Omissions in English criminal law

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The omissions of individuals are generally not criminalised in English criminal law , save in many instances of a taking on of a duty of care, having contractual responsibility or clearly negligent creation of a hazard. Many comparator jurisdictions put a general statutory duty on strangers to rescue [1] – this is not so in English law. Defenders and reasoners of the position regard it as wrong for the criminal law to punish people in many circumstances for committing no physical act, which it is argued would be an infringement on human autonomy. [2] Academics arguing for reform argue that a social responsibility to assist others should exist, particularly where there would be no danger to the rescuer. [3]

Contents

Liability for omissions has long existed where a pre-existing duty can be established between two parties. For example, where a person accidentally creates a small fire in a flat, they owe a duty to take reasonable steps to extinguish it, or to summon help. [4] A special duty, parental responsibility, exists between parents/guardians and their children, and an omission of these to use best endeavours to save their young child from drowning would result in criminal liability, as it is deemed such a person (and those in loco parentis) should ensure the wellbeing of the child. [5] Other duties may be inferred from contractual obligations. An illustration of this tested in a court of precedent is the liability of any person employed to ensure people do not cross a level crossing over an active track, where abandoning such a post. [6]

History of omissions

"A number of people who stand round a shallow pool in which a child is drowning, and let it drown without taking the trouble to ascertain the depth of the pond, are no doubt, shameful cowards, but they can hardly be said to have killed the child."
The general approach taken to omissions, as outlined by James Fitzjames Stephen, History of Criminal Law (1883), Vol 3, p. 10

The courts were initially reluctant to impose liability for omissions, as demonstrated by the early case of R v Smith, [7] decided in 1869. The facts were that a watchman employed by a railway company took a break from his duties, and in this time a man was killed by an oncoming train. Lush LJ held that whilst an omission could constitute an act of murder, because there was no statutory duty for the railway to provide a watchman, there could not be any criminal liability. [8] However, thirty years later, in the case of R v Pittwood , [9] the court adopted a different stance to a case of similar facts. In this case, a gatekeeper for a railway service in Somerset negligently forgot to close a gate – allowing access by vehicles (horse-drawn) over a level crossing – whilst gone to lunch. It was held that although he was privately employed, he had materially contributed to accident, by opening the gate, then failing to close it. [8] The reasoning used by the courts as in this case can be found as being problematic to establish liability for many omissions. Lord Justice Wright's position was that the watchman's misfeasance contributed to the accident, which would suggest that it was his opening of the gate which was criminalised, rather than his failure to shut it. [10] It has been submitted by John Smith that the judgment implies an acquittal would be possible if the watchman had come on duty to find an open gate and then not shut it, an outcome which Smith describes as "morally offensive". [10]

The decision shows the general reluctance of the 19th century courts of precedent to state, outright, an omission may be criminal save for R v Instan (1893) a case of allowing a relative to die by not continuing feeding them, and it has been said that such attempts to distinguish between acts and omissions are at least unhelpful, and possibly dangerous. [10]

A modern recognition by the House of Lords that a failure to act can result in criminal liability can be found in R v Miller . [11] In this case a squatter occupying a house fell asleep whilst smoking a cigarette, resulting in a small fire starting on his mattress. Rather than putting out the fire, he removed into an adjacent room, and fell asleep, resulting in the house catching fire. The defendant was charged arson, under the Criminal Damage Act 1971. In dismissing his appeal that a failure to act could not generally result in criminal liability, Lord Diplock stated that:

I see no rational ground for excluding from conduct capable of giving rise to criminal liability, conduct which consists of failing to take measures that lie within one's power to counteract a danger that one has oneself created, if at the time of such conduct one's state of mind is such as constitutes a necessary ingredient of the offence. [12]

It is suggested that the principles set out in R v Miller are likely applicable to any instance where an individual, in negligently creating a risk, fails to take steps that any reasonable individual would to avert risk to others. [13] Whilst no general duty would exist for an uninvolved individual to try to stem a fire, or to call the fire brigade, it is the causal link between an individual's actions in creating a risk which result in a duty arising to prevent others from harm. [14]

