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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.
which is comprised of the prohibited act. Oxford University Press. Ordinarily there can be no liability that may attach when the accused has not done anything. 2.5 2. including intent or recklessness.C. which refers to any element that assigns fault to the accused. Criminal Law. There is. however. Brian. J. p. for the purposes of analysis. or even counted upon to. 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. Ordinarily.1 Elements of a crime A crime is generally defined. consequence or state-ofaffairs. However. omission.. it means not doing (or omitting) to do an act when one is obligated by law to do it.2 Definition of “omission” Omission. 30 . by its two essential elements: first. do something. the mens rea. and second. is a failure to act. and to distinguish it from the positive criminal act. and contemplates everything about the crime except the internal mental state of the accused.1 For most criminal offences. 1 Smith. the actus reus. Omission of an act. 10th ed. a crime involves doing an act. in certain cases. comprises the actus reus that give rise to criminal liability. & Hogan. not doing anything does not ordinarily cause any liability for the individual. Simply stated. a different significance attached to the fact that the accused has not done anything when he was expected to. and upon which liability is imposed. in criminal law. The actus reus has also been described as the external manifestation of the offence. the actus reus is comprised of a positive act the accused is alleged to have carried out. 2.
in order to show a state of mind or a habitual act where the mens rea becomes apparent.3 Distinguishing acts from omissions There are some offences which. Examples are acting to prevent the apprehension of an offender..e.3 The obligation also may materialise because of an earlier act or conduct of the person.4 or because such action created a risk of harm for another. For instance.8 and similar offences.5 Humanitarian international law6 has likewise created several specific duties 2.6 when there is a duty to perform some positive act. and not as omissions.9 Such cases would be best approached by evidencing a set of incidents or events instead of just that single event.  QB 354. for which the mens rea is appreciated. such as a parent or guardian to a minor child2. 4 Fagan v Metropolitan Police Commissioner  1 QB 439 Yuthiwattana (1984) 80 Cr App R 55 . ‘The Scope of Criminal Liability for Omissions’ (1989) 105 Law Quarterly Review 424 at 424 R v Instan. the actus reus.7 assault and battery. The obligation to act arises because of the status of one person to the other. such as committing to or accepting to take care of that other person. by their nature. the failure of a landlord to replace his tenant’s lost key could be viewed as a positive ‘act’ of harassment against a tenant. 2 3 4 5 6 7 8 9 Ashworth. are themselves construed as acts. In that case. There is also a confusing category of offenses that. may only be committed as positive acts.  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. or a physician to his patient. A. R v Miller  2 AC 161 Contrary to the Criminal Law Act 1967. the omission would be interpreted as an ‘act’ i. while they are omissions to perform certain acts. s.
something he did) if it did not redound. p. DC Mead. John Harris. Geoffrey ‘Contracting into Crime: A Theory of Criminal Omissions’ Oxford Journal of Legal Studies. and others.J Fitzgerald. Husak.  3 All ER 442.11 This refers to the causal connection between what is deemed an ‘omission’ and the harm or injury it is supposed to have caused. the defendant halted his car with one wheel on the foot of the officer. likewise.10 the defendant was asked by a police officer to draw his vehicle up to the kerb. Because of his intentionally delayed response. The reason that the causal status is so important is that it goes to the core of criminal liability. 10 11 Fagan v Metropolitan Police Commissioner  1 QB 439.4 Omissions as a source of liability Mead points out the necessity of determining the causal status of omissions. 149. the defendant was held guilty of omission to move the care immediately. 1991. . citing Jonathan Bennet. amounting to an assault on the officer. to the harm or endangerment of another. is the presence (or absence) of a reasonable expectation that a person will behave a certain way because of the circumstances. Vol.7 The distinction between acts and omissions is confusing. The crucial distinction. it seems. as shown in the example above of the landlord’s omission to provide a tenant’s key. the defendant was noticeably slow in restarting his car’s engine. In Fagan v Metropolitan Police Commissioner. Douglas N. The ruling apparently took the initial positive act – that of the driver pulling his vehicle onto the foot – as unintentional. A person should not be held responsible for something he did not do (or. and not the omission to move the car quickly off the foot. A case is usually cited that illustrates the difference between act and omission. 2. otherwise it is this act that would have been cited as constituting an assault. Jul 1. Issue 2 . 11. and appeared to take his time in moving the vehicle off the distressed constable’s foot. In the course of doing so. [ 1968] 3 WLR 1120. whether wholly or partly. When asked to immediately move the car off the police officer’s foot. P.
but was assisted by a life guard before any serious harm had happened. Thus. In most cases. for instance. and the eventual harm. However. the logical cause is that the child went swimming. that would produce the end result of harm or endangerment. ‘A Causation Approach to Liability for Omissions’. Therefore. 12 13 Leavens. p. Omission is simply ‘not acting’.. It is also possible that the child may have gone swimming and had been distressed. Leavens explains that in the case of a child drowning.12 Critics of this line of reasoning observe that it is limited to a particular conduct and sequence of events. 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.13 In such an occurrence. The reasoning traces the effect to the cause in an unbroken line of logic to the initial cause. meaning that there is already set into motion a chain of events. Whether the actor (or non-actor) is there or not. Ibid. without drowning. The search for a cause of an occurrence is limited to seeking an explanation for why something happens. without the participation nor fault of the offender held guilty of omission. which means that the nonactor did not cause it. But it is likely true that the child may have gone swimming many times before. the inevitable consequence will happen. 150 . the absence or inaction of a life guard may have been an intermediate cause. the supposed cause is not the only determinative event. 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. 30 Philosophical Quarterly 1. or even the logical cause in the normal course of events. observers believe that this inquiry is nearsighted and unrealistic. Arthur. because the presence of a life guard or his action in the execution of his duties is normally expected in this situation. (1930). the cause of harm is not only attributed to the positive act that had set in motion the course of events. in the instance that the child had actually drowned.8 The problem with omissions is creating the connection between the failure of a person to act.
