1. The voluntary Act requirement:
Usually you cannot commit a crime without doing an act. Sitting in a room thinking the most evil of thoughts and tricks the most heinous of plans is not an offence. Not only must there be an act; there must be a voluntary act. Lord Denning explained the requirement that a voluntary act is essential in every criminal case. Where the defendant is not acting voluntary he or she is said to be acting as an automaton and will not be guilty of an offence because the mens rea and actus reus will not be proved. Example of an involuntary act is where a defendant is rendered unconscious, falls over, and injures someone.
There are a number of crimes which appear to be exceptions to the rule that a crime must involve an act of the defendant. In brief, the exceptions include the following:
1) sometimes a failure to act, an omission, can give rise to criminal liability. In such cases the failure to act can constitute the actus reus of the crime.
2) Sometimes the actus reus of an offence is defined as a state of affairs or set of circumstances, which may or may not involve an actual act. For example, possession of a firearm can, in some circumstances, amount to an offence.
3) Under some circumstances a defendant can be responsible for the acts of another person.
Generally a person will not be liable for simply failing to act. Criminal lawyers are keen to point out that if a person comes across a child drowning in a pond and simply walks by leaving the child to die, there is no criminal liability. Some countries, for example France, have statutes that make it a criminal offence not to offer aid to those you come across who are in peril, when it is reasonably practical for you to do so. But, there is no such general duty in English and Welsh law. This is not to say that a defendant is never criminally liable for an omission: a defendant can be criminally liable for an omission where there is a duty to act in a particular way.
4. Crimes that cannot be committed by omission:
There are certain crimes that cannot be committed by an omission. These are statutory crimes which in their definition require an act to be committed. For example in Ahmad the defendant was charged with an offence under the Protection from Eviction Act 1977 which required proof of the defendant doing acts calculated to interfere with the victim’s peace and comfort. The defendant , a landlord, failed to carry out modifications on the victim’s house and this left the premises uninhabitable, thereby interfering with the tenant’s peace and comfort. The failure to carry out the alterations was not an act and so the landlord was not guilty of the offence.
5. When the defendant is under a duty to act:
English criminal law has tended to restrict criminal liability for omissions by limiting the range of situations in which a duty can be said to arise.Beyond those situations, there appear to be no general duties imposed on citizens. The duty to act can arise in the following eight ways:
a) Statutory duty: there are a large number of statutory duties requiring people to act in a particular way. For example, under section 6 of the Road Traffic Act 1988 a driver who fails to provide a sample of breath when required to do so by a constable under certain circumstances commits a criminal offence. There are too many examples of statutory duties to act for them all to be listed here.
b) Duties of law enforcement: Police officers are under a duty to assist members of the public in danger: Dytham.
c) Contractual duty: where a person is under a contractual duty to help another he or she may be under a duty under criminal law to do so. For example, in Pittwood the defendant was employed as a gate-keeper on a railway line. One day he failed to perform his duties and did not close the gate when required. This led to an accident in which a train hit a farm cart and a man was killed. It was held that he could be liable for manslaughter, because he was required under his contract of employment to ensure that the gate was shut. His omission, in failing to shut the gate, was in breach of his contractual duty and so could constitute a criminal offence.
d) Assumed duties: People who voluntarily assume responsibility for another’s welfare will be under a duty to care for him or her. The assumption of responsibility may be express or implied. In Charlotte Smith a master was found guilty of the homicide of his servant after he failed to give her sufficient food and general care.
Some duties arise automatically: a parent is automatically responsible for caring for a child. So, if a parent fails to feed a child and the child dies of starvation then the parent might be liable even though the failure to feed was an omission: Gibbons and Proctor. Similarly, a parent who stands by and lets another person harm his or her child might be guilty of an offence: Emery. In Sheppard it was held that there was no duty owed by a parent to an 18 year old daughter. This suggests that once a child reaches majority the legal duty towards the child may come to an end.
