After a wide scan of treaty provisions and agreements. the breadth. scope and incidences of such are not very substantial. will be largely from the basis of an ethical or moral point of view. Largely. however. it is generally held that there are no limitations to the application of liability for omission should the proper case for it emerge. 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. and is expected to be welcomed by the Member States. 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. which forms the theoretical foundation for holding a perpetrator liable for omission. It is believed that there will be no difficulty for the ICC to apply the general treaty provision on omission. While the legal principle exists in theory and statute. whether or not that particular jurisdiction recognises the principle of commission by omission.37 to be determined was the existence of a general norm of liability for omission of duties that may exist in international criminal law. should it materialise. with regard to perpetrators from any jurisdiction. it determined that there is a general principle of law in art. while international law does admit of the application of omissions as a source of liability. . the application. the study arrived at only one such treaty provisions of more or less relative significance but of limited scope. 38(1)(c) ICJSt. Other than this.
however. There is likewise general acceptance of general duties that are expected of citizens and members of society. save for the cases where the duty to act is most apparent and the consequences for omission the most severe. ‘The Scope of Criminal Liability for Omissions’ (1989) 105 LQR 424 . Andrew.38 6. on different theoretical premises. ANALYSIS 6. that society would recommend to be regulated by law and punished for culpability. One of the more perceptive and insightful comments came from Andrew Ashworth.71 In considering criminal law reform. 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 duties to other people are not as clear-cut and obvious. and omissions. They are founded. are clearly defined (as was earlier mentioned in omissions created by statute). The ‘conventional view’ holds forth the position that criminal law should avoid as much as possible to impose liability for omissions.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. there are acts. Admittedly. While the duties towards the state. which duties should be strengthened by offences for omission. Ashworth explains two conflicting schools of thought. One is the ‘conventional view’ and the other is the ‘social responsibility view’. such as the payment of the correct amount of taxes and tariffs. against their will 71 Ashworth. however. 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. these views overlap and only differ as to their scope and extent. 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. Far from being polar opposites.
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 are in danger of being punished if they omit to perform this duty. while social responsibility advocates do not adhere to any limitation except that conveyed by reason and the circumstances. there is disagreement as to what constitutes omission for which liability is imposed. however. there may be a need to impose criminal liability upon those who omit the performance of the duty to act. the coercive power of criminal law . At times. accidents and other unforeseen events where the lives of people are endangered. The idea is generally acceptable to most people that there will be circumstances that would call for the obligation to help others. even where voluntary consent to do so has not been construed. as in the case of disasters and natural calamities. and where the severity of the situation may call for it. and in the end the fixing of culpability would often be based on social values than legal requisites.39 and at times without their knowledge. Proponents of the social responsibility view. are open to the idea that at some level. For the conventional view. Fundamentally. Seldom are such issues a matter of black and white. 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. oftentimes they entail the weighing of circumstances and consequences. 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. and not performing an act which results in the same harmful consequences. However. because the duty itself is so vague and seemingly arbitrary. the difference between the two views is that conventionalists stress the minimalist condition that liability should be imposed on omissions of voluntarily assumed duties.
omissions are viewed as the exception rather than the rule. would tend to tolerate omissions as more than exceptions. 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. This is indicative of a moral distinction we subconsciously make between a positive wrongful deed and a passive wrongful omission. The conventional view is strongly supported by the arguments of Williams72. 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. Glanville. p. The first assertion. To illustrate. 87 .73 Williams 72 73 Williams. according to Williams. it is usually more morally despicable for a son to take a dagger and stab his father to death without provocation. while not inconsistent with these views. for wrongful action is different from that of wrongful inaction. than for a son to neglect to feed and care for his father until the latter eventually expires. and that failure to perform this obligation will be meted a corresponding penalty. The second is that condemnation.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. Under this theory. ‘Criminal Omissions – The Conventional View’ (1991) 107 LQR 86 Ibid. with stress on ‘active’. the positive act being deemed the more condemnable of the two. Social responsibility. 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. but as part and parcel of the legitimate exercise of coercive power of the state upon the individual. and tolerance. and certainly not to the extent that failure to perform is punished. where both have the same eventual result. is that society’s most urgent task is the repression of active wrongdoing. who adheres to the position that individual rights should be upheld and the intrusiveness of the law limited.
