The Law of Omissions - Case Study Example

The Law of Omissions Conventional wisdom dictates that criminal offences require proof of commission of some positive act such as stealing or killing. Even so, there are circumstances in which a failure to act or an omission, can constitute criminal conduct. The imposition of the actus rea in circumstances where the individual does not perform a positive act raises broad and complex questions of public policy. As a rule, failure to do anything is typically grounded in the tort of negligence and even so is only made out when the individual has a duty of care. This attitude is perhaps archaic and to some extent ignores modern developments and reflects nineteenth century laissez faire attitudes to social obligations. With changing times, personal responsibility for maintaining order in society can produce chaos if it is not effectively managed. The current law of omissions is predicated on traditional views that emphasised individual freedom and protection from intrusive state interference.1 As a result the concept of criminal omission evolved out of 19th century attitudes toward abstract rights and social needs.2 To this end the doctrine of omissions in criminal law was and remains narrow to the extent that the defendant’s obligation toward another required some close connection in order to justify criminal liability for an omission.3 The idea is prescribed by an “old liberal ideology.”4 Responsibility under criminal law with respect to omission does not extend to impose a duty toward strangers. The 19th century attitude toward social obligations and its embodiment in the criminal law of omission is succinctly demonstrated by the case of R v Stone and Dobinson (1977) QB 354. In this case Stone’s sister , who was anorexic resided with the defendants. The sister was ill but refused medical intervention and although the defendants make some efforts to care for her, they had not summoned medical assistance with the result that the sister died. At their trial for manslaughter the defendants argued that they had no legal duty to care for the sick woman. The Court of Appeal ruled that the duty was assumed when the defendants took the sick woman in and that their indifference constituted “an obvious risk” which in turn amounted to recklessness.5 The court stressed that “this was not a situation analogous to the drowning stranger.”6 Although this case demonstrates a break from the traditional laissez faire attitude toward omission it is still grounded in that attitude by insisting that the woman was not a drowning stranger. The break arises out of the court extending a duty of care outside of the of familial relations to the situation where a duty was assumed by conduct. In either case thel laissez faire attitude toward social obligations of the 19th century was characterised by concepts of contractual relations. This concept is obvious in R v Stone and Dobinson. Arguably, any concept of liability requires the imposition of “personal responsibility.”7 Criminal law, however does not purport to impose a duty of care on individuals, it merely attempts to set the standards of permissible conduct and to mandate compliance with those standards in liberal societies.8 While this attitude was suitable in a period where mass production and populations were relatively smaller, it is no longer suited to modern times where an omission to act could lead to wide scale chaos. The ease with which modern technology alone permits terrorists to cause devastation is one example of how criminal responsibility under omission to act requires revision and departure from the narrow standards of the past. The Terrorism Act 2006 broadens police powers in ways that would have shocked the conscience of the community previously. However, in times where national security is at risk, attitudes toward moral responsibilities have changed. In a modern society, where national security challenges personal liberties, the dictates of the past no longer have a place in the modern world. Just as terrorism has necessitated limitations on individual freedoms it ought to function to expand individual responsibilities toward the prevention of crime and harm. Modern consciousness has led to some changes by the legislatures with respect to criminal responsibility in the law of omissions. Yet, the common law remains grounded in the 19th century laissez faire attitudes toward social obligations. Some of these changes reflect a growing societal need for community supervision of minors. The result is, there have been a growing body of statutes defining those duties, giving rise to criminal liability for omission. The Children and Young Persons Act 1933 and the Education Act 1944 set the tone for creating general duties with respect to the welfare of minors. The age of industrialism has reached new heights in modern times, requiring supervision of motor vehicles. For example the Road Traffic Act 1988 imposes criminal liability for failure to report an accident.9 As Ashworth explains, what has occurred is loose representation of state intervention which has only given way to an “an elaborate statutory scheme of regulation of industry and commerce.”10 The common law however, has yet to follow this example. This imposition of criminal responsibility in cases of omission requires careful consideration with respect to its role within the parameters of standards of conduct in liberal societies. English law attempts to justify relaxed standards of criminal omissions by placing it within the scope and range of criminal negligence and duty. The greatest controversy surrounds questions which focus on the extent to which the law should impose collective responsibilities on individuals within a society, to take positive action and to impose sanctions when that duty is breached. In this regard, criminal responsibility is marked by ambiguity, uncertainty and unpredictability. For instance Ashworth explains that the courts have agreed that the duty to rescue another from harm can only be imposed in circumstances where that rescue is “easy” yet the courts offer no guidance on what amounts to an easy rescue.11 In other words, omission can only give rise to criminal liability if there is a duty on the part of an individual, although that duty must not expose the individual to some vague and undefined level of harm himself. Glanville Williams points out that: “A crime can be committed by omission, but there can be no omission in law in the absence of a duty to act. The reason is obvious. It there is an act, someone acts, but if there is an omission, everyone (in a sense) omits. We omit to do everything in the world that is not done. Only those of us omit in law who are under a duty to act.”12 This duty to act can be prescribed by statute. For example Section 6 of the Road Traffic Act 1988 makes it an offence to refuse to participate in a breath test upon request by the relevant authorities.13 Likewise child neglect in circumstances where any person over the age of 16 has a duty to care for the child in question constitutes a statutory offence of omission.14 Both of these statutory offences are properly speaking offences of mere omission and speaks to the quest for regulating conduct and social responsibility. Public safety is at risk in the road traffic offence of omission and if drunk drivers were under no obligation to participate