Every offence require proof of the actus reus and mens rea. The question is focus on actus reus. There’re three categories which are under actus reus. Those are positive act, voluntary act and causation. The general rule is that every offence must be committed by way of a positive act. The basis of this requirement is that a person should only be found guilty for something which they actually did and not something which they fail to do. This would be in lie with the principle of responsibility. However, as stated in the question, there’re circumstances where a person can be found guilty in relation to a failure to act. The basis justification for such liability is because the defendant had a duty to act and failed in that duty. Whether such liability is in fact justified, will be discuss as follows.
The first circumstance of ommission liability is that imposed under statute.Statutory duty are largely regulatory in nature as they’re enacted by the law.There are numerous examples of the courts’ construction of words to include liability for omission. In R v Sharma, a conviction for falsifying a document required for an accounting purpose contrary to the Theft Act 1968, s 17(1)(a), was upheld where the defendent omitted entirely to fill in a form which it was his duty to complete. Similarly,in R v Firth, a doctor was held to have deceived a hospital contrary to the Theft Act 1978, s 2(1) by failing to inform the hospital that certain patients were private patients. In each of the cases, liability was imposed on the defendant in relation to a failure to act in accordance with a duty which was provided for by the law. One is of the opinion that imposition of omission liability in relation to a breach of statutory duty is justify because the duty is imposed by enacted and particularly if the legislator is being guided by the principle of minimal criminalisation, these duties would only be required in order to ensure and protect a minimal standard of public well-being and safety which is of paramount importance particularly as statutory duties are in essence regulatory.
The second instance of a failure to act that can constitute the actus reus of an offence is the duties of law enforcement. It is stated that any member of law enforcement has the duty to preserve the peace and to protect the public. An example of offence of pure omission are also to be found in Dytham (1979) QB 722; a police officer was held to be guilty of a common law misdemeanour when, without justification or excuse, he failed to perform his duty to preserve the Queen’s peace by protecting a citizen who was abeing kicked to death. Likewise, in Brown (1841) Car & M 314; The defendant was a normal citizen who is found guilty of an offence when he fails to respond to a constable’s call for assistance in keeping the peace. In one point’s of view, it’s court decision is reasonable in Dytham because the police officer is obling to his duty eventhough when he’s off-duty, and more importantly the incident happen during his working hours. However, one may not agree with the decision in Brown’s case because the policeman cannot assume that when a normal citizen or if the old man who’s at the scene has the phsycal ability or mental strength to stop a riot, will abet in the riot. In other words, the decision that the citizen has to make at the moment claims to be too wide as it fails to take account whether the defendant has the capacity to appreciate the risk.
Thirdly, contractual duties. A contract may found a duty under criminal law to persons, including those not party to the contract but likely to be injured by failure to perform it. The most obvious examples in this category are those who are employed as carers or healthcare professionals. In R v Pittwood, a railway crossing gate-keeper opened the gate to let a cart pass and went off to his lunch, forgetting to shut it again. Ten minutes later, a haycart was struck by a train while crossing the line. The Pittwood was convicted of manslaughter. It was argued on his behalf that he owned a duty of care only to his employers, the railway company, with whom he contracted. This category of liability is justify because it seems clear that Pittwood is strictly within the bound of the terms of the contract unless when the relationship ends, as when he leaves the service of his employer.
Assumed duties refer to a person either expressly or impliedly voluntarily assumed responsibility for another person welfare. The first category is the parent and child relationship. Parents owe a duty to their children to act to save them from harm. This presumably children above the age of responsibility owe a corresponding duty to their parents.The leading authority leading to this category is Gibbons & Proctor (1919) 13 Cr App R134; a man and the woman with whom he was living were convicted of muder of the man’s child by withholding food. By living with the man and receiving money from him for food the woman had assumed a duty towards the child. It would be strange indeed if causing death should be capable of commission by omission and causing grievous bodily harm not under S18 of the 1861 Act. In Emery, a case of cruelty to a child, where it was said a parent can be found guilty of abetting if they fail to stop another person from harming their child.One is of the opinion that imposition of omission liability in relation to a parent and child relationship is unjustify because as a matter of principle it can be argued that the important issue is not one of blood or formal legal relationship, but the interdependence. Also, it is equally unclear when if ever, the relationship duty ends.