Whether a duty will be assumed in the context of other relationships is less clear. It is generally assumed that spouses owe a duty to assist each other if they are in peril: Bonnyman. In terms of long-term partners, although in an American case, People v. Beardsley, it was held that a man did not owe a duty to his lover who took morphine in his presence. It may be that older children owe duties towards their elderly parents, but the existence or extent of such a duty is yet to be tested in the courts.
It may be that outside the parent-child relationship the duty that will be imposed will depend on the nature of the relationship between the two parties. The court will be reluctant to impose a duty between two spouses who have separated, but may be very willing to impose a duty if one person is disabled and depends on a friend for their well-being.
Controversially, a duty of care was held to exist in R v Stone and Dobinson. At the heart of this decision is the finding that Stone and Dobinson had voluntarily assumed responsibility to care for Fanny. The decision is highly controversial because of the low capabilities of the two accused. It appears they had enough difficulty looking after themselves effectively, let alone being expected to offer a reasonable level of care to Fanny. It is not clear from Stone and Dobinson what was crucial to the finding of a duty. Was it the biological relationship, the undertaking of especial responsibility for the victim’s welfare, or a combination of these two factors?
E) Ownership or control of property: 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. Tuck v Robson.
f) Continuing act: The courts have held that some cases which appear to be cases involving omissions have, in fact, involved a continuing act. This can be best explained in Fagan v. Metropolitan Police Commissioner.
g) Creation of the danger: where someone has created a dangerous situation they may be under a duty to act to prevent harm resulting. The leading case is R v. Miller. This case was a difficult one for the House of Lords. The problem was the requirement that the actus reus and mens rea of the offence must exist at the same moment of 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 realized there was a fire) he was not doing anything. The House of Lords upheld the conviction by finding that Miller was under a duty to stop the fire because he had started it and that on leaving the room in breach of his duty to act he was therefore committing the actus reus of the offence.
h) Novel situations: it seems that the list of exceptions is not necessarily a closed list. The courts may be willing to create new circumstances under which there is a duty to act.
6. What is required if there is a duty to act?
The simple answer to this question is that the defendant must do what is reasonable what is reasonable will be decided by the jury. If a mother finds her child drowning in a shallow pond and she can easily save her child she should do so and if she does not she will have committed the offence of murder or manslaughter. If the child is drowning in a wild sea and she can attempt to rescue the child only by placing her own life in grave danger there is no legal obligation to do so. It may be that the reasonable thing to do is not to rescue the victim but to summon help. In Singh a landlord and his agent were responsible for failing to bring in experts when tenants complained that their gas fires were not working properly and subsequently a tenant died from escaping carbon monoxide.
One issue that is not yet resolved is whether the defendant is required to do what is reasonable for him or her or what would be reasonable for an ordinary person in his or her shoes. The Court of Appeal in Stone and Dobinson quoted, did not directly address the issue, but seemed to ignore the defendant’s disabilities and require the defendants to act as ordinary people.
It must be shown that the omission caused the harm. In other words, if the defendant had acted reasonably in accordance with his or her duty the harm would not have occurred. For example, in Dalloway, the defendant was driving a cart without keeping a proper grip on the wheel. A young child ran out in front of the cart and was killed. It was held that if the defendant was to be convicted it had to be shown that had he been driving properly and holding onto the reins he would have been able to avoid injuring the child. Similarly if a father sees his child drowning in a pond and does nothing to help he is not criminally responsible for causing the child’s death if it is shown that even if he had tried to save the child it would have been too late to do so.
7. Distinguishing between omissions and acts:
Although the law draws a sharp line between acts and omissions there can be great difficulties in distinguishing between the two. This has led some commentators to question whether it is proper to place so much weight on the distinction. Andrew Ashworth argues, although there are some clear cases of omission and some cases of act, there are many ambiguous cases in which the act-omission distinction should not be used as a cloak for avoiding the moral issues. An example of the difficulty in drawing the distinction between acts and omissions is Speck. In that case a child innocently placed her hand on a man’s genital area and he did nothing to move her hand. Was this an act or an omission by the man? It was held in effect to be an act by the man, although it might move naturally be regarded as an omission.
