List of criminal acts

Particular ‘criminal act’, but all forms of criminal law seem to include offences of

omission.( Andrew Ashworth, ‘The scope of criminal liability for omissions’[1989] L.Q.R. 105(Jul),424-459

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accessed 12 November 2010 )

A criminal act can be defined in two parts, first is that the defendant has

done an act which has caused a prohibited kind of harm and second being that the

defendant is culpable, worthy of criticism, for having caused that harm.( Jonathan Herring, criminal law ( 6th edn, palgrave macmillan law masters, 2009 ) 3-5 )

Whereas an omission is a failure to perform an act agreed to, where there is a duty to

an individual or the public to act (including omitting to take care) or is required by law,

such an omission may give rise to a lawsuit in the same way as a negligent or improper at.( http://legal-dictionary.thefreedictionary.com/omission accessed 13 November 2010 )

Thus in this essay, I have attempted to analyse, whether the criminal law sanction

should only be applicable to certain positive actions or should it include omissions as

well. My aim is to discuss both sides of the coin, with respect to the state of English

criminal law on criminal liability for omissions.

There are two different views, on the basis of which one can scrutinise and develop the

prevailing laws or statutes on omissions, namely – the “conventional view" and the

“social responsibility view".( Andrew Ashworth, ‘The scope of criminal liability for omissions’[1989] L.Q.R. 105(Jul),424-459

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The former maintains that the criminal law should be reluctant to put liability for

omissions except in clear, brutal and serious cases, whereas the latter propagates that it

may be justified to place citizens under obligations to offer assistance to other members

of the society in some situations. ( Andrew Ashworth, ‘The scope of criminal liability for omissions’[1989] L.Q.R. 105(Jul),424-459

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Lastly I would also throw some light on certain situations where an individual is under

an obligation or duty to act as per the English court of law.

The conventional view maintains a minimalist stance on criminal liability or censure for

omissions. ( Andrew Ashworth, ‘The scope of criminal liability for omissions’[1989] L.Q.R. 105(Jul),424-459

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A strong factor that beefs up this proposition is ‘individual autonomy’.

This principle of ‘individual autonomy’ has two aspects – factual and normative,

the factual aspect states that all sane individuals, generally have the capability and

sufficient free will to make substantive choices, while the normative aspect states that

without providing this ‘free will’ and the right to choose their acts and omissions,

members of the society could barely be regarded as moral persons.( Andrew Ashworth, Principles of Criminal Law ( Fifth Edition OUP Oxford,2006) 24-27) )

An important feature of individual autonomy that backs this minimalist stance on

liability for omissions is –

“one may not pursue any goal by means which infringe people’s autonomy unless such

action is justified by the need to protect or promote the autonomy of those people or of

others". ( Andrew Ashworth, Principles of Criminal Law ( Fifth Edition OUP Oxford,2006) 24-29) )

Upon reading Glanville Williams’s journal “Criminal omissions - the conventional

view" and various other sources, I compiled a total of five core points that support this

conventional approach towards criminal liability for omissions.

Firstly, the society’s most important and imperative task is the elimination of direct or

indirect harm that people face due to wrongful acts. Getting the unwitting or

lackadaisical up to scratch is very much a secondary requirement, for which the

criminal procedure may not be the best answer.( Glanville Williams, ‘Criminal omissions - the conventional view’ [1991] L.Q.R. 107(Jan), 86-98

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Second is the mens rea problems associated with omissions. The jury in general has to

decide whether the accused had the mens rea when he committed the actus reus,

however the issue with omissions is that there is no exact point in time when the actus

reus takes place and at which to consider whether the defendant had the relevant mens

rea. .( Jonathan Herring, criminal law ( 6th edn, palgrave macmillan law masters, 2009 ) 44-46 )

Thirdly our attitudes to illegitimate acts and illegitimate omissions are different, we

have much stronger inhibitions against active wrongdoing than against wrongful

omitting, for instance killing a person would be morally worse than failing to save his

life. .( Glanville Williams, ‘Criminal omissions - the conventional view’ [1991] L.Q.R. 107(Jan), 86-98

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Fourth is the number of potential defendants, for example in a car crash, hundreds of

people pass by, punishing all of them would not be justified by any angle. ( Jonathan Herring, criminal law ( 6th edn, palgrave macmillan law masters, 2009 ) 44-46 )

Lastly it will be morally wrong to convict non-doers of acts under the name of doers,

when crimes are expressed with the use of verbs implying action, it is a breach of the

principle of legality to convict people of them when they have not acted. .( Glanville Williams, ‘Criminal omissions - the conventional view’ [1991] L.Q.R. 107(Jan), 86-98

