AR: Omissions
There is generally no liability for an omission. There are several exceptions where the law imposes a duty to act upon a person and this means that a person can only be held criminally liable where he has performed a positive act.
Critics of this current position at common law argue for a 'social responsibility' approach. This view proposes that liability should arise for failing to attend those in peril because of the moral obligation to do so and because it reflects a more complex social pact.
Exceptions where the law imposes a duty to act:
4. Where there is a special relationship between the parties: Such as a parent-child relationship in Gibbins and Proctor or a doctor-patient relationship in Airedale v Bland. A special relationship will result in duty being imposed upon the defendant to act to assist the other.
1. Statutory duty: Parliament creates liability for failing to act in a way. A best known example would be through the Children and Young Persons Act 1933 which places parents and guardians under a legal duty to care for children.
In conclusion, the acknowledgement that liability for omissions should only be imposed in morally uncontroversial cases reflect the current law.
Disadvantages of imposing a general duty on care to protect others from harm
It is submitted that a more radical approach would be to adopt the French model of creating a general statutory duty of 'easy rescue': There would be liability for failing to prevent harm where such prevention would not be too onerous or difficult for the defendant to achieve.
Common law duty to act: Other than these exceptions, there will be situations where despite the absence of any statutory or contractual duty to act, it is felt that liability ought to be imposed. In such cases, it will fall to the common law to perform its residual function of supplying the omission. However, the developments of these novel situations could lead to problems ensuing
2. Defendant is subjected to a contractual duty or holds an office that suggests the imposition of a duty: R v Pittwood: The employee's contract had imposed a wider duty upon the employee to users of the crossing. Thus the duty arising under the contract inures to the benefit of those who are not privy to the contract. This is contrasted to R v Dytham where the mere fact that there is an agreement, it would not necessary mean that there will be a contractual duty to act.
3. Voluntarily assuming responsibility to someone: Stone v Dobinson: Where a defendant voluntarily assumes responsibility for someone, the law imposes a duty upon them to continue to do so.
1. R v Instan would suggest this. The omission of not providing her aunt with food nor obtain medical attention would lead to the defendant being convicted of manslaughter. The court proceeded on to conclude that this is on the basis that a common law duty was simply a moral duty so fundamental that the courts had to enforce it
The problem with the use of common law imposing duty to act is that it is reactive - it only develops because cases come to the courts on appeal.
2. The problem with such rulings on the common law is that the limits of liability are left vague: How much to an extent should an individual be liable to another?
5. Duty on the defendant to act in order to avert a danger he/she has created: In Miller, the defendant was convicted due to his failure to act (Put out cigarette). In DPP v Santana-Bermudez, the same principle was applied as well. There was a duty upon the defendant to warn a police officer that he had a hypodermic needle in his pocket.
The law sends mixed messages: One ought to care for others, but one should not start to do so unless one is able to discharge that duty properly.
Reasons to impose a liability for those failing to act: 1. Ashworth - social responsibility view and 2. Williams - conventional view
Convention view by Williams (Disadvantage of imposing a liability for common law duty of care): A should not be compelled to serve B
The common law duty to act was developed further in R v Miller where the defendant was squatting and he fell asleep whilst smoking a cigarette. There was no statutory duty to put out the fire caused by him, so based on the common law duties, the HoL had no choice but to 'discover' a new legal duty at common law. For criminal damage, it must be shown that the omission caused the harm and the defendant had the requisite mens rea at the time of the actus reus
This doctrine has since been applied to R v Evans (Gemma) where it was held that awareness of having caused a dangerous situation could give rise to the duty of care. While this ruling is desirable, there are social uncertainties What is it that the defendant is required to do once he realises he has caused the harm? Must he act as the reasonable person?
According to this view, the law aims to maximise each individual's autonomy and liberty. Citizens should not be encouraged to interfere in the lives of strangers, nor should they be forced to help strangers; imposing such a duty on citizens would be too onerous. The criminal law should acknowledge an individual's choice rather than compelling him to act.
We have 'stronger inhibitions against active wrongdoing than against wrongfully omiting'
Social responsibility view by Ashworth (Advantage for imposing a liability for common law duty of care): A should be under a legal duty to assist B
This approach relies on the argument that all of society will benefit from the duty to be helped when in extreme peril. However, it safeguards liability by insisting that the peril far outweighs the cost or inconvenience to the person required to assist.
'Grows out of a communitarian social philosophy which stresses the necessary interrelationship between individual behaviour and collective goods
Imposing a duty upon individuals to help each other will also increase the possibility of mass liability and would be impractical. The conventional view holds that the criminal law should only impose liability for omissions in clear and serious cases and should be confined to situations where the defendant has voluntarily assumed responsibility to another or there exists a special relationship