A leading case demonstrating the difficulty in drawing the distinction between act and omission is Airedale NHS Trust v. Bland. In order to understand the House of Lord’s judgments it is necessary to appreciate two important points of medical law. The first is that a doctor must not force the treatment on a patient who is competent and refuses to consent, even if without the care the patient will die: St George’s v S. the second is that if a patient is unable to express a view a doctor must act in the best interest of the patient: Re F, as the reasoning in Bland demonstrates, this does not mean that everything must be done to prolong the life of the patient. Sometimes it will be in the patient’s interests not to receive treatment which could prolong a painful life, but this does not permit a doctor to do an act to end a patient’s life.
There are some clear cases of omission in which it is desirable to have criminal liability, such as the parent who neglects to feed her or his child or neglects to protect it from abuse. Emery. Omissions can be involuntary or not, in the same way as acts; and, it will be argued, omissions can also be causes. Omissions liability may therefore satisfy the principle that no-one should be held liable for bodily movements that he or she did not and could not direct. It may also satisfy the principle that no person should be held liable for conduct or consequences that he or she did not cause. The precise point of the act requirement is to exclude liability for mere thoughts that do not result in some bodily movement. Omissions liability does not require any bodily movement; instead, it is premised on failure to fulfill a duty, and will only be fair if the incidence and extent of that duty are properly made known to those to whom it applies. A parent may realize that it is her or his duty to feed a child, but may take no steps to do so. Omissions liability can only be said to uphold the rationale of the act requirement, whilst departing from its terms, in so far as the relevant duty is widely publicized and widely known. In those circumstances there can be no fairness objection to holding a person liable, provided that he or she is capable of taking some steps to carry out the duty.
8. Why not to criminalize omission:
This may seem unusual and hard to justify when one considers the interests that the criminal law should protect: the interest of individual citizens in life and physical integrity would surely be close to the top of any rank order. Why, then, should we not criminalize the failure to render assistance to another citizens in life and physical integrity would surely be close to the top of any rank order. Why, then, should we not criminalize the failure to render assistance to another citizen who is in peril, in cases where assistance can be rendered without danger to oneself?
Three objections may be considered. First, it is objected that such an offence cannot be stated in other than vague terms: it is bound to include the term reasonable, to describe the steps that a citizen must take in order to avoid criminal liability, and this is unfair because it gives no clear warning to citizens of what they must do and when. That is an important claim and, it arises in many parts of the criminal law. Secondly, it is objected that one consequence of this uncertainty is that much reliance is placed on prosecutor discretion to define the effective scope of the law. This effect, also seen in some other parts of the criminal law, may be criticized as weakening the rule of law. Thirdly, and perhaps most strikingly, it is objected that the imposition of liability for omissions requires much greater justification than the imposition of liability for acts.
9. Moral arguments:
One argument is that there is a widely felt moral distinction between acts and omissions: we do much more moral wrong when we kill than when we fail to save, even when such failure violates a positive duty to prevent death. But even if such an instinct is widely felt, it only establishes that omissions are generally viewed less seriously than acts, not that they are unsuitable for criminalization-indeed, the evidence suggests otherwise. A stronger argument is that the imposition of a duty to act restricts one’s liberty to pursue one’s own ends and desires by requiring one to do a particular thing at a particular time ( e.g. to call the emergency services, or to throw a lifebelt to a drowning person), whereas the normal prohibitions of the criminal law do not injure, thieve, deceive, etc.- leave one largely free to pursue one’s own ends and desires. Thus those who place the principle of autonomy above all would be particularly opposed to omissions liability, even if they could be satisfied that omissions can fairly be regarded as the cause of harms to others in certain circumstances. Those who do not count themselves as individualistic liberals may still balk at wider liability for omissions, pointing out that one key element in the principle of autonomy is that it protects individuals against unfair claims on their time and energy. Thus Alan Norrie, who makes much of the tension between individualist and communitarian approaches to criminalization, argues that omissions liability is one of those fields in which liberalism provides a strong counterpoint to the more authoritarian tendencies that may result from making it a crime not to assist persons in peril and not to assist the police.