14 Leavens. 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 expected action from the designated actor should be actually relied upon as a regularity. the next difficulty is determining which omissions may be the source of liability. given the likelihood of the impending harm. Given that omissions may be the cause of harm. The fact that omissions means ‘not doing’. This is evident in the example given. the first attribute appears to be that the action should be reasonably expected – that is.14 Going one step further. While an omission did occur in the ordinary sense. . such an omission is not open to criminal liability because such persons did not have the duty to act to save the drowning child.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. op cit. and the omission of that action by the actor is in breach of the regular expectation. As nearly all jurisprudence states.. 150. They had no duty to vigilantly oversee the situation at the swimming area to search for persons in possible peril. and that their failure to rescue the drowning child resulted in the latter’s death. It may be possible that other good swimmers may have been in the immediate area. such persons may not be held liable for the drowning. that the person who may be held liable for the drowning child is the life guard. 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. 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. p. As earlier mentioned. 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. Because the duty did not exist.
10 It is therefore necessary. in the study of omissions. to determine what statute and jurisprudence have identified as sources of duties the fulfilment of which is mandated by law. .
(2) breach of that duty causing death. Vol. p385 R v Adomako. M J ‘How Making the Failure to Assist Illegal Fails to Assist: An Observation of Expanding Criminal Omission Liability. (1994) HL R v Lowe. and (3) gross negligence which the jury considered justified a criminal conviction.’ Journal of Criminal Law. in particular. was generally immune from prosecution in the case of involuntary manslaughter prior to the CMCHA. Different theories have been proposed in trying to determine what situations.15 Even police forces.16 Criminal law turns on the established principle that liability for an omission shall be incurred only where a duty to act exists. 15 16 17 18 Stewart. The essential elements of involuntary manslaughter by breach of duty includes: (1) proof of the existence of the duty. for lack of legal status as an organisational or corporate body.11 3. constitute a duty to act. SOURCES OF DUTY AS BASIS OF OMISSIONS 3. (1973) QB 702 R v Stone & Dobinson (1977) QB 354 . Jurisprudence has specified that there is a duty to act where a close family relationship exists.17 where there is voluntary assumption of responsibility. Spring 98.1 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. 25 Issue 2.
3. Managing Lawfully – Health. the failure to provide a breath sample when asked to do so would also incur liability for the offender. the actus reus of which is also defined in the failure to comply with it. also.pdf . it is not now an offence for an individual not to report crimes committed by other persons. if an organisation does not comply with its duties to observe the statutory health and safety regulations. Likewise.uk/current_students/programme_resources/laws/ subject_guides/crim_law/criminal_ch4. and specifically state that if such acts are not complied with. the duty to act is created by a provision of law. 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. Accessed 10 May 2011 from http://www. However. then the officers of that organisation may be held criminally liable. then the individual who fails to comply will be held criminally liable for his or her failure to act. impose specific duties on certain individuals that obligate them to act in a certain way.12 3. University of London. misprision of 19 20 Institute of Leadership and Management. ‘Chapter 4. since the scope of the duty will also be clarified. A person is therefore certain where he or she transgresses the statute.’ University of London External Programme. as well as other provisions of law. Actus Reus: Omissions.ac.londoninternational.20 3. otherwise they would be designated as hit-and-run offenders. at p. Safety and Environment Super Series. Oxford: Elsevier Science (2003). and the scope of the compliance delimited.3 Failure to prevent or report criminal conduct Since the offence of misprision of felony was abolished in 1967. For instance.19 In this type of omission. Another example would be road traffic laws that require motorists who are involved in road accidents to stop.2 Statutes that impose a duty to act Several regulatory statutes. This type of omission has the advantage of being clearly identified and described. 4th edition.
to whom the individual has voluntarily committed to assist or care for. in such a way that the child suffers unnecessary suffering or injury to his health.4. but that such may happen because of evidence of 21 Child and Young Persons Act 1933 . but are not limited to these acts. or official duties. in specific situations.section 1.13 treason is still in effect. or knowledge or suspicion of money laundering. an individual towards other persons by virtue of his public. in seeking to resolve a breach of the peace. Where such wilful neglect results on the death of the child. Furthermore. 3. the offender may be prosecuted for manslaughter by gross negligence.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. More recent laws have likewise made it an offence to fail to disclose: personal knowledge about terrorist activities or funding for them. . lead to a charge of manslaughter. and under it a person who fails to report an act of treason may himself be held criminally liable. contractual. however. it is also a common law offence to refuse assistance to a constable who calls for it.21 Included in such care for the child are the provision of adequate food.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. socially and morally. clothing and medical care. Three relationships shown here are those of a parent or guardian to a child in his or her care. and an individual towards a person unable to care for himself or herself. 3. have a duty of care to them because of that relationship. the fact that death occurred as a result of neglect does not.
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. to the point that they may incur criminal liability if they ‘neglect’ her fundamental needs. he was subjected to constant abuse and neglect. an 18-year-old. due to studies or similar reason. November 12. and her parents are under no special duty of care for her. public and official duties. Baby P finally succumbed. R v Chattaway 17 Cr App R 7  Fresco. a finger missing its top.co. and not older offspring.timesonline. 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. However. daughter is considered of age and is ‘entirely emancipated’. However.14 intent to harm the child be means of such neglect. perfectly healthy. It is also possible for a parent who deliberately starves a child to death to be liable for murder. Thus. There is no doubt that during the entire seventeen months that the child lived. a broken back.23 The application of the law in the case of children was brought into sharp public focus by the case of Baby ‘P’. and died seventeen months later due to injuries sustained over a period of time. for which purpose a duty of care still exists between related persons even as adults. or where the child who is above 18 years old still lives with his parents as dependent. 22 23 24 R v Gibbins & Proctor.uk/tol/news/uk/crime/article5140511. however.’ The Times. 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. 2008. The baby boy was born on March 2006. Adam ‘After 17 months of unimaginable cruelty.ece . 13 Cr App R 134 . pending the results of investigation. he sustained eight broken ribs. Accessed 10 May 2011 from http://www. and may be held culpable. 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.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).