Situations creating a duty to act

Various situations exist in which the courts will impose a duty to act, generally resulting from a pre-existing relationship or contractual duty. Despite the reluctance of English criminal law to impose liability for omissions, there also exist a number of statutes which create criminal offences for a failure to undertake a certain act, as well as others which have been interpreted to impose liability for a failure to act. [15]

Duties arising out of a relationship

It has long been held that a parent owes a duty to their child to ensure they do not suffer any unreasonable detriment to health or safety. Thus a parent who omits to feed or properly care for their child may face criminal repercussions for subsequent death or injury. An early example of this principle was given by the case of R v Gibbins & Proctor, [16] where the court ruled that it was so self-evident that it did not require analysis or authority. [17] In upholding convictions for murder resulting from two parent's starvation of their child, Darling J quoted from the earlier case of R v Instan, [18] a case of similar neglect for a vulnerable individual, that:

"There is no case directly in point, but it would be a slur upon, and a discredit to the administration of, justice in this country if there were any doubt as to the legal principle, or as to the present case being within it." [19]

Following R v Gibbins & Proctor, and the passing of the Children and Young Persons Act 1933, it became a criminal offence to neglect a child in a way which would likely cause injury or risk to health. It is still likely however that following the more recent case of R v Stone & Dobinson, [20] a conviction for manslaughter or murder would arise, where the neglect or lack of care by a parent is either intentional, or grossly negligent. [17]

Other instances in which a duty may arise include spousal relationships, and family relations, where they are of sufficient proximity. [21] A recent case affirming a duty to a spouse is R v Hood, [22] where the Court of Appeal upheld a husband's conviction of gross negligence manslaughter, after he failed to summon medical attention for his wife – a sufferer of osteoperosis – after she fell and broke a number of bones. Familial relationships have been found to infer a duty to act where the proximity of the two family members is that of the same household, as shown by the cases of R v Stone & Dobinson and R v Chattaway, [23] where neglect for an elderly sister and a daughter resulted in convictions of murder and manslaughter. Further, in the case of "R v BW & SW (No 3)" the mother of the deceased seven-year-old child was convicted of murder and father of manslaughter where the parents neglected to provide adequate nourishment and medical attention for their child. [24]

Contractual duties

Where an individual is contracted to perform certain duties, a failure to do so may result in criminal liability. The principle has been an extension of that in Instan (see above); [25] the reasoning included seeing the facts as a quasi-contract of mutual benefit, so as to put a duty upon the defendant to act. [26] As demonstrated by 'R v Pittwood (1902), [27] where a gatekeeper was found criminally liable for failing to perform his duties correctly, this principle may be extended to instances where the injured individual is a third party. [28]

Creation of a dangerous situation

A clear circumstance where an individual may be found liable for omitting to act is where they create some kind of dangerous situation, which may reasonably put others at risk. In such instances, if the individual is aware that they have created the risk, they are under an obligation to prevent harm from resulting. [28] The principles outlined by Lord Diplock in R v Miller show clearly that there is a duty for risk creators to take any measure that is reasonably within their power, and that a failure to do so will often result in criminal liability. [29] Such duties may also arise where an individual, who is unaware of any risk their conduct creates, becomes aware that they have created a dangerous situation, and then fails to act. Where in Fagan v Metropolitan Police Commissioner [30] a man unintentionally drove onto a policeman's foot, it was his failure to move after he became aware of his conduct that formed the basis for his conviction.

Duties arising from statute

Where legislation imposes cobhead's liability for an omission, then the issue is straightforward and the general dislike for omissions liability is displaced. For example, failing to provide a specimen of breath at the roadside is by definition a criminal omission.

Related Research Articles

Negligence is a failure to exercise appropriate and or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as negligence involves harm caused by failing to act as a form of carelessness possibly with extenuating circumstances. The core concept of negligence is that people should exercise reasonable care in their actions, by taking account of the potential harm that they might foreseeably cause to other people or property.

Actus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law−based criminal law jurisdictions of England and Wales, Canada, Australia, India, Kenya, Pakistan, Philippines, South Africa, New Zealand, Scotland, Nigeria, Ghana, Ireland, Israel and the United States of America. In the United States, some crimes also require proof of an attendant circumstance.