Arguments such as these attribute little or no weight to the harm involved, and to the protection of the fundamental interest in life and physical integrity. Of course, there is a tension between omissions liability and the principle of maximum certainty, the principle of fair warning, and a principle of minimum restrictions on individual liberty. But these three principles are often to be found in tension with the protection of interests: referring to the problem of drawing a non-arbitrary line between reasonably easy and unreasonably difficult rescues, Feinberg remarks that similar line-drawing problems exist throughout the law, and most have been found manageable. Moreover, it can be maintained that when fundamental interests (life, physical integrity) are involved, we should pause before accepting that an individual’s freedom of action is more valuable than a requirement to carry out a non-burdensome rescue. Individuals are better protected by keeping omissions liability to a minimum. Article 223 of the French Penal Code criminalizes:
1) a person who voluntarily neglects to prevent a serious crime or offence against the person, if that crime could be prevented without personal risk or risk to others; and
2) a person who voluntarily neglects to give, to a person in peril, assistance which could be rendered without personal risk or risk to others.
Similar provisions are to be found in many other European criminal codes. Article 223 (2) is a deliberate attempt to set the protection of one citizen’s life or safety above the protection of the maximum liberty of other citizens. To some extent the provision is vague; to some extent it leaves considerable prosecutorial discretion. But it does not appear to have been thought oppressive since its introduction in 1941. The argument for the provision in Article 223(1), and more especially a general duty to take reasonable steps towards law enforcement, might well be weaker in view of the difficulties and social effects of requiring citizens to assist the police. That leaves the arguments in favour of the duty of easy rescue unimpaired.
10. Distinguishing positive acts and omissions:
The distinction between positive acts and omissions is crucial as criminal liability will only be imposed for the latter if a duty to act can be established. But it is not always clear whether one is dealing with a positive act or an omission. For example, if a road worker digs a deep hole in the road and then forgets to place a cover over it with the result that a child falls in the hole and is killed, has the death been caused by the positive act of digging the hole or the omission to cover the hole?
Katz has suggested that the test for distinguishing an act from an omission should be as follows: ‘if the defendant did not exist, would the harmful outcome in question still have occurred in the way it did?’ on this test the road worker is clearly acting as his existence is critical to the causing of death. On the other hand, there is an omission where the stranger fails to rescue the drowning child because the child would still have died even if the stranger had not existed
11. An omission is a negative act:
An omission can be described as a negative act, a description which indicates that omissions are in their essence similar to rather than different from acts. Omissions can be conscious decisions either not to do something, or to do something other than the thing that is not done. Either way, to describe a failure to act is as much to describe a practical orientation to the world as is the description of an act. A failure to act is not just nothing, it is as much a description of what happened as an act itself so that negative statements like he did not pull the signal are ways of describing the world, just as affirmative statements are. It is true, as Hart and Honore’s claim suggests that an omission is likely to be described in a negative rather than a positive way, but this is only an empirical difference. It does not lead to a different evaluation of omissions and acts because both sorts of occurrences can be given both negative and positive descriptions.
The second point enlarges this first. It concerns the conflict in moral values operating in society, and the existence of values that do uphold the right not to intervene alongside values of social solidarity that demand intervention. These values of individual autonomy and freedom conflict with the claim that a person should assist his fellow human being. In other words, there are competing moral values at play-those that say that people ought to intervene in the stranger situation, and those that say they do not have to. One set of values praises a narrow individualism, the other stresses a more rounded doctrine of social responsibility. We can now see why it is wrong to reduce the analysis of omissions to those of causes, by-passing the concept of duty. The latter concept provides for a socio-political fixing of those omissions that are held to be criminal around a particular conception of what is to be expected of the individual in the Anglo-American social context, in a situation of competing conception.
12. Situational Offences:
Similar to offences involving omissions are cases where the defendant is guilty for being in a particular situation or state of affairs. Examples are being drunk while in charge of a vehicle, or possessing a drug or offensive weapon. Such offences can be seen as being compatible with the voluntary act requirement as they will at least involve an earlier act. Take being drunk in charge of a vehicle. It can be said that getting drunk and getting into a vehicle are acts.