was construed to be the doctor’s omission for which he and the parents were prosecuted for manslaughter. while an omission may not be. However.74 While the theory about omissions appears sufficiently clarified. op cit. then the act of standing by and watching a person get killed is tantamount to 74 75 Williams. then that may be permissible. but where a person stands back and allows another to die. however. both Jehovah’s Witnesses. The time is often too short for the doctor to appeal to the courts.75 6. which are within the purview of the state to punish. 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. it becomes necessary to more closely analyse the effects of a positive act and an omission. thus there is a need to decide whether or not to act without consent. it is never acceptable for one man to kill another without provocation. and differentiates those omissions that clearly run contrary to the public interest. R v Senior  1 QB 283 . This is with reference to R v Senior where the refusal of the child’s parents. to consent to a vital blood transfusion for their child and therefore leading to his death. it may be necessary for the doctor to make a judgment call where a medical emergency threatens the patient’s life. where the results of both are the same.41 qualifies. in practice there are cases which by their nature are still too difficult to call. if one were to look at the omission as act.2 The Act-Omission Paradox When considering the difference between acts and omissions as sources of liabilities. In the case of the provision (or omission) of medical treatment where the patient or his guardian does not give his consent. As illustration.
42 permitting the death of this victim. an act that is impermissible but allowed to happen makes the act of allowing itself impermissible. Its cornerstone is deontological ethics. Deontology closely relates the ethic of the act with the duty to abide by what is right or permissible. but allows the victim to be killed. or act-omission doctrine. It is an approach to the study of ethics which views the morality of an act based on its relationship to duty. the act of allowing something to happen. Firstly. may eventually lead to a death. from the Greek root word deon. 104 Issue 2. This philosophical reasoning goes into the core of the rightness or wrongness of an act (omission). Two Act-Omission Paradoxes Proceedings of the Aristotelian Society. Apr 2004. he does not kill the victim. the duty referred to is the duty not to let an immoral act happen. This is not so far fetched where a person may initiate an action that. and in doing so condones the killing. This school of thought views omissions as acts. that is.76 This type of reasoning is the crux of the deontological doctrine AOD. This train of thought posits that ‘letting’ an offence take its course when one is capable of preventing or intervening is tantamount to forsaking one’s duty to abide by what is ethical or right. In such instances a paradox exists. Therefore. . because it is a betrayal of the duty to forbid an impermissible act. though. without directly causing a death. The qualifications of this type of reasoning are obvious. p147-162. If the act allowed to happen should not be permitted. Vol. In this sense. he or 76 Persson. then the omission constitutes a culpable act. and to an extent provides a perspective from which to view the culpability that may be attached to an omission. meaning ‘obligation’ or ‘duty. the person is aware that an impermissible act is about to happen. not the legal sources of duty discussed earlier. Ingmar.’ and logos meaning ‘study’. Second. that an offence is at once permissible and at the same time impermissible. The person who omits to act to prevent a killing allows the offence to take place.
that the omission of the act that complies with the duty is not justified. . In other types of omissions. but is assumed as a duty of the moral person who abides simply by what is right. The only instance. therefore.3 Summary The main. volition or relation. and if the omission of that duty may be penalised according to the tenets of criminal law theory. This is the only possible solution to avoid the act-omission paradox. These involve no controversial issues. it is the omission to intervene that allows the act to succeed. The general concept is that omission is the absence of action.43 she is in a position to intervene in such a way as to possibly thwart or frustrate the act. ongoing debate is whether or not it is appropriate for criminal liability to attach to omissions. The duty exists not by virtue of statute. it has been stated that it is necessary to identify the duty of care that is reasonably expected to be fulfilled. where such liability should attach is in the case of statutory duties the omission of which is clearly precluded by law. then the person who omits to intervene should not be penalized. That there is a harm done and that the omission took place are matters of fact and may not be disputed. In these instances. The point of controversy lies in the nature and source of the duty. and assuming it is. for which the individual may be held accountable or liable. it requires only straightforward compliance to avoid the consequences. contract. 6. under which circumstances it should be done. The presence of all of these three conditions shall allow for the omission to be seen as a culpable act. Finally. which are in the nature of mala prohibita. compliance is mandated and the penalty is specified. and that the omission resulted in harm done to another. and since the absence of action could not give rise to harm that is not already inevitable.