‘D’ was an anaesthesiologist in charge during an eye operation. public or official duties Liability may arise by virtue of a person’s official duties. Because such professionals were in a position to know the long-term abuse of the child. As a result. they may. 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. and subsequently died. pending the conclusion of proceedings. but failed to act with the level or responsibility or duty attached to their position.”25 In the preceding section. (1994) HL . In R v Adomako (1994) HL. According to Lord McKay LC. the sad case of Baby ‘P’ was discussed. The court held that ‘D’ was guilty of manslaughter by gross negligence.2 Contractual. profession. 25 R v Adomako. or by reason of the responsibility to fulfil a public duty. ‘V’ suffered a cardiac arrest. but also with the professionals who attended to the child.4. reasoning that ‘D’ owed ‘V’ a duty of care which was breached. his contractual relationships and the obligations thereof. be held criminally liable for their omission to observe the duty of care they were obligated to comply with. causing ‘V’s’ death and thereby amounting to gross negligence. ‘D’ failed to observe that a tube inserted into the mouth of the patient ‘V’ had become detached from the ventilator. mentioning that culpability may not lie solely with the mother or her live-in lovers.15 3. or contract. having regard to the risk of death involved. the conduct of the defendant was so bad in all the circumstances as to amount in the jury’s judgment to a criminal act or omission.
Fresco. Ward felt content to leave the child with his mother because she seemed co-operative and properly supported. may conceivably held accountable for the death of the child. was the health visitor charged with Baby ‘P’s’ case. Finally. She spotted bruising on the baby’s face. Only his mother can stop him. she found the child sitting in his pushchair with chocolate covering his fact and hands. and that Dr. the public outrage 26 27 28 Ibid. are presumed to have the competence to easily detect that the child had been suffering unimaginable abuse and neglect. Al-Zayyat failed to detect the broken back and eight broken ribs already sustained by the child. Al-Zayyat thought the baby had a cold. he does not seem to stop himself. two days prior to his death. trained in their specialised fields. who reported ‘no concerns’. Ibid. team manager at Haringey Social Services.’28 These professionals. 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. op cit. Furthermore. purportedly to cover up the bruises. The record showed that the examination could not be completed because the baby was ‘miserable and cranky’.27 Paulette Thomas. which the mother explained was due to a squabble with an older child. the consultant paediatrician who saw Baby ‘P’ alive.16 These professionals included Sabah al-Zayyat. Ward visited Baby ‘P’ four days before his death. but who visited the boy only four times in six months since the mother cancelled four appointments. the social worker assigned to the case of Baby ‘P’ on 2 February 2007. Gilly Christou. During the consultation.26 Another professional was Maria Ward. and on the basis of themselves omitting to exercise that due care in the discharge of their duties. . Ward visited the child for the first time 20 days later. 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.
Society is becoming progressively risk-averse. Apr 2010. Catherine. not just from the point of view of the patients and care recipients.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. CMCHA compels investigators to look more intensely at the organisation’s work practices as mandated by senior management. 3. 2005). Prior to the CMCHA. ‘Liability for Manslaughter by Omission: Don't Let the Baby Drown!’ Journal of Criminal Law. Vol.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. illness or infirmity. guilt attaches only if it may be proven that senior managers are grossly negligent in their individual capacities. 74 Issue 2.1350/jcla. to the deterioration of the quality of life.74. incurs for himself a duty to fulfil that commitment.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.627 .2. this sometimes redounds to the denial of independence to and the exercise of discretion by the care recipients.4. but particularly from that of the care providers. Under this scheme. 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. On the other hand. Thus.2010. while the person is unable to take care of himself. as of 2005 only five such cases have ended in convictions (Community Care. p163-179. DOI: 10. The result is the exercise of excessive caution due to the perceived need to play safe.
they failed to call for or provide medical assistance. or actually to have foreseen the risk but to have determined nevertheless to run it. 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. defendant Stone. The court held that both accused were guilty of manslaughter by gross negligence. The existence of a duty of care is also appreciated where there is a voluntary assumption of responsibility. Mere inadvertence is not enough…The defendant must be proved to have been indifferent to an obvious risk of injury to health. her body full of bed sores. When it was apparent that she was in dire need of medical attention. Although she initially was able to attend to her needs. The sister eventually died as a direct consequence. Fanny was known to them to be anorexic and unstable. Fanny. where accused Stone and Dobinson allowed Stone’s sister. because of the duty of care they assumed when they accepted Fanny into their home. that is to say a reckless disregard of danger to the health and welfare of the infirm person. In such a case. her condition gradually deteriorated to the point where she became bed-ridden. 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.”30 30 R v Stone & Dobinson (1977) CA .18 responsibility is passed on to another. The fact of the relationship between Fanny and her sister. was merely incidental. in a condition of squalor and filth. to live in their home. 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. This was the case of R v Stone & Dobinson.
(2005) ISBN 0406977305. Geoffrey ‘Contracting into Crime: A Theory of Criminal Omissions’ Oxford Journal of Legal Studies. the two accused were held responsible for the victim who lived in their house. 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’. however. by voluntarily staying in her aunt’s home and partaking of her food and resources. does not qualify the duty of care. Ownership of the residence. indicating that the victim is solely dependent upon the defendant for his care and welfare. Issue 2 R v Instan. the aunt eventually became ill and physically incapacitated due to gangrene in her leg. Jul 1. Mead. 1 QB 450  . 11. The aunt eventually died of neglect. 1991. even as ‘D’ remained in her aunt’s house and eat her aunt’s food.19 Throughout the years. Vol. a duty to undertake reasonable measures to mitigate or eliminate the danger 31 32 33 Ormerod. However. but because ‘D’. however. was implied to have committed to look after her aunt’s welfare even as she benefited from her aunt’s bounty. Smith and Hogan: Criminal Law. 3. and her niece ‘D’ was held liable for manslaughter due to omission to exercise the requisite duty of care. is responsible for the emergence of a dangerous situation. In this case. by his own acts or fault. did not feed her nor summon medical help.32 In the Smith and Dobinson case. David. Oxford University Press. she became unable to feed herself or even call for help. the liability proceeded not from the fact of their blood relationship. and there are no other people involved in the care of the victim. Eventually. however.5 Duty to avert a danger that was created by defendant Where a person who. ‘D’ neglected her.31 There do appear to be three qualifications that guide judgements in these cases: the awareness of the defendant that the victim is in a dangerous situation. the defendant is apparently more capable and has a greater moral commitment than that of a third party.