A particularly controversial case concerning a situational offence was Larsonneur, in which the defendant was convicted of the offence of being found in the United Kingdom while being an alien to whom leave to land in the United Kingdom had been refused. The case was controversial because the defendant was in the UK only because she had been forcibly returned to the UK by the Irish police. Whether it was correct to punish her when she had performed no voluntary act to put herself in the criminal situation is hotly debated: Winzar v.Chief Constable of Kent.
However, Andrew Simester has argued that in all these cases it is not the absence of a required act that is objectionable, but the absence of a fault element. The proper approach is evident from two New Zealand prosecutions of visitors for staying after the expiration of a visitor’s permit. In Finau v. Department of Labour the conviction was quashed because D was pregnant and no airline would carry her. In Tifaga v. Department of Labour, the conviction was upheld because D was at fault in running out of money, with the result that he could not afford a ticket. The offence did not require an act (or an omission), but rather a state of affairs for which D was responsible.
The English legislature sees no objection to creating state-of-affairs offences such as ‘being found’ or ‘being drunk in charge’ without any voluntariness requirement-not even exception to cover the person who has been rendered drunk by the trick of others Cf Kingston. The courts have failed to develop the common law so as to provide a defence of compulsion or to insist on proof that D was responsible (i.e. voluntarily) for the conduct, result, or state of affairs proscribed.
Where the criminal liability can be established-there is a contrast with Anglo American law –strict liability for omission-it avoided the social responsibility what Ashworths called. The recognition as a whole anglo American tradition to individual autonomy and the right to self determination-the minimum restriction by the criminal law. Individual is doing some certain positive act. Is a greater restriction on the autonomy.
The second value put some obligation on omission-certainty-what he or she requires to do-omission liability who has to act and what have to do-the classic problem of the small child is drowning and someone is watching-what obligations on him to save the child.
Crimes are morally committed by positive act homicide is normally committed by the person. Failing to cat –fail to feed the child due to that child has starved and so died the question about harm-the anglo American act here is a duty element –presented by the story of liability in English law- common law.
Status contract-express assumption of responsibility-implied assumption of responsibility –creation of dangerous situation.
The way the anglo American law develop-the theory can be developed-the individual approach-the duty came from the individual –modern communitarian-the tow kind of approach-French approach general duty ashworth was arguing on anglo American approach.
In the anglo American law, the is not sufficient duty approach (people v. Beard Sleep) where the man goes to this mistress in the weekend-this is a drug taking cases. There was no duty that he should help her. It links up with the general sense. The parents have duty to save their child when they pass the swimming pool, whereas a stranger pass-they don’t have any duty to save the child.
In some of the cases, the judges get difficulties to find duty. (khan v. khan) where two men supplied is 15 years old who took heroine dose as she was used as a prostitute, they let her die –they were charged with manslaughter-the court said the duty should be extended under the present law there was no duty to act.
There might be a case you can develop individual duty-there might be sense of dangerous activity when somebody involved then they owe a duty to each other. The legal material is available- in English law- but makes it hard how you impose duty in that situation. You can see only there is that sort of approach there is an issue which should be resolved in the continental approach.
Two sources of moral obligation a. helpless victim 2. D is the best position to help-if we find that two elements then the judge will not have any difficulties to find duty.
The question of the ideology of the judges-the duty only owed when its taken activity. In Dabinson- there were social workers who were in better position to help.
We have already seen that there are awkward questions about whether the law should criminalize omissions. There are also powerful arguments of welfare which suggest that there are good justifications for imposing certain duties to act in extreme situations. However, whenever omissions liability is held to be justified, close attention should be paid to rule of law protections such as the principle of fair warning. This indicates that, among other things, the boundaries of omissions liability, particularly in common law, need further debate and clarification. An act requirement may be fulfilled by an omission if a duty can be established.
Is there any clear means of distinguishing acts from omissions? It has been argued that conduct should be classified as an omission if it merely returns the victim to his or her natural condition, or the condition in which she would have been but for D’s attempt to carry out treatment, or a rescue. Disconnecting a life-support machine would therefore not be classified as an act because it merely returns the patient to the condition in which he or she would have been without any treatment.
