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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.
Ordinarily there can be no liability that may attach when the accused has not done anything. Criminal Law. p. Simply stated. & Hogan. the mens rea. a crime involves doing an act. 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. including intent or recklessness. Omission of an act. which is comprised of the prohibited act. is a failure to act. Ordinarily. or even counted upon to. 1 Smith. by its two essential elements: first. However. in criminal law. not doing anything does not ordinarily cause any liability for the individual. 10th ed. The actus reus has also been described as the external manifestation of the offence. and second. the actus reus. and contemplates everything about the crime except the internal mental state of the accused.C. for the purposes of analysis. consequence or state-ofaffairs. it means not doing (or omitting) to do an act when one is obligated by law to do it.5 2. which refers to any element that assigns fault to the accused. J.1 For most criminal offences. Oxford University Press. and upon which liability is imposed. 30 . in certain cases. do something. omission. however.2 Definition of “omission” Omission. 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. a different significance attached to the fact that the accused has not done anything when he was expected to.. comprises the actus reus that give rise to criminal liability. and to distinguish it from the positive criminal act. There is. 2. Brian. 2.
9 Such cases would be best approached by evidencing a set of incidents or events instead of just that single event. In that case.8 and similar offences.5 Humanitarian international law6 has likewise created several specific duties 2..7 assault and battery.e.4 or because such action created a risk of harm for another. 2 3 4 5 6 7 8 9 Ashworth. may only be committed as positive acts. in order to show a state of mind or a habitual act where the mens rea becomes apparent. For instance. the failure of a landlord to replace his tenant’s lost key could be viewed as a positive ‘act’ of harassment against a tenant. are themselves construed as acts. for which the mens rea is appreciated. 4 Fagan v Metropolitan Police Commissioner  1 QB 439 Yuthiwattana (1984) 80 Cr App R 55 . A. while they are omissions to perform certain acts. such as a parent or guardian to a minor child2. There is also a confusing category of offenses that.3 Distinguishing acts from omissions There are some offences which. the omission would be interpreted as an ‘act’ i. or a physician to his patient. The obligation to act arises because of the status of one person to the other.3 The obligation also may materialise because of an earlier act or conduct of the person. Examples are acting to prevent the apprehension of an offender.  QB 354. and not as omissions. by their nature. s. the actus reus. R v Miller  2 AC 161 Contrary to the Criminal Law Act 1967. ‘The Scope of Criminal Liability for Omissions’ (1989) 105 Law Quarterly Review 424 at 424 R v Instan. the failure to fulfil this obligation is what constitutes an omission within the contemplation of criminal law.  1QB 450 Airedale National Health Service Trust v Bland  a All ER 821 R v Stone & Dobinson. such as committing to or accepting to take care of that other person.6 when there is a duty to perform some positive act.
P.4 Omissions as a source of liability Mead points out the necessity of determining the causal status of omissions. 149. likewise. Jul 1. amounting to an assault on the officer.J Fitzgerald. and appeared to take his time in moving the vehicle off the distressed constable’s foot. A case is usually cited that illustrates the difference between act and omission. The crucial distinction. as shown in the example above of the landlord’s omission to provide a tenant’s key. p.7 The distinction between acts and omissions is confusing. the defendant was noticeably slow in restarting his car’s engine. The reason that the causal status is so important is that it goes to the core of criminal liability. In Fagan v Metropolitan Police Commissioner. . In the course of doing so.11 This refers to the causal connection between what is deemed an ‘omission’ and the harm or injury it is supposed to have caused. Vol. citing Jonathan Bennet. is the presence (or absence) of a reasonable expectation that a person will behave a certain way because of the circumstances. John Harris. 2. to the harm or endangerment of another.10 the defendant was asked by a police officer to draw his vehicle up to the kerb. the defendant was held guilty of omission to move the care immediately. A person should not be held responsible for something he did not do (or. Douglas N. and not the omission to move the car quickly off the foot. 10 11 Fagan v Metropolitan Police Commissioner  1 QB 439. 1991. Geoffrey ‘Contracting into Crime: A Theory of Criminal Omissions’ Oxford Journal of Legal Studies. When asked to immediately move the car off the police officer’s foot. otherwise it is this act that would have been cited as constituting an assault. and others. the defendant halted his car with one wheel on the foot of the officer. something he did) if it did not redound. 11. The ruling apparently took the initial positive act – that of the driver pulling his vehicle onto the foot – as unintentional. Issue 2 . it seems. DC Mead. Husak.  3 All ER 442. Because of his intentionally delayed response. whether wholly or partly. [ 1968] 3 WLR 1120.
without drowning. 12 13 Leavens. It is also possible that the child may have gone swimming and had been distressed. But it is likely true that the child may have gone swimming many times before. Ibid. Whether the actor (or non-actor) is there or not. without the participation nor fault of the offender held guilty of omission. observers believe that this inquiry is nearsighted and unrealistic.13 In such an occurrence. In most cases. (1930). 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. that would produce the end result of harm or endangerment. because the presence of a life guard or his action in the execution of his duties is normally expected in this situation. the logical cause is that the child went swimming. However. Arthur. Omission is simply ‘not acting’. p. or even the logical cause in the normal course of events. the inevitable consequence will happen. and the eventual harm. which means that the nonactor did not cause it.12 Critics of this line of reasoning observe that it is limited to a particular conduct and sequence of events. Thus. The reasoning traces the effect to the cause in an unbroken line of logic to the initial cause. for instance. ‘A Causation Approach to Liability for Omissions’. Leavens explains that in the case of a child drowning. 150 .8 The problem with omissions is creating the connection between the failure of a person to act. 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. The search for a cause of an occurrence is limited to seeking an explanation for why something happens. the absence or inaction of a life guard may have been an intermediate cause. Therefore. the supposed cause is not the only determinative event. in the instance that the child had actually drowned.. the cause of harm is not only attributed to the positive act that had set in motion the course of events. but was assisted by a life guard before any serious harm had happened. meaning that there is already set into motion a chain of events. 30 Philosophical Quarterly 1.
the first attribute appears to be that the action should be reasonably expected – that is. 14 Leavens. such persons may not be held liable for the drowning. As earlier mentioned. 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. and that their failure to rescue the drowning child resulted in the latter’s death. Because the duty did not exist. This is evident in the example given. op cit. p. As nearly all jurisprudence states. The fact that omissions means ‘not doing’. and the omission of that action by the actor is in breach of the regular expectation. .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. 150. It may be possible that other good swimmers may have been in the immediate area. given the likelihood of the impending harm. 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. that the person who may be held liable for the drowning child is the life guard. While an omission did occur in the ordinary sense. 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. They had no duty to vigilantly oversee the situation at the swimming area to search for persons in possible peril. 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. the next difficulty is determining which omissions may be the source of liability.14 Going one step further. that the expected action from the designated actor should be actually relied upon as a regularity.. 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.
in the study of omissions.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.