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. he instead moved to a different room. 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. instead of trying to douse the fire or calling for help. sections 1 & 3. 2 AC 161  R v Miller. In the decision issued by the House of Lords on appeal. 176 . The starting of the fire and the 34 35 36 37 R v Miller. until the reckless refusal of the accused to extinguish the flames. In R v Miller. Eventually. the person becomes liable. the fire flared up and spread. 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. 162 Criminal Damage Act 1971. thereby causing damage estimated at ₤800.  UKHL 6 at para. but because he failed to take any step to stop it or prevent it from becoming worse. and that failing this. Miller reiterated his defense that there was an absence of actus reus coincident with mens rea. leading to damage and injury.20 may arise on his part.’ 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. Upon waking and finding the mattress smouldering.35 Miller was tried and convicted for arson.36 not because he intentionally started the fire. if at the time of such conduct one's state of mind is such as constitutes a necessary ingredient of the offence. conduct which consists of failing to take measures that lie within one's power to counteract a danger that one has oneself created. On appeal.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.
In another case. In this ruling. a needle) on his person. and practical and financial considerations. of a duty of care. The ruling therefore clarified that a duty to act may be created by one’s own actions. and omission to perform this duty cannot be blameless. withholding treatment in the best interest of the patient. there are three special circumstances that qualify whether or not the doctor and the hospital would be incurring liability. resulting in the officer pricking and hurting himself on the needle..bailii. or absence. Accessed 10 May 2011 from http://www. however.21 reckless refusal constituted the actus reus and the mens rea of the crime of omission. the next step would have been for the jury to find out if the defendants had committed a breach of that duty of care.1 – Actus Reus: The external elements of an offence. In this matter. The appellants abandoned the victim.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.com/uk/booksites/content/0199275297/chap_1 .org/ew/cases/EWHC/Admin/2003/2908. omission of which may well lead to criminal liability. in R v Khan.40 the Miller principle was applied by the Court of Appeal to the context of manslaughter. if evidence existed upon which the jury may decide the existence.html R v Khan.41 38 39 40 41 Under the Offences against the Person Act 1861 Director of Publi Prosecutions v Santa-Bermudez. Accessed 10 May 2011 from http://www.oup. 3. EWHC 2908  (Admin).e. These situations include refusal by the patient to consent to treatment.39 Finally. who thereafter died as a result of the overdose. the defendant was convicted of ‘assault occasioning actual bodily harm’38 when. Crim LR 830  Oxford University Publishing (OUP). Chap. the appellate court that the trial judge should have determined. first and foremost. Appellants provided the victim with heroin on which she inadvertently overdosed. 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.
The judge expressed satisfaction that the respondents failed to prove that the patient did not understand the nature. and that despite his schizophrenia he did understand and has made a clear choice on the basis of that understanding. the patient did have the capacity to manage his affairs. however. is itself the source of criminal liability. who is also paranoid schizophrenic. the judge appreciated that although schizophrenic. Part III. 42 In this case.22 3. In one such case. The presumption is therefore in the patient’s favour. carrying out the medical procedure despite the patient’s refusal. For instance. the doctors and the hospital are precluded from imposing upon him the medical treatment he refuses to consent to. had been admitted to a secure hospital under the Mental Health Act 1983. there are instances when the patient refuses to provide his consent to the medical procedure or assistance being offered by the doctor or the hospital. in the case of minors where parents have refused the application of medical treatment. exceptions to the exception to the general rule.6. In such cases. In this case. the opposite – that is. 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 . While ordinarily doctors and hospitals are under obligation to provide medical assistance to patients under threat of criminal liability. and was capable of understanding his condition. Oftentimes. the doctor or hospital may not be held responsible for the omission of care deemed necessary for the patient. purpose. patient ‘C’. There are instances when the refusal of the patient to give his consent is pivotal in the decision. Patient ‘C’ then filed an action seeking the court for an injunction to prevent the amputation of his foot without his written consent. and effect of the treatment proposed.1 Situation 1: Refusal by the patient to consent to treatment. The doctors had recommended that his gangrenous foot be amputated because it is a threat to his life. There are also.
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.C. blind. 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). on the ground that such treatment would not be in the best interest of the patient. would insist on the performance of a medical procedure or treatment that the doctors or hospital would refuse to do or give.W.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.H. for to argue that the patient does not give his consent would contradict the pronouncement of the court. 3.6. and incapable of voluntary movement.46 Charlotte Wyatt was a premature baby with a birth weight of only one pound.  All E.45 in such cases. there are also instances when the reverse occurs – where the patient. who needed to be ventilated during her first three months of life. 693 (Fam.C.) . however. The doctors took the position that she should no longer be ventilated artificially. or more often the minor patient’s parents.W. (D) 294:  E. their point of disagreement was whether or not Charlotte should once more be artificially ventilated if she stopped breathing. She fought off infection while her breathing and brain functions steadily deteriorated until the damage to her body was deemed irreparable. as such would not be in her best interest.23 parents’ refusal. 2247. She appeared to be deaf. The doctors and parents agreed that her chance of survival were not good.R.  E. the doctors must not be remiss in providing the treatment.43 or the refusal of the minor patient himself.H. In Re Wyatt. Hedley J.
In cases such as these. where major or even repetitive surgery may be necessary to prolong life. the omission to perform one’s duty of care in the traditional sense. there is at least a possibility of legitimacy. therefore. p.24 painful to the patient. or those babies born severely handicapped either mentally or physically.47 In omission. On the other hand. The question may likewise arise in the case of those individuals advanced in age to the point of being incapacitated. does not fall under category of criminal omissions.48 47 48 Airedale National Health Service Trust v Bland  AC 789. and therefore insisted that Charlotte’s life should be prolonged as far as possible. and it is expected that prolonging Charlotte’s life in this manner was pointless. The types of controversies under this situation are numerous. as such would be against her best interest. where such could be construed as against the best interests of the patient. devout Christians. the omission may be lawful where such was the wish of the patient. or even where the patient is incapacitated to give or withhold consent. and where the doctor administers a lethal drug to actively cause the death of the patient. Charlotte’s parents. In another case. Where the doctor actively ends his patient’s life. therefore. He drew the line between the cases where a doctor decides not to provide treatment to prolong life. it was observed that the best interest of the patient did not necessarily redound to his being kept alive at all costs. The court sided with the paediatric team in deciding against artificial ventilation for the child. 865 Re J  2 WLR 140 . hoped for a miracle. such act is never lawful though the doctor is motivated by humanitarian ideals to end suffering. which is completely absent in the positive act. Where a doctor omits to provide care. Lord Goff penned an instructional distinction between acts and omissions in the context of the patient’s best interest.