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The social responsibility view of criminal liability for omissions, grows out of a

communitarian social philosophy which stresses the necessary interrelationship between

individual behaviour and collective goods. ( Andrew Ashworth, ‘The scope of criminal liability for omissions’[1989] L.Q.R. 105(Jul),424-459

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Individuals need others, or the action of others, for a wide variety of tasks which assist

each one of us to maximise the pursuit of our personal goals. ( Andrew Ashworth, ‘The scope of criminal liability for omissions’[1989] L.Q.R. 105(Jul),424-459

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Therefore it is, strongly arguable that each individual life should be valued both

intrinsically and for its contribution(or potential contribution) to the society. ( Andrew Ashworth, ‘The scope of criminal liability for omissions’[1989] L.Q.R. 105(Jul),424-459

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In his journal ‘The scope of criminal liability for omissions’ Ashworth has quoted T.

Honoré(“Law Morals and Rescue" in his Making Law Blind(1987)) –

“The social responsibility view follows that there is a good case for encouraging co-

operation at the minimal level of duty to assist persons in peril, so long as the assistance

does not endanger the person rendering it, and a case may be made for reinforcing this

duty by criminal sanction". ( Andrew Ashworth, ‘The scope of criminal liability for omissions’[1989] L.Q.R. 105(Jul),424-459

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accessed 12 November 2010 )

However the critics of this view such as Glanville Williams argue –

“Imprisonment as a means of enforcing the duty should be ruled out, because

imprisonment creates great distress and is a poor way of trying to add to the sum of

human happiness, unless the advantages of it are much clearer than they are in this

instance". .( Glanville Williams, ‘Criminal omissions - the conventional view’ [1991] L.Q.R. 107(Jan), 86-98

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When Princess Diana was killed in a car crash in Paris there were allegations that some

journalists coming across the accident had taken photographs, rather than summoned

help. ( Jonathan Herring, criminal law ( 6th edn, palgrave macmillan law masters, 2009 ) 44-46 )

In France there is a law that which requires you to provide or summon assistance

for someone in peril, and investigations were undertaken to see if the journalists could

be prosecuted under that law. ( Jonathan Herring, criminal law ( 6th edn, palgrave macmillan law masters, 2009 ) 44-46 )

The article 223 of the French Penal Code criminalizes a person who voluntarily neglects

to prevent a serious crime or offense against the person, if that crime could be

prevented without personal risk or risk to others and a person who voluntarily neglects

to give, to a person in peril, assistance which could be rendered without personal risk or

risk to others. ( Andrew Ashworth, Principles of Criminal law ( Fifth Edition OUP Oxford,2006) 44-47) )

In England and Wales such ‘Good Samaritan’ or ‘easy rescue’ laws do not exist because

of the principle that you are not normally criminally liable for omissions. ( Jonathan Herring, criminal law ( 6th edn, palgrave macmillan law masters, 2009 ) 44-46 )

However there are situations defined by the court of law, when an individual is ‘under

a duty to act’.

In total there are four situations wherein a person is under an obligation to act, and

there is no interference of the principle of individual autonomy. ( Jonathan Herring, criminal law ( 6th edn, palgrave macmillan law masters, 2009 ) 38-40 )

I would like to proceed by discussing each and every situation along with relevant case

law and legislation.

Firstly there are statutory duties, in this case the statute explicitly imposes liability for a

failure to act.( Jonathan Herring, criminal law ( 6th edn, palgrave macmillan law masters, 2009 ) 38-40 )

For instance, under s.7(4) Road traffic Act 1972, it is a criminal offence to

fail to supply a specimen of breath when required to do so in certain specified

circumstances by a constable in uniform. ( Jonathan Herring, criminal law ( 6th edn, palgrave macmillan law masters, 2009 ) 38-40 )

In Pitchley( Pitchley(1972) 57 Cr App Rep 30.Court of Appeal), P was handed money

by his son which he paid into his own post office account, P admitted that thereafter he

discovered that the money was stolen, but that he left the money where it was, on his

being charged with dishonestly handling the money, the prosecution contended that by

leaving the money in his own account, P was assisting in the retention of it for the

benefit of his son.( R. v Pitchley (Abraham Joseph), Case Analysis <https://login.westlaw.co .uk/maf/wluk/app/document?&src=rl&srguid=ia744d05f0000012c63c7671ad803918c&d ocguid=I60AB1320E42811DA8FC2A0F0355337E9&hitguid=I60AB1320E42811DA8FC2A0F0355 337E9&spos=1&am p;epos=1&td=1&crumb-action=append&context=9 )