Jurisprudence has specified that there is a duty to act where a close family relationship exists. The essential elements of involuntary manslaughter by breach of duty includes: (1) proof of the existence of the duty. Spring 98.’ Journal of Criminal Law. was generally immune from prosecution in the case of involuntary manslaughter prior to the CMCHA. 25 Issue 2. in particular. (1973) QB 702 R v Stone & Dobinson (1977) QB 354 .17 where there is voluntary assumption of responsibility. and (3) gross negligence which the jury considered justified a criminal conviction.15 Even police forces. M J ‘How Making the Failure to Assist Illegal Fails to Assist: An Observation of Expanding Criminal Omission Liability.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. (2) breach of that duty causing death. (1994) HL R v Lowe. constitute a duty to act.18 and where a dangerous situation is created by the individual who incurs the liability. p385 R v Adomako. Different theories have been proposed in trying to determine what situations. Vol.11 3. 15 16 17 18 Stewart. SOURCES OF DUTY AS BASIS OF OMISSIONS 3.16 Criminal law turns on the established principle that liability for an omission shall be incurred only where a duty to act exists. for lack of legal status as an organisational or corporate body.
3 Failure to prevent or report criminal conduct Since the offence of misprision of felony was abolished in 1967.londoninternational. Another example would be road traffic laws that require motorists who are involved in road accidents to stop. Safety and Environment Super Series. otherwise they would be designated as hit-and-run offenders. Accessed 10 May 2011 from http://www. impose specific duties on certain individuals that obligate them to act in a certain way. since the scope of the duty will also be clarified. However. at p. 4th edition. the failure to provide a breath sample when asked to do so would also incur liability for the offender. also. For instance. then the officers of that organisation may be held criminally liable. ‘Chapter 4. Oxford: Elsevier Science (2003).12 3. This type of omission has the advantage of being clearly identified and described. misprision of 19 20 Institute of Leadership and Management. and the scope of the compliance delimited.’ University of London External Programme. then the individual who fails to comply will be held criminally liable for his or her failure to act.19 In this type of omission. as well as other provisions of law. Actus Reus: Omissions. A person is therefore certain where he or she transgresses the statute. University of London. it is not now an offence for an individual not to report crimes committed by other persons.ac. and specifically state that if such acts are not complied with.20 3. the actus reus of which is also defined in the failure to comply with it. Likewise. 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. if an organisation does not comply with its duties to observe the statutory health and safety regulations.uk/current_students/programme_resources/laws/ subject_guides/crim_law/criminal_ch4.pdf . 3. Managing Lawfully – Health. the duty to act is created by a provision of law.2 Statutes that impose a duty to act Several regulatory statutes.
have a duty of care to them because of that relationship. Three relationships shown here are those of a parent or guardian to a child in his or her care.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. to whom the individual has voluntarily committed to assist or care for. and an individual towards a person unable to care for himself or herself. in specific situations. More recent laws have likewise made it an offence to fail to disclose: personal knowledge about terrorist activities or funding for them.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. however. but that such may happen because of evidence of 21 Child and Young Persons Act 1933 . socially and morally. clothing and medical care. the fact that death occurred as a result of neglect does not. the offender may be prosecuted for manslaughter by gross negligence.13 treason is still in effect. and under it a person who fails to report an act of treason may himself be held criminally liable. but are not limited to these acts.section 1. 3. contractual. in such a way that the child suffers unnecessary suffering or injury to his health. or knowledge or suspicion of money laundering. Furthermore. . or official duties.21 Included in such care for the child are the provision of adequate food. Where such wilful neglect results on the death of the child. an individual towards other persons by virtue of his public. lead to a charge of manslaughter. in seeking to resolve a breach of the peace. it is also a common law offence to refuse assistance to a constable who calls for it. 3.
Accessed 10 May 2011 from http://www.14 intent to harm the child be means of such neglect.co. 22 23 24 R v Gibbins & Proctor.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). and died seventeen months later due to injuries sustained over a period of time.’ The Times.uk/tol/news/uk/crime/article5140511. an 18-year-old. or where the child who is above 18 years old still lives with his parents as dependent. However. However. Thus.ece . and may be held culpable. for which purpose a duty of care still exists between related persons even as adults. Baby P finally succumbed.24 These professionals are discussed in the next section under failure to discharge one’s contractual. November 12. perfectly healthy. 2008. a finger missing its top. and her parents are under no special duty of care for her. however. a broken back. 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. both by his mother and her live-in lovers who had histories of cruelty and child abuse. and not older offspring. R v Chattaway 17 Cr App R 7  Fresco. The statute covers only children below 16 years of age. he was subjected to constant abuse and neglect. daughter is considered of age and is ‘entirely emancipated’. Adam ‘After 17 months of unimaginable cruelty. It is also possible for a parent who deliberately starves a child to death to be liable for murder.timesonline. The baby boy was born on March 2006. to the point that they may incur criminal liability if they ‘neglect’ her fundamental needs. public and official duties. pending the results of investigation. he sustained eight broken ribs.23 The application of the law in the case of children was brought into sharp public focus by the case of Baby ‘P’. The body of the child was covered in bruises and scabs. 13 Cr App R 134 . There is no doubt that during the entire seventeen months that the child lived. due to studies or similar reason. 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.
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.4. reasoning that ‘D’ owed ‘V’ a duty of care which was breached.2 Contractual. In R v Adomako (1994) HL. Because such professionals were in a position to know the long-term abuse of the child. profession. (1994) HL . having regard to the risk of death involved. 25 R v Adomako. pending the conclusion of proceedings. the sad case of Baby ‘P’ was discussed. ‘D’ failed to observe that a tube inserted into the mouth of the patient ‘V’ had become detached from the ventilator. As a result. his contractual relationships and the obligations thereof. 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. According to Lord McKay LC. or contract. causing ‘V’s’ death and thereby amounting to gross negligence. but failed to act with the level or responsibility or duty attached to their position. but also with the professionals who attended to the child.”25 In the preceding section. The court held that ‘D’ was guilty of manslaughter by gross negligence. and subsequently died.15 3. or by reason of the responsibility to fulfil a public duty. public or official duties Liability may arise by virtue of a person’s official duties. ‘V’ suffered a cardiac arrest. 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. mentioning that culpability may not lie solely with the mother or her live-in lovers. they may.