6.49 49 Ormerod. It is simply not practical. For many.25 3. Smith and Hogan: Criminal Law. David.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. the cost would not be worth the additional years if such would only prolong life marginally. Oxford University Press. there is the need to determine the possible financial burden and the manpower limitations. that all persons whose lives may be prolonged by major surgery or intensive (and invasive) cutting-edge medical procedures will receive it. Apart from the consideration as to whether treatment would be in the best interest of the patient. (2005) ISBN 0406977305 . from the point of view of available resources.
that the promisor undertook the commitment because he or she was in the best position to perform the act. Mead believes. for which a person will be in need of assistance.51 In this case. Mead50 categorizes the sources of duty under three types: undertaking. p. 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. He may understand the ways a person may be vulnerable to such dangers. 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.1 First type: voluntary assumption of a duty. J. 930. Mead. knowledge of incurring of liability. op cit. ‘Promises in Morality and Law’. The undertaking should be seen from the point of view as the ‘best position’ perspective. 4. however. op cit. Second is that the promisor may in 50 51 52 Mead.. The voluntary assumption by a person to do something is seen as a ‘positive justification’ for duty to exist.26 4. The ‘Best Position’ argument is grounded on three reasons. in a manner other people may not be aware of.52 First reason is that the promisor will most likely be the person who is in the best position to know the peril. and justifications unconnected with voluntariness. that the voluntariness of the undertaking as a source of duty should transcend the mere contractual performance of an undertaking that a promise entails. by the volition of the actor. 167-171 Raz. pp. the person who promises to perform an undertaking is of such state of mind that the duty is created by positive justification. (1982) 95 Harvard Law Review 916. .
Some observers feel that there is an implicit assumption of a duty is insufficient. 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. when the actor performs a duty that presumes the incurrence of a duty means that (a) the . The concern is that the actor is not put in jeopardy without good reason. For instance. and for which the subsequent liability would be unjust for lack of notice. This proceeds from the normal presumption that when a person volunteers to do a particular thing. the actor incurs a duty. 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. That is. and a more objective and positive act by which the actor may convey his/her acceptance of the duty.2 Second type: voluntary performance of an act that incurs a duty.27 most likelihood be the most capable person to perform the act. On the other hand. These three reasons enhance the undertaking as more than mere compliance of a contractual obligation. or at least he or she would be better able than a third party to competently discharge the duty. and that there must be a positive reason for the actor to be burdened with the duty. third persons who knew about the undertaking would think that they were not particularly helpful in its performance. and in many cases would justifiably feel that they may simply be in the way and most likely constitute a hindrance in the effective completion of the task. 4. 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 second type of sources of duty is the voluntary performance of an act with the actor’s knowledge that by doing so.
obligations to compensate the aggrieved parties for wrongs done by family or associates. 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. despite his unwillingness. 53 54 Mead. and there is a necessity for the performance of such task. obligations to restore property transferred against one’s will. The duty may be even seen in the nature of the act of a good Samaritan. An obligation may also arise upon an individual who..28 actor is the person most aware that his assistance is necessary. p. p. nor did he perform any act that incurs such duty for him. 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. obligations can arise in ways other than through a voluntary act. Mead cites the essay ‘Nécessité Oblige’ by Tony Honoré. 169 Ibid.. In this justification.54 According to Honoré. 1987) .53 4. 127 (Oxford. because it is the closest to a general liability and is open to the influence of arbitrary bases for attributing duty. (b) he or she is the most capable to perform the duty. is bound by duty to perform if he is the best qualified person to perform the task. 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. This is the case that invites the greatest controversy among legal theorists. citing ‘Nécessité Oblige’ by Tony Honoré. such as the obligation to compensate for accidental harm for which one is at least partly responsible. and yet is considered to have a duty to act. Clarendon Press. This pertains to instances when a person has not volunteered to perform a duty. op cit. 170.
the duty is imposed at times even against the wishes of the actor. In fact. though the latter may be unwanted. no objective or material benefit that accrues to the parent for the duty of providing for the child. and takes it upon himself to do so. In the case of relationships. 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. This duty is created by the dependency of the child upon his or her parent for the provision of his or her needs. The duties are also grounded in necessity. there is normally. However. the person is aware that he is in the best position to perform the act and discharge the 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. 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. 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. from the pragmatic view at least. the actor often is not aware that he has incurred or is incurring the duty. that if the obligation were not imposed then the situation will result in more . Most important of these relationships is that duty of care of a parent for his or her children. These are the bonds that emanate from purely social relationships not susceptible of the usual considerations that govern contractual relationships. Where a person voluntarily undertakes a duty or performs an act that knowingly incurs for him that duty. It is for this reason that many legal experts argue that duties of this type should not be imputed upon the individual. The obligation to alleviate the harm or risk posed by the unintentional creation of danger is another such type of duty.
As Honoré articulated it. p. in Mead. op cit. 171. . necessity makes law: nécessité oblige’..55 55 Honoré.30 dire consequences to people who are among the most vulnerable in society. ‘in the last resort.
and a partnership or trade union or employers’ association that is an employer. 1(2) Sentencing Guidelines.sentencing-guidelines. 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. Pursuant to this law.31 5. the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA) took effect.uk.57 Aside from the fine.1 Corporate manslaughter by omission: Omissions by police officers due to failure to perform duty On 6 April 2008.1 of the CMCHA. Accessed 10 May 2011 from http://www. 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. but may increase by hundreds of thousands of pounds or even more. leading to the death of an individual. which will be seldom less than ₤100. s. 5. The court shall 56 57 CMCHA. a police force. published by the Sentencing Guidelines Council on 9 February 2010. the organisation convicted of the crime of corporate manslaughter may be imposed additional penalty in the form of a remedial order. SPECIAL ISSUES IN OMISSIONS Aside from the general issues already discussed. a department or similar body listed in Sched. . This is a judicial order that is made upon application of the prosecution specifying the terms in the application.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.000. For the purpose of this law.gov. a ‘relevant organisation” is defined as: a corporation.
police neglect may come in the form of failure to turn on the siren or the blue warning light. In the remedial order shall be stated: the relevant breach. such as crowd control during high-profile sports tournaments. Furthermore. A third type of situation involves fatal shootings by policemen. than others. 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. s. where the road mishap was the result of a police pursuit of persons. at its discretion. 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. as mentioned in CMCHA. 1(1). the court may. and the terms of the remedial order against the organisation. and lastly are deaths of persons 58 CMCHA. and any deficiency in the company’s policies.32 then specify the terms as it sees fit. or where other persons are killed because of the high-speed pursuit. Another example would be police response to public order situations. which the relevant breach appears to indicate. Road traffic fatalities are an example. there are a few that tend to be more controversial. s. including the details of the offence. based on the representations by the prosecution and the evidence presented by both sides. there is special interest in the case of the police force where omission of the requisite due care caused the death of an individual. as a consequence of which a pedestrian is killed. systems or practices regarding health and safety.58 Among the organisations relevant for the purposes of this law. 10 . It often happens that the driver of the vehicle pursued loses control of his vehicle and is consequently killed. any matter the court considers to result from the relevant breach and which appears to have caused the death. In this case. While not all deaths related to police activity are controversial. the amount of fine imposed. and more frequently encountered. order the convicted organisation to publicize the fact of its conviction.