In criminal law, criminal negligence is a surrogate mens rea required to constitute a conventional as opposed to strict liability offense. It is not, strictly speaking, a mens rea because it refers to an objective standard of behaviour expected of the defendant and does not refer to their mental state.

Absolute Liability is a form of a strict, secondary liability that arises under the common law doctrine of agency, respondeat superior, the responsibility of the superior for the acts of their subordinate or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator. It can be distinguished from contributory liability, another form of secondary liability, which is rooted in the tort theory of enterprise liability because, unlike contributory infringement, knowledge is not an element of vicarious liability. The law has developed the view that some relationships by their nature require the person who engages others to accept responsibility for the wrongdoing of those others. The most important such relationship for practical purposes is that of employer and employee.

Delict (Scots law)

Delicts in Scots Law are civil wrongs which are actionable in Scottish courts. The equivalent term in English law and other common law jurisdictions is known as tort law. The most discussed delict is the delict of negligence which amongst other things, imposes personal obligations to make reparations caused by breach of a duty of care or, arguably, the duty to refrain from committing such breaches.

Gross negligence is the "lack of slight diligence or care" or "a conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party." In some jurisdictions a person injured as a result of gross negligence may be able to recover punitive damages from the person who caused the injury or loss.

Corporate manslaughter is a criminal offence in English law, being an act of homicide committed by a company or organisation. In general, in English criminal law, a juristic person is in the same position as a natural person, and may be convicted for committing many offences. The Court of Appeal confirmed in one of the cases following the Herald of Free Enterprise disaster that a company can, in principle, commit manslaughter, although all defendants in that case were acquitted.

Causation is the "causal relationship between the defendant's conduct and end result". In other words, causation provides a means of connecting conduct with a resulting effect, typically an injury. In criminal law, it is defined as the actus reus from which the specific injury or other effect arose and is combined with mens rea to comprise the elements of guilt. Causation only applies where a result has been achieved and therefore is immaterial with regard to inchoate offenses.

In the English law of tort, professional negligence is a subset of the general rules on negligence to cover the situation in which the defendant has represented him or herself as having more than average skills and abilities. The usual rules rely on establishing that a duty of care is owed by the defendant to the claimant, and that the defendant is in breach of that duty. The standard test of breach is whether the defendant has matched the abilities of a reasonable person. But, by virtue of the services they offer and supply, professional people hold themselves out as having more than average abilities. This specialised set of rules determines the standards against which to measure the legal quality of the services actually delivered by those who claim to be among the best in their fields of expertise.

In criminal law, corporate liability determines the extent to which a corporation as a legal person can be liable for the acts and omissions of the natural persons it employs. It is sometimes regarded as an aspect of criminal vicarious liability, as distinct from the situation in which the wording of a statutory offence specifically attaches liability to the corporation as the principal or joint principal with a human agent.

An omission is a failure to act, which generally attracts different legal consequences from positive conduct. In the criminal law, an omission will constitute an actus reus and give rise to liability only when the law imposes a duty to act and the defendant is in breach of that duty. In tort law, similarly, liability will be imposed for an omission only exceptionally, when it can be established that the defendant was under a duty to act.

<i>R v Tutton</i>

R v Tutton, [1989] 1 S.C.R. 1392 was a decision of the Supreme Court of Canada on the mens rea requirements for criminal offences related to manslaughter. The Court was split three to three over whether two parents, believing that their diabetic child was cured by God, are guilty of manslaughter for intentionally failing to give the child his insulin.

In English tort law, an individual may owe a duty of care to another, to ensure that they do not suffer any unreasonable harm or loss. If such a duty is found to be breached, a legal liability is imposed upon the tortfeasor to compensate the victim for any losses they incur. The idea of individuals owing strangers a duty of care – where beforehand such duties were only found from contractual arrangements – developed at common law, throughout the 20th century. The doctrine was significantly developed in the case of Donoghue v Stevenson, where a woman succeeded in establishing a manufacturer of ginger beer owed her a duty of care, where it had been negligently produced. Following this, the duty concept has expanded into a coherent judicial test, which must be satisfied in order to claim in negligence.