Finally. Furthermore. are presumed to have the competence to easily detect that the child had been suffering unimaginable abuse and neglect. purportedly to cover up the bruises. Ward felt content to leave the child with his mother because she seemed co-operative and properly supported.27 Paulette Thomas. op cit. but who visited the boy only four times in six months since the mother cancelled four appointments. During the consultation. and that Dr. was the health visitor charged with Baby ‘P’s’ case. who reported ‘no concerns’. The record showed that the examination could not be completed because the baby was ‘miserable and cranky’. She spotted bruising on the baby’s face. two days prior to his death.16 These professionals included Sabah al-Zayyat. 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. . Ward visited the child for the first time 20 days later. the social worker assigned to the case of Baby ‘P’ on 2 February 2007. Ward visited Baby ‘P’ four days before his death. 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. Only his mother can stop him. Gilly Christou.’28 These professionals. Fresco. the public outrage 26 27 28 Ibid. she found the child sitting in his pushchair with chocolate covering his fact and hands. may conceivably held accountable for the death of the child. and on the basis of themselves omitting to exercise that due care in the discharge of their duties. Ibid. team manager at Haringey Social Services. Al-Zayyat failed to detect the broken back and eight broken ribs already sustained by the child. the consultant paediatrician who saw Baby ‘P’ alive. he does not seem to stop himself. trained in their specialised fields.26 Another professional was Maria Ward. Al-Zayyat thought the baby had a cold. which the mother explained was due to a squabble with an older child.
DOI: 10. Apr 2010. to the deterioration of the quality of life.2010. 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. this sometimes redounds to the denial of independence to and the exercise of discretion by the care recipients. 2005). Prior to the CMCHA. not just from the point of view of the patients and care recipients. the passage into law of the Corporate Manslaughter and Corporate Homicide Act 2007 was greeted with particular concern by care professionals. as of 2005 only five such cases have ended in convictions (Community Care. 3. Vol. Thus. illness or infirmity. The result is the exercise of excessive caution due to the perceived need to play safe.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. On the other hand.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. CMCHA compels investigators to look more intensely at the organisation’s work practices as mandated by senior management. Under this scheme. 74 Issue 2. but particularly from that of the care providers.4.74.1350/jcla. ‘Liability for Manslaughter by Omission: Don't Let the Baby Drown!’ Journal of Criminal Law. Catherine. incurs for himself a duty to fulfil that commitment.2. p163-179.627 . or until that 29 Elliott. Society is becoming progressively risk-averse. guilt attaches only if it may be proven that senior managers are grossly negligent in their individual capacities.
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. Fanny was known to them to be anorexic and unstable.18 responsibility is passed on to another. The court held that both accused were guilty of manslaughter by gross negligence. where accused Stone and Dobinson allowed Stone’s sister. The sister eventually died as a direct consequence. Although she initially was able to attend to her needs. 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. 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. 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. they failed to call for or provide medical assistance. in a condition of squalor and filth. In such a case. When it was apparent that she was in dire need of medical attention. or actually to have foreseen the risk but to have determined nevertheless to run it. Mere inadvertence is not enough…The defendant must be proved to have been indifferent to an obvious risk of injury to health. defendant Stone. to live in their home.”30 30 R v Stone & Dobinson (1977) CA . because of the duty of care they assumed when they accepted Fanny into their home. The fact of the relationship between Fanny and her sister. Fanny. her condition gradually deteriorated to the point where she became bed-ridden. her body full of bed sores. was merely incidental. This was the case of R v Stone & Dobinson.
was implied to have committed to look after her aunt’s welfare even as she benefited from her aunt’s bounty. Jul 1. Mead.32 In the Smith and Dobinson case. by voluntarily staying in her aunt’s home and partaking of her food and resources. However. the liability proceeded not from the fact of their blood relationship. she became unable to feed herself or even call for help. and there are no other people involved in the care of the victim. the defendant is apparently more capable and has a greater moral commitment than that of a third party. (2005) ISBN 0406977305. however. is responsible for the emergence of a dangerous situation. The aunt eventually died of neglect. by his own acts or fault. In this case. and her niece ‘D’ was held liable for manslaughter due to omission to exercise the requisite duty of care. 3. indicating that the victim is solely dependent upon the defendant for his care and welfare. Ownership of the residence. 11.31 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. but because ‘D’.19 Throughout the years. Issue 2 R v Instan. Eventually. the two accused were held responsible for the victim who lived in their house. 1 QB 450  . Smith and Hogan: Criminal Law.5 Duty to avert a danger that was created by defendant Where a person who. 1991. does not qualify the duty of care. Geoffrey ‘Contracting into Crime: A Theory of Criminal Omissions’ Oxford Journal of Legal Studies. ‘D’ neglected her. David. In R v Instan33 the accused ‘D’ was living with her aunt who was originally capable of caring for herself. 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. Vol. however. Oxford University Press. a duty to undertake reasonable measures to mitigate or eliminate the danger 31 32 33 Ormerod. the aunt eventually became ill and physically incapacitated due to gangrene in her leg. however. even as ‘D’ remained in her aunt’s house and eat her aunt’s food.