Because of this.cps. 17/07/2006. 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 2005.1. the Metropolitan Police force was found guilty of breach of sections 3 and 33 of the Health and Safety at Work Act 1974. the police units pinned him down and repeatedly shot him in the head. At the Stockwell tube station. a Brazilian legally residing in London and who had no connections to the bombings. Despite the grave error made in identification.uk/news/press_releases/146_06/ On the duties of care owed to non-employees. De Menezes. . 2010] 74(4) Journal of Criminal Law 358-381. 5. regarding police communication.1 Fatal shootings attributable to negligence.59 Since these last two types are the more common types of criminal liability due to omission or neglect of duty. Acessed 10 May 2011 from http://www. operations and actions taken. believing their suspect to carry explosives.33 held in police custody.60 However. 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. there had been numerous incidences of neglect that had been noted in the conduct of the operations. The police were conducting surveillance operations on the residence of suspected bomber Hussain Osman. CPS Statement: Charging decision on the fatal shooting of Jean Charles de Meneses. the Crown Prosecution Service ruled out murder or manslaughter charges against individual officers who participated in the shooting. and the cumulative result was the tragic death of Mr. Stephen & Moran. they shall be treated in greater detail.61 “for failing to provide for the health. due to insufficient evidence. but was in reality Jean Charles de Menezes. at 363. Jon ‘Accountability for Deaths Attributable to the Gross Negligent Act or Omission of a Police Force: The Impact of the Corporate Manslaughter and Corporate Homicide Act 2007.’ [Aug.gov. no individual had been culpable to the degree 59 60 61 Griffin. when they followed a man whom they thought to be Osman.
op cit. therefore.”62 The penalty imposed on the police force was a fine of ₤175.2 Custodial deaths attributable to negligence.”64 5. was particularly controversial because the findings of the Independent Police Complaints Commission’s report attributed “unwitting racism” to the officers involved. and died face down in a pool of blood in a police custody suite. he is usually presumed to be safe. black. op cit. in the case of involuntary manslaughter.co.34 necessary for a criminal offense.000 with ₤385. ordinarily. Accessed 10 May 2011 from http://news. 5. Griffin & Moran. v Asiatic Petroleum Co. it becomes necessary to link the act of the individual employee through the chain of command to the directing mind. The identification principles hold that a corporate body is personified by its directing mind65... 27 March 2006. Alder was 37.1. Thus.63 One case in 1998.stm Lennard’s Carrying Co. The death of an individual. Ltd. the directing mind is embodied by its director/s.uk/2/hi/uk_news/england/humber/4848238. The four officers were found to be guilty of the “most serious neglect of duty. The problem is that management 62 63 64 65 CPS Statement. comes with the suspicion of the excessive and improper use of restraint or control. cases where people die in police custody are surrounded with controversy because when a person is detained under process of law..bbc.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.000 legal costs. p. that of the death of Christopher Alder.  AC 705. or poor monitoring of prisoners who are intoxicated or mentally disturbed. while the four accused stood chatting nearby. Ordinarily. . however. Ltd. 364 BBC News. ‘Police condemned over man’s death’.1.
the prosecution of a police force for manslaughter often fails to prosper. 3rd Report 2000-2005. HL 15-1/H 137-1. 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. op cit. not normally open to technicalities that would impede justice in majority of the cases.35 structures are so complicated and orders disseminated so indirect that often.” this being only partially developed. at 68.69 66 67 68 69 Tesco Supermarket Ltd. resulting in an injustice to the relatives of the fatality by police neglect. Griffin & Moran. 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. Therefore the CMCHA is not sufficient to meet the requirements of Article 2 of the ECHR. C & Keenan. Joint Committee on Human Rights. to establish a system of “appropriate enforcement. Deaths in Custody.68 However. and falls short of the fulfilment of its obligation under Article 2. under the common law. 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.66 Therefore. under closer study. at 361 . It is also thought to constitute a measure of compliance with international law.. it is difficult to fix the criminal liability to the corporate director due to misinterpretation and abuse by lowerranking officers. by analogy Bell. J. v Nattrass  AC 153. it is apparent that what the CMCHA puts in place is a system of proper examination.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. 1. vol. at 13-15. ‘Lost on the Way Home? The Right to Life in Northern Ireland’ (2005) 32 Journal of Law and Society.
there has been increasing reliance on a particular principle as a source of liability for omission. there has been increasing development towards the regulation of acts of individuals in the international legal system. the doctrine has already been thoroughly developed and presents little controversy.1163/157181206777066745 . however. that Duttwiler excluded its application in his study. 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. However.“Liability for Omission in International Criminal Law. The omission to do a deed is essentially a personal liability. superior responsibility is an important. through the International Court of Justice. 6 Issue 1. which is the doctrine of superior responsibility. individuals had not been deemed proper subjects of international law. Michael. doctrine relied upon as a source of duty to act.” (Jan 2006). Vol. This is a novel approach. only states and international organisations. such as in the case of military troops in a war or armed conflict. and despite this did not intervene in their actions. Because of these developments. p1-61. At the same time. Clearly. human rights law and crimes against humanity have taken on a more robust application in international law.36 5.2 Liability for omission in international criminal law Duttwiler70 explored the application of omission as a source of criminal liability in international law. creating a venue for greater participation for individuals as either those seeking redress or those being brought to justice. This concept stresses that a superior is responsible for the actions of his subordinates. 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. What needed 70 Duttwiler. pertaining to the actus reus and mens rea of an individual rather than a state. since until the Nuremberg trials of post-World War II. DOI: 10. if not the most common. After World War II.