In the English law of homicide, manslaughter is a less serious offence than murder, the differential being between levels of fault based on the mens rea or by reason of a partial defence. In England and Wales, a common practice is to prefer a charge of murder, with the judge or defence able to introduce manslaughter as an option. The jury then decides whether the defendant is guilty or not guilty of either murder or manslaughter. On conviction for manslaughter, sentencing is at the judge's discretion, whereas a sentence of life imprisonment is mandatory on conviction for murder. Manslaughter may be either voluntary or involuntary, depending on whether the accused has the required mens rea for murder.

Manslaughter is a common law legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker Draco in the 7th century BC.

English criminal law legal system of England and Wales relating to crime

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<i>Smith v Eric S Bush</i>

Smith v Eric S Bush [1990] UKHL 1 is an English tort law and contract law case, heard by the House of Lords. First, it concerned the existence of a duty of care in tort for negligent misstatements, not made directly to someone relying on the statement. Second, it concerned the reasonableness of a term excluding liability under the Unfair Contract Terms Act 1977, s 2(2) and s 11.

Fault, as a legal term, refers to legal blameworthiness and responsibility in each area of law. It refers to both the actus reus and the mental state of the defendant. The basic principle is that a defendant should be able to contemplate the harm that his actions may cause, and therefore should aim to avoid such actions. Different forms of liability employ different notions of fault, in some there is no need to prove fault, but the absence of it.

Criminal law is the body of law that relates to crime. It proscribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law is established by statute, which is to say that the laws are enacted by a legislature. Criminal law includes the punishment and rehabilitation of people who violate such laws.

English law contains homicide offences – those acts involving the death of another person. For a crime to be considered homicide, it must take place after the victim's legally recognised birth, and before their legal death. There is also the usually uncontroversial requirement that the victim be under the "Queen's peace". The death must be causally linked to the actions of the defendant. Since the abolition of the year and a day rule, there is no maximum time period between any act being committed and the victim's death, so long as the former caused the latter.

References

  1. ↑ For example, the French Penal Code sets out a duty to rescue where there is no risk to the possible rescuer, in Section 63.
  2. ↑ Ashworth, p. 427
  3. ↑ Ashworth, p. 428
  4. ↑ As demonstrated in the case of R v Miller [1983] 2 WLR 539.
  5. ↑ Mead, p. 164
  6. ↑ R v Pittwood
  7. ↑ R v Smith (1869) 11 Cox CC 210
  8. 1 2 Smith, p. 90
  9. ↑ R v Pittwood (1902) 19 TLR 37
  10. 1 2 3 Smith, p. 91
  11. ↑ R v Miller [1983] 2 WLR 539
  12. ↑ [1983] 2 WLR 539, at 176
  13. ↑ Ashworth, p. 439
  14. ↑ Ashworth, p. 440
  15. ↑ Ormerod, p. 78
  16. ↑ R v Gibbins & Proctor (1919) 13 Cr App R 134
  17. 1 2 Ashworth, p. 441
  18. ↑ R v Instan [1893] 1 QB 450, This case involved a woman of full age who neglected to feed or call medical attention for her elderly and sick aunt, for a period of ten days.
  19. ↑ [1893] 1 QB 450, at 454
  20. ↑ R v Stone & Dobinson [1977] QB 354. This case involved the wilful neglect and lack of care for a mentally infirm woman, by her sister.
  21. ↑ The requirement for proximity is discussed further by Ashworth, p. 442
  22. ↑ R v Hood [2004] 1 Cr App R (S) 73
  23. ↑ R v Chattaway (1924) 17 Cr App R 7
  24. ↑ R v BW & SW (No 3) [2009] NSWSC 1043 AustLII
  25. ↑ R v Instan [1893] 1 QB 450
  26. ↑ [1893] 1 QB 450, at 453–454
  27. ↑ R v Pittwood (1902) 19 T.L.R. 37
  28. 1 2 Ormerod, p. 83
  29. ↑ [1983] 2 AC 176
  30. ↑ Fagan v Metropolitan Police Commissioner [1968] 1 QB 439

Bibliography

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