 UKHL 6 at para. 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. In the decision issued by the House of Lords on appeal. leading to damage and injury. the fire flared up and spread. On appeal. 2 AC 161  R v Miller.36 not because he intentionally started the fire. thereby causing damage estimated at ₤800. 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. Failure to perform such steps to alleviate the danger may be tantamount to gross negligence and give rise to criminal liability. Miller reiterated his defense that there was an absence of actus reus coincident with mens rea. 176 . Eventually. Upon waking and finding the mattress smouldering. conduct which consists of failing to take measures that lie within one's power to counteract a danger that one has oneself created.’ 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. until the reckless refusal of the accused to extinguish the flames.34 Miller was a homeless person who had been smoking a cigarette when he fell asleep on a mattress in a house.35 Miller was tried and convicted for arson. the person becomes liable. This ruling established that actus reus did not solely mean positive action.’37 This was the first articulation of what eventually came to called the ‘principle of supervening fault. sections 1 & 3. The starting of the fire and the 34 35 36 37 R v Miller. and that failing this. instead of trying to douse the fire or calling for help. but referred to the set of events that transpired from the moment the fire began. he instead moved to a different room.  UKHL 6 at para. In R v Miller. but because he failed to take any step to stop it or prevent it from becoming worse.20 may arise on his part.
oup. The appellants abandoned the victim.21 reckless refusal constituted the actus reus and the mens rea of the crime of omission.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. because said defendant failed to inform a police officer of the presence of a sharp object (i. Having decided that a duty of care did exist. however. if evidence existed upon which the jury may decide the existence.com/uk/booksites/content/0199275297/chap_1 .1 – Actus Reus: The external elements of an offence. In this ruling. of a duty of care. Crim LR 830  Oxford University Publishing (OUP). in R v Khan. EWHC 2908  (Admin). withholding treatment in the best interest of the patient.. The ruling therefore clarified that a duty to act may be created by one’s own actions. In this matter. In another case.40 the Miller principle was applied by the Court of Appeal to the context of manslaughter. first and foremost. Chap.org/ew/cases/EWHC/Admin/2003/2908.bailii.41 38 39 40 41 Under the Offences against the Person Act 1861 Director of Publi Prosecutions v Santa-Bermudez. These situations include refusal by the patient to consent to treatment. and practical and financial considerations. a needle) on his person. Accessed 10 May 2011 from http://www. the next step would have been for the jury to find out if the defendants had committed a breach of that duty of care. there are three special circumstances that qualify whether or not the doctor and the hospital would be incurring liability.e. omission of which may well lead to criminal liability. or absence. who thereafter died as a result of the overdose. the defendant was convicted of ‘assault occasioning actual bodily harm’38 when.html R v Khan. 3. resulting in the officer pricking and hurting himself on the needle. the appellate court that the trial judge should have determined.39 Finally. and omission to perform this duty cannot be blameless. Appellants provided the victim with heroin on which she inadvertently overdosed. Accessed 10 May 2011 from http://www.
the patient did have the capacity to manage his affairs. There are also. 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 . The presumption is therefore in the patient’s favour.1 Situation 1: Refusal by the patient to consent to treatment. In this case. carrying out the medical procedure despite the patient’s refusal. the opposite – that is. the doctor or hospital may not be held responsible for the omission of care deemed necessary for the patient. and that despite his schizophrenia he did understand and has made a clear choice on the basis of that understanding. purpose. Oftentimes. patient ‘C’. in the case of minors where parents have refused the application of medical treatment. The judge expressed satisfaction that the respondents failed to prove that the patient did not understand the nature. had been admitted to a secure hospital under the Mental Health Act 1983. In one such case. exceptions to the exception to the general rule. is itself the source of criminal liability. the judge appreciated that although schizophrenic. who is also paranoid schizophrenic. the doctors and the hospital are precluded from imposing upon him the medical treatment he refuses to consent to. In such cases. 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. Part III. The doctors had recommended that his gangrenous foot be amputated because it is a threat to his life. There are instances when the refusal of the patient to give his consent is pivotal in the decision. For instance. and effect of the treatment proposed. Patient ‘C’ then filed an action seeking the court for an injunction to prevent the amputation of his foot without his written consent. and was capable of understanding his condition. While ordinarily doctors and hospitals are under obligation to provide medical assistance to patients under threat of criminal liability. however.6. 42 In this case.22 3.
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). Hedley J. who needed to be ventilated during her first three months of life. In Re Wyatt.) . or more often the minor patient’s parents. their point of disagreement was whether or not Charlotte should once more be artificially ventilated if she stopped breathing.C.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. She fought off infection while her breathing and brain functions steadily deteriorated until the damage to her body was deemed irreparable. the doctors must not be remiss in providing the treatment. 2247. would insist on the performance of a medical procedure or treatment that the doctors or hospital would refuse to do or give. however. there are also instances when the reverse occurs – where the patient. (D) 294:  E. for to argue that the patient does not give his consent would contradict the pronouncement of the court. She appeared to be deaf.23 parents’ refusal.C. 3.43 or the refusal of the minor patient himself. and incapable of voluntary movement. The doctors took the position that she should no longer be ventilated artificially.45 in such cases. blind.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.46 Charlotte Wyatt was a premature baby with a birth weight of only one pound.H.H.6.R.  All E. The doctors and parents agreed that her chance of survival were not good.W. 693 (Fam.  E. as such would not be in her best interest.W. on the ground that such treatment would not be in the best interest of the patient.
there is at least a possibility of legitimacy. and where the doctor administers a lethal drug to actively cause the death of the patient. The types of controversies under this situation are numerous. therefore.48 47 48 Airedale National Health Service Trust v Bland  AC 789. hoped for a miracle. where such could be construed as against the best interests of the patient.47 In omission. therefore. or those babies born severely handicapped either mentally or physically. Charlotte’s parents. the omission may be lawful where such was the wish of the patient. The court sided with the paediatric team in deciding against artificial ventilation for the child. Where the doctor actively ends his patient’s life. such act is never lawful though the doctor is motivated by humanitarian ideals to end suffering. p. He drew the line between the cases where a doctor decides not to provide treatment to prolong life. where major or even repetitive surgery may be necessary to prolong life. and it is expected that prolonging Charlotte’s life in this manner was pointless. which is completely absent in the positive act. and therefore insisted that Charlotte’s life should be prolonged as far as possible. In another case. as such would be against her best interest. In cases such as these.24 painful to the patient. devout Christians. does not fall under category of criminal omissions. Lord Goff penned an instructional distinction between acts and omissions in the context of the patient’s best interest. the omission to perform one’s duty of care in the traditional sense. or even where the patient is incapacitated to give or withhold consent. 865 Re J  2 WLR 140 . it was observed that the best interest of the patient did not necessarily redound to his being kept alive at all costs. On the other hand. The question may likewise arise in the case of those individuals advanced in age to the point of being incapacitated. Where a doctor omits to provide care.