Due to his failure to act, the accused was convicted of assisting in the retention of stolen

goods for the benefit of another contrary to s.22 Theft Act 1968. ( Jonathan Herring, criminal law ( 6th edn, palgrave macmillan law masters, 2009 ) 47-49 )

Secondly there are Contractual duties, where in a duty to act may arise as a result of a

contractual obligation. ( Jonathan Herring, criminal law ( 6th edn, palgrave macmillan law masters, 2009 ) 38-40 )

Lets look at a hypothetical situation for instance, where in you are employed as the

nurse of a blind man to look after him, you see him about to walk over the edge of the

cliff but do not shout a warning, as a result he falls over the cliff, this makes you liable

for his death as you had a legal duty to take care of him. ( Jonathan Herring, criminal law ( 6th edn, palgrave macmillan law masters, 2009 ) 38-40 )

Thirdly there is Assumption of responsibility, where in a ‘duty to act’ arises in cases

where the defendant has ‘assumed responsibility’ for the well being of the victim, this

may be inferred from a blood relationship or where the accused has undertaken to care

for another person. ( Jonathan Herring, criminal law ( 6th edn, palgrave macmillan law masters, 2009 ) 38-40 )

In the case of Stone and Dobinson(Stone and Dobinson [1977] 1 QB 354.Court of

Appeal), Stone’s sister came to live with them, she suffered from anorexia nervosa, but

refused to see a doctor or leave her room, and eventually died of toxaemia, as a result

Stone(who was nearly blind and of low intelligence) and Dobinson(who was ‘ineffectual

and inadequate’) were convicted of manslaughter and appealed. ( Jonathan Herring,

criminal law ( 6th edn, palgrave macmillan law masters, 2009 ) 174-176 )

The appellants made some effort to help her by washing and feeding her and

by trying to trace her doctor, but failed in this endeavour. ( Jonathan Herring, criminal law ( 6th edn, palgrave macmillan law masters, 2009 ) 174-176 )

It was held that they had been under a duty to summon medical help for the victim if

they could not care for her themselves, there was evidence on which the jury was

entitled to find that a duty to care had been assumed by the and that they failed to

discharge this duty, their appeals were therefore dismissed. ( Jonathan Herring, criminal law ( 6th edn, palgrave macmillan law masters, 2009 ) 174-176 )

The fourth situation in which the court has found a duty to act is where the defendant

has created a dangerous situation and then failed to prevent a harm occurring as a

result. ( Jonathan Herring, criminal law ( 6th edn, palgrave macmillan law masters, 2009 ) 38-41 )

For example in the case of Miller( Miller [1983] 2 AC 161.House of Lords), the accused

was sleeping as a vagrant in an unoccupied house and fell asleep on the mattress with a

lighted cigarette, he woke up to find the mattress alight, but did not attempt to put out

the fire and moved into another room, as a result the house caught fire and substantial

damage was caused. ( Jonathan Herring, criminal law ( 6th edn, palgrave macmillan law masters, 2009 ) 47-49 )

Miller( the accused) was convicted of arson, the trial judge ruled that, even though he

started the fire unintentionally, he became under a duty to take some action to put it out

once he became aware of its existence. ( Jonathan Herring, criminal law ( 6th edn, palgrave macmillan law masters, 2009 ) 38-41 )

The House of Lords adopted the view of the trial judge that once Miller became aware

of the existence of the fire he was under a duty to take some action to pull it out,

although not disapproving of the alternate view of the Court of Appeal that the whole

course of conduct of the accused, both actions and omissions, should be seen as part of

one uninterrupted actus reus, during the latter part of which he had the necessary mens

rea. ( Jonathan Herring, criminal law ( 6th edn, palgrave macmillan law masters, 2009 ) 47-49 )

Apart from these, there are some other novel situations too where the courts have found

a ‘duty to act’.

For instance in the case of Speck( [1977] 65 Cr App R 151 ), the defendant was charged

with committing an act of gross vulgarity towards a child, evidence being that when an

eight year old girl placed her hand on his trousers over his penis, he allowed the hand to

remain there for some minutes, causing him to have an erection. ( Andrew Ashworth,

Principles of Criminal Law ( Fifth Edition OUP Oxford,2006) 109-113) )

The Court of Appeal held that the defendant’s failure to remove the hand amounted to

an invitation to the child to continue with her act, and that the offence would then be

made out. ( Andrew Ashworth, Principles of Criminal Law ( Fifth Edition OUP Oxford,2006) 109-113) )

Thus after addressing both sides of the topic, I would like to make a conclusion. In my

opinion the position of English law on criminal liability for omissions stands corrected.

Criminal sanction should not apply to omissions, unless there is a ‘duty to act’.