and is expected to be welcomed by the Member States. the breadth. should it materialise. whether or not that particular jurisdiction recognises the principle of commission by omission. it is generally held that there are no limitations to the application of liability for omission should the proper case for it emerge. 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. 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. however. with regard to perpetrators from any jurisdiction. the application. 38(1)(c) ICJSt. scope and incidences of such are not very substantial. which regards the human conduct of omission as action. which forms the theoretical foundation for holding a perpetrator liable for omission. 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.37 to be determined was the existence of a general norm of liability for omission of duties that may exist in international criminal law. Largely. Under the Rome Statute of the ICC. presuming that a legal duty to act exists. the study arrived at only one such treaty provisions of more or less relative significance but of limited scope. despite the absence of case law on the matter. After a wide scan of treaty provisions and agreements. It is believed that there will be no difficulty for the ICC to apply the general treaty provision on omission. The study arrived at the conclusion that. 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. will be largely from the basis of an ethical or moral point of view. . While the legal principle exists in theory and statute. Other than this.
While the duties towards the state. One is the ‘conventional view’ and the other is the ‘social responsibility view’. Far from being polar opposites. 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.71 In considering criminal law reform. ANALYSIS 6. save for the cases where the duty to act is most apparent and the consequences for omission the most severe.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. are clearly defined (as was earlier mentioned in omissions created by statute). Ashworth explains two conflicting schools of thought. Andrew. One of the more perceptive and insightful comments came from Andrew Ashworth. however. against their will 71 Ashworth. The ‘conventional view’ holds forth the position that criminal law should avoid as much as possible to impose liability for omissions. and omissions. on different theoretical premises. these views overlap and only differ as to their scope and extent. however. ‘The Scope of Criminal Liability for Omissions’ (1989) 105 LQR 424 . Admittedly. such as the payment of the correct amount of taxes and tariffs. the duties to other people are not as clear-cut and obvious.38 6. 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. They are founded. There is likewise general acceptance of general duties that are expected of citizens and members of society. there are acts. that society would recommend to be regulated by law and punished for culpability. which duties should be strengthened by offences for omission. 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.
Proponents of the social responsibility view. as in the case of disasters and natural calamities. Seldom are such issues a matter of black and white. 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. Fundamentally. there is disagreement as to what constitutes omission for which liability is imposed. are open to the idea that at some level. At times. and in the end the fixing of culpability would often be based on social values than legal requisites. even where voluntary consent to do so has not been construed. and not performing an act which results in the same harmful consequences.39 and at times without their knowledge. For the conventional view. and are in danger of being punished if they omit to perform this duty. 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. however. the difference between the two views is that conventionalists stress the minimalist condition that liability should be imposed on omissions of voluntarily assumed duties. because the duty itself is so vague and seemingly arbitrary. it is a different matter to say that the failure to positively act on these obligations would incur for the individual some punishment as in the commission of a crime. There is a moral distinction understandable to the common individual that it is one thing to perform an act that leads to harmful consequences. oftentimes they entail the weighing of circumstances and consequences. while social responsibility advocates do not adhere to any limitation except that conveyed by reason and the circumstances. However. there may be a need to impose criminal liability upon those who omit the performance of the duty to act. and where the severity of the situation may call for it. the coercive power of criminal law .
40 and punishment requires that the individual must have been given the benefit of notice that such a performance is required of him as an obligation. 87 . Social responsibility. the positive act being deemed the more condemnable of the two. who adheres to the position that individual rights should be upheld and the intrusiveness of the law limited. omissions are viewed as the exception rather than the rule. 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. would tend to tolerate omissions as more than exceptions. is that society’s most urgent task is the repression of active wrongdoing. according to Williams.73 Williams 72 73 Williams. ‘Criminal Omissions – The Conventional View’ (1991) 107 LQR 86 Ibid. and tolerance. for wrongful action is different from that of wrongful inaction. and that failure to perform this obligation will be meted a corresponding penalty. and certainly not to the extent that failure to perform is punished. The conventional view is strongly supported by the arguments of Williams72. but as part and parcel of the legitimate exercise of coercive power of the state upon the individual. This is indicative of a moral distinction we subconsciously make between a positive wrongful deed and a passive wrongful omission. 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. with stress on ‘active’. The first assertion. Glanville. p. while not inconsistent with these views. than for a son to neglect to feed and care for his father until the latter eventually expires. 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. Under this theory. The second is that condemnation. To illustrate. it is usually more morally despicable for a son to take a dagger and stab his father to death without provocation. where both have the same eventual result.
then the act of standing by and watching a person get killed is tantamount to 74 75 Williams. op cit.2 The Act-Omission Paradox When considering the difference between acts and omissions as sources of liabilities. it becomes necessary to more closely analyse the effects of a positive act and an omission. In the case of the provision (or omission) of medical treatment where the patient or his guardian does not give his consent. while an omission may not be. both Jehovah’s Witnesses. and differentiates those omissions that clearly run contrary to the public interest.75 6. R v Senior  1 QB 283 .74 While the theory about omissions appears sufficiently clarified. it is never acceptable for one man to kill another without provocation. The time is often too short for the doctor to appeal to the courts. As illustration. The act-omission doctrine implies that a positive act is always culpable.41 qualifies. However. however. in practice there are cases which by their nature are still too difficult to call. then that may be permissible. where the results of both are the same. 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. thus there is a need to decide whether or not to act without consent. it may be necessary for the doctor to make a judgment call where a medical emergency threatens the patient’s life. but where a person stands back and allows another to die. if one were to look at the omission as act. This is with reference to R v Senior where the refusal of the child’s parents. which are within the purview of the state to punish. 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.