that all persons whose lives may be prolonged by major surgery or intensive (and invasive) cutting-edge medical procedures will receive it.6. Apart from the consideration as to whether treatment would be in the best interest of the patient. David. (2005) ISBN 0406977305 . Oxford University Press. For many. there is the need to determine the possible financial burden and the manpower limitations.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. Smith and Hogan: Criminal Law.49 49 Ormerod. It is simply not practical.25 3. from the point of view of available resources. the cost would not be worth the additional years if such would only prolong life marginally.
for which a person will be in need of assistance. and justifications unconnected with voluntariness. Second is that the promisor may in 50 51 52 Mead. by the volition of the actor.52 First reason is that the promisor will most likely be the person who is in the best position to know the peril. op cit. J. knowledge of incurring of liability.51 In this case. op cit. 4. The voluntary assumption by a person to do something is seen as a ‘positive justification’ for duty to exist. the person who promises to perform an undertaking is of such state of mind that the duty is created by positive justification. . however. that the promisor undertook the commitment because he or she was in the best position to perform the act. 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..1 First type: voluntary assumption of a duty. ‘Promises in Morality and Law’. Mead believes. 167-171 Raz. 930. He may understand the ways a person may be vulnerable to such dangers.26 4. The undertaking should be seen from the point of view as the ‘best position’ perspective. that the voluntariness of the undertaking as a source of duty should transcend the mere contractual performance of an undertaking that a promise entails. pp. (1982) 95 Harvard Law Review 916. The ‘Best Position’ argument is grounded on three reasons. 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. in a manner other people may not be aware of. Mead. Mead50 categorizes the sources of duty under three types: undertaking. p.
Thirdly. 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. 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. he feels himself equipped with the necessary skills and thus feels capable to perform the act. Some observers feel that there is an implicit assumption of a duty is insufficient. and that there must be a positive reason for the actor to be burdened with the duty.27 most likelihood be the most capable person to perform the act. These three reasons enhance the undertaking as more than mere compliance of a contractual obligation. 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. third persons who knew about the undertaking would think that they were not particularly helpful in its performance. and a more objective and positive act by which the actor may convey his/her acceptance of the duty. For instance. or at least he or she would be better able than a third party to competently discharge the duty. That is. when the actor performs a duty that presumes the incurrence of a duty means that (a) the .2 Second type: voluntary performance of an act that incurs a duty. This proceeds from the normal presumption that when a person volunteers to do a particular thing. 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. The concern is that the actor is not put in jeopardy without good reason. The second type of sources of duty is the voluntary performance of an act with the actor’s knowledge that by doing so. and for which the subsequent liability would be unjust for lack of notice. 4. the actor incurs a duty. On the other hand.
1987) . This is the case that invites the greatest controversy among legal theorists. because it is the closest to a general liability and is open to the influence of arbitrary bases for attributing duty.54 According to Honoré.53 4. and obligations of restitution in instances of non-voluntary enrichment..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. obligations to restore property transferred against one’s will. despite his unwillingness. obligations to compensate the aggrieved parties for wrongs done by family or associates. such as the obligation to compensate for accidental harm for which one is at least partly responsible. 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. is bound by duty to perform if he is the best qualified person to perform the task. 127 (Oxford. obligations can arise in ways other than through a voluntary act. (b) he or she is the most capable to perform the duty. op cit. p.28 actor is the person most aware that his assistance is necessary. citing ‘Nécessité Oblige’ by Tony Honoré. 53 54 Mead. in Making Law Blind. 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. Mead cites the essay ‘Nécessité Oblige’ by Tony Honoré. p. Clarendon Press.. This pertains to instances when a person has not volunteered to perform a duty. 169 Ibid. An obligation may also arise upon an individual who. nor did he perform any act that incurs such duty for him. and there is a necessity for the performance of such task. In this justification. The duty may be even seen in the nature of the act of a good Samaritan. and yet is considered to have a duty to act. 170.
Most important of these relationships is that duty of care of a parent for his or her children. 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. This duty is created by the dependency of the child upon his or her parent for the provision of his or her needs. 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. 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. the duty is imposed at times even against the wishes of the actor. Where a person voluntarily undertakes a duty or performs an act that knowingly incurs for him that duty. though the latter may be unwanted. the person is aware that he is in the best position to perform the act and discharge the duty. that if the obligation were not imposed then the situation will result in more . The duties are also grounded in necessity. In fact. It is for this reason that many legal experts argue that duties of this type should not be imputed upon the individual. and takes it upon himself to do so. In the case of relationships. However. The obligation to alleviate the harm or risk posed by the unintentional creation of danger is another such type of duty.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. Honoré makes much sense when he states that these cases only arise because there is a necessity. there is normally. These are the bonds that emanate from purely social relationships not susceptible of the usual considerations that govern contractual relationships. from the pragmatic view at least. no objective or material benefit that accrues to the parent for the duty of providing for the child. the actor often is not aware that he has incurred or is incurring the duty.
171. As Honoré articulated it. . necessity makes law: nécessité oblige’.55 55 Honoré.30 dire consequences to people who are among the most vulnerable in society. op cit. in Mead. p.. ‘in the last resort.
the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA) took effect. but may increase by hundreds of thousands of pounds or even more.1 of the CMCHA.gov. This is a judicial order that is made upon application of the prosecution specifying the terms in the application. a ‘relevant organisation” is defined as: a corporation. . SPECIAL ISSUES IN OMISSIONS Aside from the general issues already discussed. 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. and a partnership or trade union or employers’ association that is an employer.000. a police force. published by the Sentencing Guidelines Council on 9 February 2010.31 5. Accessed 10 May 2011 from http://www.1 Corporate manslaughter by omission: Omissions by police officers due to failure to perform duty On 6 April 2008.56 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.uk. leading to the death of an individual. s. The court shall 56 57 CMCHA. the organisation convicted of the crime of corporate manslaughter may be imposed additional penalty in the form of a remedial order. 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. a department or similar body listed in Sched. 5.57 Aside from the fine. which will be seldom less than ₤100.sentencing-guidelines. For the purpose of this law.