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. which in most cases discharges the duty. The individual is also generally aware that if he or she omits to perform the duty voluntarily assumed. in which case the court may rule on the matter.44 The study outlined the sources of duties. Therefore.g. where the court overrides the patient’s refusal or that of his parents/guardians. and do not constitute a hard and fast categorisation. public or official duties Duty to avert a danger created by defendant. where the patient or his parents are insistent upon the treatment but which the doctors feel is not in the patient’s best interest. There are exceptions to this exception. 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 specific type of duty depends upon the particular circumstances under which such were incurred. The reverse is also true. Examples of this abound in instances where medical treatment may be refused by the patient. however. . Where a duty has been voluntarily assumed through an undertaking or by performance of an act that necessarily incurs a duty. and the typology of these sources. Duty to provide medical treatment (and exempting circumstances) Duty arising from special relationships (e. the individual is generally assumed to be aware of the implications of his or her voluntary assumption of the duty. to children and wards) The classification into typology is based on the most common types of such duties. 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.
as to whether an individual who did not wilfully accept an obligation not mandated by law. The second allows for liability to attach to all types of omissions. and aware that his failure to intervene would result in harm. the act-omission. and may not even be aware that he is charged with it. in which case the doctor faces the jeopardy of manslaughter charges. and either applies treatment or withholds it. since the duty is presumed on the basis of the relationship of the person and the individual in need of assistance. provided the person was aware of his duty. the individual did not voluntarily assume the duty. This is where the moral dilemma arises. but qualified as to the harm caused. may be held criminally liable by a failure to perform said duty. The first leans more towards limiting the liability attached to omissions to those duties voluntarily assumed. there is the highly controversial situation where an emergency exists and the patient’s death is imminent of treatment is delayed. because of the lack of time. the evident nature of the duty and the severity of the consequence of omission. In such cases. and the patient dies or is harmed further. and may not even be aware of it. The dilemma may be addressed on several bases. although for expediency this study employed the minimalist-conventional view vis-à-vis the social responsibility perspective.45 Finally. makes a judgment call. in the case where the duty was justified without voluntariness. . The controversy arises where the doctor. deontological doctrine sees liability attaching to omissions because omissions are viewed as acts of dereliction of duty. The usual controversies arise where the source of the duty is based on some other justification without the volition of the individual. capable of intervening. but being detached from those duties without voluntariness. Finally.
They greatest number of omissions which should be punishable are those that are statutory in nature. . this study has arrived at the following paradigm by which to view the nature of omissions. CONCLUSION Based on the analysis conducted on the problem sought to be resolved.46 7. because in the case of statutory duties that have been omitted. That liability may attach to an omission in the absolute sense is a foregone conclusion. 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. and the criminal liability that attaches. the corresponding penal provisions are clear and the person who has omitted the duty may clearly and ethically be meted the corresponding penalty. their qualification on the basis of the type of duty omitted. because these are lawful obligations imposed with the knowledge of the individuals. indicative of their relative frequency as they are expected to occur in legal actions.
Generally. and therefore more appropriately the subject of regulation which may result in criminal liability. that is. As the level of voluntariness diminishes moving upward in the triangle. or the recklessness of the manner with which the duty had been abandoned. the more vigilant the state must be as steward of its people. public or official duties. 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. 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. These should further qualify the severity of the punishment that the court should apply to the case. 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. where the severity of the omission is greater and the beneficiaries of the protection of the duty are more vulnerable. the frequency of occurrences should also be gradually lessening. 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. to the type and degree of harm. the vulnerability of the victims. These are with particular application to parents of their children. 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. this does not mean that liability should not attach.47 Following should be those duties that are incurred due to contractual. However. so that the welfare of the weakest and least powerful may be protected. and are sometimes without their knowledge. . This does not apply to the factual antecedents of each case. Finally. While these may be considered as voluntary assumptions of duty as classified in the preceding table.
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. there is a need for these categories to expand to take into account the corporate liabilities that would attach to corporate manslaughter by omission. However. and in future developments of statutory omissions that may be promulgated in multilateral agreements in international law. a new development in the law. . as may be seen in the special issues presented in the paper.48 The typology of duties presented here is based upon personal liability for omissions of personal duties owed to other individuals. Presently. although resort to this appears to be a distinct possibility in the future.
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