However, one advantage of categorizing the conduct as an omission is that it then makes liability depend on the recognition of a duty-which would be straightforward in the case of the rescued non-swimmer. This approach may therefore offer comfort to those who insist that the act-omission distinction should not be used to avoid or foreclose moral arguments about the proper limits of criminal liability. But it is not a clear distinction, since it remains open to manipulation in different situations. The conclusion must therefore be that, although there are some clear cases of omission and some clear cases of act, there are many ambiguous cases in which the act-omission distinction should not be used as a cloak for avoiding the moral issues.
Is the act requirement important, and should one be worried about possible departures from it? That the exclusion of involuntary movements from criminal liability shows respect for the autonomy of individuals and for their choices about what to do and what not to do. Even if a person does cause harm, liability should not follow if D was moving involuntarily as a result of some sudden affliction. The justification usually offered for the act requirement is that there should be no criminal liability without some directed movement. If there were liability for mere thoughts, not resulting in any act, this would be oppressive because there is an important moral distinction between thinking evil thoughts and beginning to put them into effect.
Anglo-American criminal law operates with an extremely narrow conception of those situations in which an omission can take the place of an act as the basis for criminal liability.
Reviewing the question of relationship duties, and touching upon some of the issues concerning blood ties and proximity of accommodation raised by Stone and Dobinson and People v. Beardsley, Ashworth raises the question whether-
…there is any defensible line which can be drawn short of a duty of common humanity owed to any person who is seen or known to be in need of urgent assistance-a form of legally-enforced social responsibility which might require anyone to spend time and money in helping any person who came destitute to his or her doorstep….
The issue is not just one of drawing a line, but of competing definitions of what duties are owed by people to each other, and this is an issue that the law of omissions short-circuits by fixing duties to a laisser faire, individualist model. Without that, it would be impossible to arrive at an agreed solution: the foreclosure achieved by individualism is necessary in the same way that it is necessary for subjective individualism to pre-empt a broader concept of recklessness.
Feinberg proposes that the duty line should be drawn not so much by law, but through the design of social institutions (the law, the welfare state). The law should impose duties in relation to the random and unpredictable emergencies of life that require time and effort, rather than money, from chance passers-by. No one should be charged with a beggar’s death since agencies of the state will not permit the beggar to die in any case.
The concept of an omission fulfills a different function in the law from that of a voluntary act because of its peculiar character. The law must only construct the individual in particular ways in order to attribute fault, it must also construct the concept of an omission in order to define the boundaries of fault. Omissions do not attach to actors in the way that acts do, so there is a double work of construction required of the law’s ideology of individualism. It is essentially the free individual of the law of contract, as developed and analogised, who plays the part of setting the boundaries of the law. Without the prior commitment associated with the free assumption of a duty, there can in general be no criminal omission.
Thus in both acts and omissions, we see the deployment of the law’s abstract individualistic categories, but to different ends. In the case of acts, the end is the securing of individual fault in relation to conduct that the state wishes to criminalise, while avoiding leakage into the system of other accounts of why people commit crimes, or what it means to act voluntarily. In the case of omissions, the aim is the circumscription of the realm of criminal acts so as to avoid leakage from the realm of normal omissions that could occur in a society based upon self-interest, wealth and poverty. There must be a law of omissions, because there are some omissions that the state does wish to criminalise. This category must be defined so as to avoid political debates within the law as to the rights and wrongs of acting or not acting, or political and moral questions about the distribution of wealth, power and responsibility in society. The law of acts secures liability for a particular group of individuals, while the law of omissions ensures that the boundaries of liability will not become extended to cover other groups who are not constructed as criminal by the dominant ideology. The narrow individualism of the law of voluntary acts excludes the social context in order to convict those who are considered socially unexpected. The narrow individualism of the law of omissions excludes the social context in order to draw a tight line around those whose conduct has already been constructed as deviant by the state and its various actors.
Criminal liability is founded on the notion of individual autonomy. A person should only be criminally liable where he or she is responsible for his or her conduct. Responsibility presumes that the conduct was voluntarily engaged on by that person. If the conduct is involuntary there should be no criminal liability.