1(1). While not all deaths related to police activity are controversial.32 then specify the terms as it sees fit. including the details of the offence. In the remedial order shall be stated: the relevant breach. and lastly are deaths of persons 58 CMCHA. which the relevant breach appears to indicate. the amount of fine imposed. systems or practices regarding health and safety. Another example would be police response to public order situations. It often happens that the driver of the vehicle pursued loses control of his vehicle and is consequently killed. such as crowd control during high-profile sports tournaments. there is special interest in the case of the police force where omission of the requisite due care caused the death of an individual. any matter the court considers to result from the relevant breach and which appears to have caused the death. where the road mishap was the result of a police pursuit of persons. Road traffic fatalities are an example. at its discretion. police neglect may come in the form of failure to turn on the siren or the blue warning light. 10 . the court may. as mentioned in CMCHA.58 Among the organisations relevant for the purposes of this law. as a consequence of which a pedestrian is killed. s. The remedial order issued by the court shall specify steps to remedy those factors which caused the breach of duty that led to the death. In this case. and the terms of the remedial order against the organisation. order the convicted organisation to publicize the fact of its conviction. 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. A third type of situation involves fatal shootings by policemen. or where other persons are killed because of the high-speed pursuit. based on the representations by the prosecution and the evidence presented by both sides. s. and any deficiency in the company’s policies. there are a few that tend to be more controversial. than others. Furthermore. and more frequently encountered.
they shall be treated in greater detail. De Menezes. believing their suspect to carry explosives. Because of this. a Brazilian legally residing in London and who had no connections to the bombings. 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. Despite the grave error made in identification. 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. regarding police communication. due to insufficient evidence.gov. At the Stockwell tube station. at 363. 2010] 74(4) Journal of Criminal Law 358-381.uk/news/press_releases/146_06/ On the duties of care owed to non-employees.cps. Acessed 10 May 2011 from http://www. the Crown Prosecution Service ruled out murder or manslaughter charges against individual officers who participated in the shooting.33 held in police custody. . the police units pinned him down and repeatedly shot him in the head.59 Since these last two types are the more common types of criminal liability due to omission or neglect of duty. CPS Statement: Charging decision on the fatal shooting of Jean Charles de Meneses. the Metropolitan Police force was found guilty of breach of sections 3 and 33 of the Health and Safety at Work Act 1974. Stephen & Moran. but was in reality Jean Charles de Menezes.61 “for failing to provide for the health. 5. 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.’ [Aug. no individual had been culpable to the degree 59 60 61 Griffin.60 However. The police were conducting surveillance operations on the residence of suspected bomber Hussain Osman. 17/07/2006. operations and actions taken. when they followed a man whom they thought to be Osman. and the cumulative result was the tragic death of Mr.1.1 Fatal shootings attributable to negligence. there had been numerous incidences of neglect that had been noted in the conduct of the operations.
that of the death of Christopher Alder. comes with the suspicion of the excessive and improper use of restraint or control. in the case of involuntary manslaughter. Griffin & Moran.34 necessary for a criminal offense. cases where people die in police custody are surrounded with controversy because when a person is detained under process of law. he is usually presumed to be safe. 27 March 2006. and died face down in a pool of blood in a police custody suite. 5.. the directing mind is embodied by its director/s. was particularly controversial because the findings of the Independent Police Complaints Commission’s report attributed “unwitting racism” to the officers involved. The identification principles hold that a corporate body is personified by its directing mind65.000 legal costs.co.”62 The penalty imposed on the police force was a fine of ₤175. ordinarily. however. or poor monitoring of prisoners who are intoxicated or mentally disturbed. The death of an individual. black. v Asiatic Petroleum Co. Ltd. it becomes necessary to link the act of the individual employee through the chain of command to the directing mind..  AC 705.uk/2/hi/uk_news/england/humber/4848238. Ordinarily.000 with ₤385. Accessed 10 May 2011 from http://news.bbc. ‘Police condemned over man’s death’. Ltd.1. while the four accused stood chatting nearby. op cit. . 364 BBC News. Thus. therefore.2 Custodial deaths attributable to negligence. The four officers were found to be guilty of the “most serious neglect of duty.stm Lennard’s Carrying Co.1.63 One case in 1998.3 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.. Alder was 37. The problem is that management 62 63 64 65 CPS Statement.”64 5. p. op cit.
and falls short of the fulfilment of its obligation under Article 2. 1. It is also thought to constitute a measure of compliance with international law.. Therefore the CMCHA is not sufficient to meet the requirements of Article 2 of the ECHR. 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. 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. v Nattrass  AC 153.69 66 67 68 69 Tesco Supermarket Ltd.68 However. not normally open to technicalities that would impede justice in majority of the cases.66 Therefore. HL 15-1/H 137-1. 3rd Report 2000-2005.35 structures are so complicated and orders disseminated so indirect that often. at 361 . Joint Committee on Human Rights. at 68. C & Keenan. it is difficult to fix the criminal liability to the corporate director due to misinterpretation and abuse by lowerranking officers. it is apparent that what the CMCHA puts in place is a system of proper examination.” this being only partially developed. under closer study. vol. Griffin & Moran. Deaths in Custody. 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.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. resulting in an injustice to the relatives of the fatality by police neglect. the prosecution of a police force for manslaughter often fails to prosper. by analogy Bell. at 13-15. J. ‘Lost on the Way Home? The Right to Life in Northern Ireland’ (2005) 32 Journal of Law and Society. to establish a system of “appropriate enforcement. under the common law.
6 Issue 1. the doctrine has already been thoroughly developed and presents little controversy. Vol. either to punish or prevent further continuation of these acts. However. The omission to do a deed is essentially a personal liability. there has been increasing development towards the regulation of acts of individuals in the international legal system.36 5. that Duttwiler excluded its application in his study. This is a novel approach. Because of these developments. DOI: 10.1163/157181206777066745 . such as in the case of military troops in a war or armed conflict. This concept stresses that a superior is responsible for the actions of his subordinates. and the omission of which persons may be held criminally liable under international criminal law. doctrine relied upon as a source of duty to act. pertaining to the actus reus and mens rea of an individual rather than a state.“Liability for Omission in International Criminal Law. p1-61. and despite this did not intervene in their actions. through the International Court of Justice. if not the most common. At the same time. which is the doctrine of superior responsibility. since until the Nuremberg trials of post-World War II. human rights law and crimes against humanity have taken on a more robust application in international law. individuals had not been deemed proper subjects of international law.2 Liability for omission in international criminal law Duttwiler70 explored the application of omission as a source of criminal liability in international law.” (Jan 2006). What needed 70 Duttwiler. After World War II. only states and international organisations. creating a venue for greater participation for individuals as either those seeking redress or those being brought to justice. Clearly. there has been increasing reliance on a particular principle as a source of liability for omission. superior responsibility is an important. however. Michael. 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.