though. The person who omits to act to prevent a killing allows the offence to take place. This school of thought views omissions as acts. If the act allowed to happen should not be permitted. The qualifications of this type of reasoning are obvious. he or 76 Persson. without directly causing a death. Therefore. Its cornerstone is deontological ethics. and in doing so condones the killing. the person is aware that an impermissible act is about to happen. It is an approach to the study of ethics which views the morality of an act based on its relationship to duty. that is. Apr 2004. This is not so far fetched where a person may initiate an action that. This philosophical reasoning goes into the core of the rightness or wrongness of an act (omission). In such instances a paradox exists. Firstly. the duty referred to is the duty not to let an immoral act happen. an act that is impermissible but allowed to happen makes the act of allowing itself impermissible. but allows the victim to be killed. meaning ‘obligation’ or ‘duty. Two Act-Omission Paradoxes Proceedings of the Aristotelian Society. Vol. then the omission constitutes a culpable act. the act of allowing something to happen. not the legal sources of duty discussed earlier. . that an offence is at once permissible and at the same time impermissible. because it is a betrayal of the duty to forbid an impermissible act. he does not kill the victim. In this sense. 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. Second. may eventually lead to a death. 104 Issue 2. Ingmar.42 permitting the death of this victim.’ and logos meaning ‘study’. from the Greek root word deon. or act-omission doctrine. and to an extent provides a perspective from which to view the culpability that may be attached to an omission. Deontology closely relates the ethic of the act with the duty to abide by what is right or permissible.76 This type of reasoning is the crux of the deontological doctrine AOD. p147-162.
therefore. and assuming it is. The point of controversy lies in the nature and source of the duty. that the omission of the act that complies with the duty is not justified. That there is a harm done and that the omission took place are matters of fact and may not be disputed. for which the individual may be held accountable or liable. The general concept is that omission is the absence of action. Finally. In other types of omissions. it requires only straightforward compliance to avoid the consequences. and that the omission resulted in harm done to another. and if the omission of that duty may be penalised according to the tenets of criminal law theory. ongoing debate is whether or not it is appropriate for criminal liability to attach to omissions. under which circumstances it should be done. 6. In these instances. but is assumed as a duty of the moral person who abides simply by what is right. The only instance. contract. 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. . 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. which are in the nature of mala prohibita. then the person who omits to intervene should not be penalized. compliance is mandated and the penalty is specified. These involve no controversial issues. This is the only possible solution to avoid the act-omission paradox. volition or relation.43 she is in a position to intervene in such a way as to possibly thwart or frustrate the act. it is the omission to intervene that allows the act to succeed.3 Summary The main. and since the absence of action could not give rise to harm that is not already inevitable.
in which case the court may rule on the matter. The specific type of duty depends upon the particular circumstances under which such were incurred. Examples of this abound in instances where medical treatment may be refused by the patient. Duty to provide medical treatment (and exempting circumstances) Duty arising from special relationships (e.44 The study outlined the sources of duties. . Therefore. 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. and do not constitute a hard and fast categorisation. however. 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. 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.g. 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. which in most cases discharges the duty. There are exceptions to this exception. and the typology of these sources. the resultant harm will be attributable to the failure to perform the duty. The reverse is also true. An exception to these assumptions is when the duty may be construed to have expired or been discharged. public or official duties Duty to avert a danger created by defendant. Where a duty has been voluntarily assumed through an undertaking or by performance of an act that necessarily incurs a duty. where the patient or his parents are insistent upon the treatment but which the doctors feel is not in the patient’s best interest.
as to whether an individual who did not wilfully accept an obligation not mandated by law. 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. there is the highly controversial situation where an emergency exists and the patient’s death is imminent of treatment is delayed. in which case the doctor faces the jeopardy of manslaughter charges. and aware that his failure to intervene would result in harm. The second allows for liability to attach to all types of omissions. and either applies treatment or withholds it. and may not even be aware of it. The controversy arises where the doctor. The first leans more towards limiting the liability attached to omissions to those duties voluntarily assumed. but being detached from those duties without voluntariness. the evident nature of the duty and the severity of the consequence of omission. provided the person was aware of his duty. The dilemma may be addressed on several bases. but qualified as to the harm caused.45 Finally. . This is where the moral dilemma arises. The usual controversies arise where the source of the duty is based on some other justification without the volition of the individual. in the case where the duty was justified without voluntariness. and the patient dies or is harmed further. Finally. and may not even be aware that he is charged with it. deontological doctrine sees liability attaching to omissions because omissions are viewed as acts of dereliction of duty. because of the lack of time. capable of intervening. although for expediency this study employed the minimalist-conventional view vis-à-vis the social responsibility perspective. makes a judgment call. the act-omission. the individual did not voluntarily assume the duty. In such cases.
this study has arrived at the following paradigm by which to view the nature of omissions. because these are lawful obligations imposed with the knowledge of the individuals. . That liability may attach to an omission in the absolute sense is a foregone conclusion. because in the case of statutory duties that have been omitted. They greatest number of omissions which should be punishable are those that are statutory in nature. the corresponding penal provisions are clear and the person who has omitted the duty may clearly and ethically be meted the corresponding penalty. and the criminal liability that attaches. their qualification on the basis of the type of duty omitted.46 7. CONCLUSION Based on the analysis conducted on the problem sought to be resolved. indicative of their relative frequency as they are expected to occur in legal actions. 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.
or the recklessness of the manner with which the duty had been abandoned. Finally. so that the welfare of the weakest and least powerful may be protected. It must be kept in mind that the diagram shows the degree of liability that should attach based on the typology of the duty on which the omission is based.47 Following should be those duties that are incurred due to contractual. public or official duties. 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. This does not apply to the factual antecedents of each 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. the more vigilant the state must be as steward of its people. While these may be considered as voluntary assumptions of duty as classified in the preceding table. Generally. that is. the fewest incidences of omissions which may be attached with criminal liability should pertain to those omissions of duties the justification of which is without voluntariness. the 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. These should further qualify the severity of the punishment that the court should apply to the case. However. and are sometimes without their knowledge. where the severity of the omission is greater and the beneficiaries of the protection of the duty are more vulnerable. . this does not mean that liability should not attach. the vulnerability of the victims. the frequency of occurrences should also be gradually lessening. As the level of voluntariness diminishes moving upward in the triangle. These are with particular application to parents of their children. to the type and degree of harm. and therefore more appropriately the subject of regulation which may result in criminal liability.
However. and in future developments of statutory omissions that may be promulgated in multilateral agreements in international law. as may be seen in the special issues presented in the paper. 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.48 The typology of duties presented here is based upon personal liability for omissions of personal duties owed to other individuals. there is a need for these categories to expand to take into account the corporate liabilities that would attach to corporate manslaughter by omission. . although resort to this appears to be a distinct possibility in the future. Presently. a new development in the law.
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