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AR: Omissions (Exceptions where the law imposes a duty to act: (4. Where…
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.
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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
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.
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.
In conclusion, the acknowledgement that liability for omissions should only be imposed in morally uncontroversial cases reflect the current law.
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.
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.
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.
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?
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'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