which regards the human conduct of omission as action. the breadth. 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. The study arrived at the conclusion that. despite the absence of case law on the matter. While the legal principle exists in theory and statute. Under the Rome Statute of the ICC. presuming that a legal duty to act exists. however.37 to be determined was the existence of a general norm of liability for omission of duties that may exist in international criminal law. It is believed that there will be no difficulty for the ICC to apply the general treaty provision on omission. After a wide scan of treaty provisions and agreements. which forms the theoretical foundation for holding a perpetrator liable for omission. it is generally held that there are no limitations to the application of liability for omission should the proper case for it emerge. 38(1)(c) ICJSt. . 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. it determined that there is a general principle of law in art. whether or not that particular jurisdiction recognises the principle of commission by omission. Other than this. scope and incidences of such are not very substantial. the study arrived at only one such treaty provisions of more or less relative significance but of limited scope. should it materialise. the application. and is expected to be welcomed by the Member States. while international law does admit of the application of omissions as a source of liability. will be largely from the basis of an ethical or moral point of view. Largely. with regard to perpetrators from any jurisdiction. 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.
the duties to other people are not as clear-cut and obvious.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. 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. While the duties towards the state. Andrew. however. Ashworth explains two conflicting schools of thought. against their will 71 Ashworth. Far from being polar opposites. however. on different theoretical premises.38 6. ANALYSIS 6. these views overlap and only differ as to their scope and extent. Admittedly. One is the ‘conventional view’ and the other is the ‘social responsibility view’. there are acts. There is likewise general acceptance of general duties that are expected of citizens and members of society. 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. The ‘conventional view’ holds forth the position that criminal law should avoid as much as possible to impose liability for omissions.71 In considering criminal law reform. 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. save for the cases where the duty to act is most apparent and the consequences for omission the most severe. which duties should be strengthened by offences for omission. ‘The Scope of Criminal Liability for Omissions’ (1989) 105 LQR 424 . such as the payment of the correct amount of taxes and tariffs. and omissions. are clearly defined (as was earlier mentioned in omissions created by statute). One of the more perceptive and insightful comments came from Andrew Ashworth. They are founded. that society would recommend to be regulated by law and punished for culpability.
However. oftentimes they entail the weighing of circumstances and consequences. even where voluntary consent to do so has not been construed. At times. There is a moral distinction understandable to the common individual that it is one thing to perform an act that leads to harmful consequences. are open to the idea that at some level. while social responsibility advocates do not adhere to any limitation except that conveyed by reason and the circumstances. Seldom are such issues a matter of black and white. and in the end the fixing of culpability would often be based on social values than legal requisites. there is disagreement as to what constitutes omission for which liability is imposed. Proponents of the social responsibility view.39 and at times without their knowledge. there may be a need to impose criminal liability upon those who omit the performance of the duty to act. the difference between the two views is that conventionalists stress the minimalist condition that liability should be imposed on omissions of voluntarily assumed duties. 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. the coercive power of criminal law . Fundamentally. 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. For the conventional view. and are in danger of being punished if they omit to perform this duty. however. and where the severity of the situation may call for it. 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. and not performing an act which results in the same harmful consequences. as in the case of disasters and natural calamities. because the duty itself is so vague and seemingly arbitrary.
and that failure to perform this obligation will be meted a corresponding penalty. The conventional view is strongly supported by the arguments of Williams72. ‘Criminal Omissions – The Conventional View’ (1991) 107 LQR 86 Ibid. it is usually more morally despicable for a son to take a dagger and stab his father to death without provocation. The first assertion. would tend to tolerate omissions as more than exceptions. omissions are viewed as the exception rather than the rule. Social responsibility. but as part and parcel of the legitimate exercise of coercive power of the state upon the individual. and tolerance. To illustrate. 87 . than for a son to neglect to feed and care for his father until the latter eventually expires.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. according to Williams. Glanville. Under this theory. where both have the same eventual result. with stress on ‘active’. The second is that condemnation. the positive act being deemed the more condemnable of the two.73 Williams 72 73 Williams. is that society’s most urgent task is the repression of active wrongdoing. This is indicative of a moral distinction we subconsciously make between a positive wrongful deed and a passive wrongful omission. and certainly not to the extent that failure to perform is punished. for wrongful action is different from that of wrongful inaction. 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. who adheres to the position that individual rights should be upheld and the intrusiveness of the law limited. 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. p. 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. while not inconsistent with these views.
However. then that may be permissible. it is never acceptable for one man to kill another without provocation. which are within the purview of the state to punish. R v Senior  1 QB 283 . 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. but where a person stands back and allows another to die. thus there is a need to decide whether or not to act without consent. This is with reference to R v Senior where the refusal of the child’s parents. where the results of both are the same. it may be necessary for the doctor to make a judgment call where a medical emergency threatens the patient’s life. The act-omission doctrine implies that a positive act is always culpable.41 qualifies.74 While the theory about omissions appears sufficiently clarified. in practice there are cases which by their nature are still too difficult to call. both Jehovah’s Witnesses. op cit. if one were to look at the omission as act. it becomes necessary to more closely analyse the effects of a positive act and an omission.2 The Act-Omission Paradox When considering the difference between acts and omissions as sources of liabilities. however. while an omission may not be. then the act of standing by and watching a person get killed is tantamount to 74 75 Williams.75 6. The time is often too short for the doctor to appeal to the courts. to consent to a vital blood transfusion for their child and therefore leading to his death. was construed to be the doctor’s omission for which he and the parents were prosecuted for manslaughter. As illustration. and differentiates those omissions that clearly run contrary to the public interest. In the case of the provision (or omission) of medical treatment where the patient or his guardian does not give his consent.