When a person fails to act and had voluntarily assumed the responsibility to care for all other relationship apart from parent and child, the person will be liable of an offence under omission liability. In R v Stone and R v Dobinson; the appellants were John Edward Stone ( a man aged 67, of below average intelligence, partially deaf and almost blind ) and Gwendoline Dobinson ( aged 43 and described by the court as ‘ineffectual and inadequate’). Stone’s sister, Fanny aged 50, came to live with them and their son, Cyril. She suffered from aneroxia nervosa. Fanny grew weaker and became confined to bed. The appellants did nothing to get her for help as they have difficulty looking after themselves. Subsequently, she was found dead. The appellants were convicted of manslaughter. In this case, I will argue that the court decision is justify because even if Stone and Dobinson had voluntarily assumed responsibility to care for Fanny, because of the low capabilities of the two accused, they should be let alone being expected to offer a reasonable level of care to Fanny. This brings out the difficulty of establishing the requisite causal link between the defendant’s inactivity and the harms that occur ( a person cannot ‘cause’a result by doing nothing ).
Besides, it is submitted that people who jointly engage in a hazardous activity whether lawful or unlawful may also owe duties to one another. The courts have exhibited reluctance to impose obligations on this basis alone. In Sinclair Johnson and Smith, manslaughter convictions were upheld against those who failed to seek medical care for a comatose fellow drug-taker, but the duty was based on the previous friendship and bond between the individuals, rather than the joint act of drug administration. In Ruffell, a manslaughter conviction was upheld where the defendant had been jointly involved in drug taking with the deceased and had placed him outside in temperatures of six degrees. Naturally, it is said that it is safer to do something hazardous with somebody because they can help out each other during danger. My argument is there is something morally repugnant about holding an individual responsible for an independent process over which he or she exerts no control ( where in both cases, the defendant had taken drugs ).
Sometimes, it may be that if someone owns a piece of property and another person in his or her presence commits a crime using that property, the owner is under a duty to seek to prevent the crime in so far as is reasonable, if the person fails to prevent it, they can be held guilty as a secondary participant to that offence. For example, in Tuck v Robson the owner of a publican failed to intervene to prevent customers on his premises drinking after hours. He was found to have aided and abetted their crime. This is because when the mistake relates to an excusatory defence ( drunkness ), it must be reasonable. However, the precise scope of this duty is unclear and uncontrollabe. It can be argues that one neighbour owes a limited duty to another neighbour; for example, ensure that a fire does not spread from his or her house.
The courts have held that some cases which appear to be cases involving omissions have, in fact involved a ‘continuing act’. The omission is part of a series of action which started out innocently but which inadvertently put the victim in harms way, then the defendant has the responsibility to remove the victim from that harm. In Fagon v Metropolitan Police Commissioner , Fagan drove his car accidentally onto a policeman’s foot. When the policeman asked him to remove it he refused to do so. By the time he realised his car was on the foot, he was not doing an act. The Divisional Court, however upheld Fagan’s conviction that it amounts to an omission because it arouse due to the defendant failure to remove the car. Such liability is justified because it is clear that the policeman’s foot will not be injured if Fagon had immediately removed the car. As such, he the mens rea by the time he realised his car was on the policeman’s foot.
The last instance that falls under omission liability is creation of danger. This is when a situation where the defendant usually through an illegal action causes a dangerous situation which involves the victim. Therefore, if he fails to remove the victim from that situation, he will be guilty of an offence. The leading case on this is R v Miller, the defendant was drunk, fell asleep with a lighted cigarette in his hand in the house which he was staying. He subsequently woke to discover that his cigarette had set his mattress on fire. He simply moved out of the room into a neighbouring room. He was convicted of arson. The problem was the requirement that the actus reus and mens rea of the offence must exist at the same moment in time. At first sight in Miller, the actus reus was the dropping of the cigarette, setting off the fire, but at that point there was no mens rea. However, at the time when the defendant had the mens rea ( when he realised there was a fire) he was not doing anything. In the light of the above, it seems that the failure to act in this case satisfies the moral need to punish, protect a minimal standard of public well-being and safety which is of paramount importance particularly in creation of danger.
There are five arguments which support this situation where a person can be liable in criminal law for an omission to act. These are statutory duty, contractual duty, third party, continuing act and creating of danger. This category should be maintained. However, omission liability is good to a certain extent when there are four arguments which do not support the statement above. It is well argued that there is some degree of responsibility for its own in categories under duties of law enforcement, parent and child duty, joint hazardous activity and ownership or control of property. Therefore, the defendant should not be liable for the ‘full’ offence, but for a specific offence of failure to act.
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