or act-omission doctrine. and in doing so condones the killing. Deontology closely relates the ethic of the act with the duty to abide by what is right or permissible. This is not so far fetched where a person may initiate an action that. Two Act-Omission Paradoxes Proceedings of the Aristotelian Society. This philosophical reasoning goes into the core of the rightness or wrongness of an act (omission). p147-162. The person who omits to act to prevent a killing allows the offence to take place. then the omission constitutes a culpable act. an act that is impermissible but allowed to happen makes the act of allowing itself impermissible. not the legal sources of duty discussed earlier. If the act allowed to happen should not be permitted. Apr 2004. may eventually lead to a death. the act of allowing something to happen. though.42 permitting the death of this victim. In such instances a paradox exists.’ and logos meaning ‘study’. the duty referred to is the duty not to let an immoral act happen. 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. because it is a betrayal of the duty to forbid an impermissible act. 104 Issue 2. Therefore. he or 76 Persson. the person is aware that an impermissible act is about to happen. Its cornerstone is deontological ethics. but allows the victim to be killed. that is. . Vol. that an offence is at once permissible and at the same time impermissible. from the Greek root word deon. and to an extent provides a perspective from which to view the culpability that may be attached to an omission. It is an approach to the study of ethics which views the morality of an act based on its relationship to duty. he does not kill the victim. Firstly. Ingmar. Second. In this sense. The qualifications of this type of reasoning are obvious.76 This type of reasoning is the crux of the deontological doctrine AOD. meaning ‘obligation’ or ‘duty. This school of thought views omissions as acts. without directly causing a death.
which are in the nature of mala prohibita. 6. In these instances. compliance is mandated and the penalty is specified. and since the absence of action could not give rise to harm that is not already inevitable. it is the omission to intervene that allows the act to succeed. The only instance. This is the only possible solution to avoid the act-omission paradox.3 Summary The main. The duty exists not by virtue of statute. The presence of all of these three conditions shall allow for the omission to be seen as a culpable act. The general concept is that omission is the absence of action. under which circumstances it should be done. and that the omission resulted in harm done to another. That there is a harm done and that the omission took place are matters of fact and may not be disputed. that the omission of the act that complies with the duty is not justified. then the person who omits to intervene should not be penalized. and assuming it is. therefore. ongoing debate is whether or not it is appropriate for criminal liability to attach to omissions. The point of controversy lies in the nature and source of the duty. .43 she is in a position to intervene in such a way as to possibly thwart or frustrate the act. contract. and if the omission of that duty may be penalised according to the tenets of criminal law theory. Finally. volition or relation. it requires only straightforward compliance to avoid the consequences. it has been stated that it is necessary to identify the duty of care that is reasonably expected to be fulfilled. These involve no controversial issues. for which the individual may be held accountable or liable. but is assumed as a duty of the moral person who abides simply by what is right. In other types of omissions. where such liability should attach is in the case of statutory duties the omission of which is clearly precluded by law.
in which case the court may rule on the matter. . the resultant harm will be attributable to the failure to perform the duty. the importance and necessity of the performance of the act is known to him or her. The individual is also generally aware that if he or she omits to perform the duty voluntarily assumed. and do not constitute a hard and fast categorisation. Where a duty has been voluntarily assumed through an undertaking or by performance of an act that necessarily incurs a duty. 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. The reverse is also true.g. which in most cases discharges the duty. to children and wards) The classification into typology is based on the most common types of such duties. the individual is generally assumed to be aware of the implications of his or her voluntary assumption of the duty.44 The study outlined the sources of duties. where the patient or his parents are insistent upon the treatment but which the doctors feel is not in the patient’s best interest. An exception to these assumptions is when the duty may be construed to have expired or been discharged. Examples of this abound in instances where medical treatment may be refused by the patient. however. Duty to provide medical treatment (and exempting circumstances) Duty arising from special relationships (e. public or official duties Duty to avert a danger created by defendant. There are exceptions to this exception. where the court overrides the patient’s refusal or that of his parents/guardians. and the execution of the act is incumbent upon him/her. Therefore. and the typology of these sources. The specific type of duty depends upon the particular circumstances under which such were incurred.
The dilemma may be addressed on several bases. but qualified as to the harm caused. makes a judgment call. as to whether an individual who did not wilfully accept an obligation not mandated by law. because of the lack of time. provided the person was aware of his duty. and the patient dies or is harmed further. the individual did not voluntarily assume the duty. This is where the moral dilemma arises. in the case where the duty was justified without voluntariness. The controversy arises where the doctor. . but being detached from those duties without voluntariness. may be held criminally liable by a failure to perform said duty. since the duty is presumed on the basis of the relationship of the person and the individual in need of assistance. the evident nature of the duty and the severity of the consequence of omission. in which case the doctor faces the jeopardy of manslaughter charges. and aware that his failure to intervene would result in harm. there is the highly controversial situation where an emergency exists and the patient’s death is imminent of treatment is delayed. although for expediency this study employed the minimalist-conventional view vis-à-vis the social responsibility perspective. the act-omission. In such cases. 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. Finally. capable of intervening. and may not even be aware that he is charged with it.45 Finally. and either applies treatment or withholds it. and may not even be aware of it. The second allows for liability to attach to all types of omissions. The first leans more towards limiting the liability attached to omissions to those duties voluntarily assumed.
indicative of their relative frequency as they are expected to occur in legal actions. They greatest number of omissions which should be punishable are those that are statutory in nature. their qualification on the basis of the type of duty omitted.46 7. this study has arrived at the following paradigm by which to view the nature of omissions. . the corresponding penal provisions are clear and the person who has omitted the duty may clearly and ethically be meted the corresponding penalty. CONCLUSION Based on the analysis conducted on the problem sought to be resolved. 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. because these are lawful obligations imposed with the knowledge of the individuals. and the criminal liability that attaches. 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.
While these may be considered as voluntary assumptions of duty as classified in the preceding table. 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. so that the welfare of the weakest and least powerful may be protected. that is.47 Following should be those duties that are incurred due to contractual. the frequency of occurrences should also be gradually lessening. this does not mean that liability should not attach. These should further qualify the severity of the punishment that the court should apply to the case. public or official duties. This does not apply to the factual antecedents of each case. the more vigilant the state must be as steward of its people. Finally. and are sometimes without their knowledge. These are with particular application to parents of their children. and therefore more appropriately the subject of regulation which may result in criminal liability. 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. 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. Generally. As the level of voluntariness diminishes moving upward in the triangle. the vulnerability of the victims. 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. 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. where the severity of the omission is greater and the beneficiaries of the protection of the duty are more vulnerable. . or the recklessness of the manner with which the duty had been abandoned. However. to the type and degree of harm.
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. However. 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. Presently. there is a need for these categories to expand to take into account the corporate liabilities that would attach to corporate manslaughter by omission. a new development in the law. although resort to this appears to be a distinct possibility in the future. and in future developments of statutory omissions that may be promulgated in multilateral agreements in international law.
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