in breath tests, the streets would become unbearably dangerous. This is particularly important in a society where the incidents of motor activity have advanced to mammoth proportions. Therefore this ambit of social responsibility by criminalizing omission is for the collective safety of society. Similarly, children are particularly vulnerable to harm and require constant supervision. If persons who were charged with the supervision and welfare of children were not accountable for protecting children from avoidable harm, children would be exposed to inordinate harm with no consequences for those who can eliminate harm and have a duty to do so. Be that as it may, traditional attitudes toward omission continue to reflect a reluctance to impose criminal liability for a failure to take action to prevent harm to another.15 This attitude is founded on principles and theories of criminal justice. These theories are predicated on the philosophy that the purpose of criminal law is to prevent positive acts that cause harm and the duty to perform good deeds is a matter for morality and religion.16 Another reason for the reluctance to impose criminal liability for omissions is that it opens up possibilities for too wide a class of offenders. After all, as Glanville Williams argues, it is conceivable that everything that is not done is an omission.17 As a result of these concerns within the context of theories of criminal law and justice, criminal liability for omission only exist in circumstances where there is a special relationship or some measure of control which gives rise to a duty of care or a duty to prevent harm. Moreover, as Glanville Williams argues it is quite difficult for members of the public to learn and remember what amounts to harmful omissions.18 By contrast, it is relatively easy for members of the public to learn and remember what amounts to positive harmful acts. Theories of criminal law however, support the law of complicity in that a secondary offender is accountable for the conduct of the principle offender. One of the essential elements of accountability arises where the secondary offender facilitates the crime of the principle offender by failing to take steps to avert the crime once he takes a decision to distance himself from it.19 Similarly, it is not inconsistent with the tenets of criminal responsibility to impose liability for omissions in all cases where omission is not normal and it is certainly not unreasonable to assume that intervention would have most assuredly prevented the harm incurred. As Wilson argues: “...we are allowed to assume, in the case of omissions to act, that the omission to act, if abnormal, is causally effective as long as it probably made the difference between the harmful event occurring and it not occurring. It if makes sense to convict an omitter of a result crime, it must also make sense to devise a workable scheme of attribution.”20 Present day attitudes toward social obligations however, remain antiquated and represents a social norm that persists in the belief that criminal liability for omissions unfairly infringes upon individual liberties. This is particularly so in the case of those persons who only want to go about their own business and let others go about minding their own business.21 It is also argued that while it is relatively easy for individuals to refrain from engaging in conduct that prevents harm, it is far more demanding of an individual to require that he or she prevent harm. Williams makes this point as follows: “You can refrain from doing something simply by refraining; but you cannot perform a duty to act without, often, going to considerable trouble, inconvenience, expense and perhaps even danger.”22 Another argument supportive of the archaic laissez faire attitude to social obligations as encapsulated in criminal liability for omission is founded on the theory that failure to prevent harm does not cause the evil results. At least not on the level attributed to positive acts that cause harm. The general presumption is that the evil results would have occurred whether or not the defendant happened by when he did. 23 This attitude toward causation in the context of omission is reflected in an example found in Stephen’s Digest of the Criminal Law. The example cites the scenario where a child is drowning and a passer-by sees the child in jeopardy. Although the passer-by could easily save the child without placing himself in harm’s way, but refuses to do so. But at common law there is no offence because the passer-by did not cause the drowning and if he had not come by at all the child would have drowned anyway.24 This reason is fundamentally flawed since it can be argued that the child would not have drowned had the adult saved the child. This argument is no less speculative than the argument that the child would have drowned with or without the omission. Nevertheless, the omission to save the child is not a crime solely because the law does not confer a duty of care on the passer-by with respect to the child. Ironically, if omission to save a child in circumstances where the rescue would not put the passer-by at risk of harm was a crime, a legal duty of care would automatically arise. With today’s growing emphasis on the welfare of children, a duty of care already exists in society. After all, the courts have imposed a special duty of care in tort when a child wanders on to private property.25 The same duty of care should exist in criminal law. Be that as it may, criminal omissions rely on a pre-existing duty of care in law and will not impose criminal liability for a lapse of moral duties. For example, in R v Chattaway 17 Crim. App [1922] 7. parents were convicted of manslaughter for the death of a 26 year old daughter when she died as result of their having withheld nourishment.26 In another case a duty of care based on the creation of peril arose when a niece who moved in with her infirm aunt on the condition that she would render aid but the aunt’s condition worsened as a result of her niece’s neglect.27 The law of omissions takes the position that the obligation to take steps to prevent harm is only criminal where there is a pre-existing duty of care. While this position is justified on the grounds that intervention should otherwise be a matter of personal choice, it is not justified in circumstances where a life could be saved at little or no harm to the person who can, but refuses to intervene. There is no justifiable reason for declining to make such a person accountable in criminal law. The proper approach to criminal omission should be one based on justification. If a person of physical and mental capacity could prevent harm to another without incurring serious harm to himself, omission to prevent harm ought to be criminalized in such circumstances. In seeking to regulate and manage social order, criminal law necessarily prescribes what acts are criminal. These acts are expanded to correspond with social changes. The same approach should be taken with respect to omission. As Ashworth correctly proposes, the law of criminal omissions should expand its reach to create collective responsibilities on “each citizen” toward others and “towards the community as a whole.”28 While Ashworth’s proposal appears to be contrary to liberal views toward social responsibilities, it is not entirely unreasonable given that the law itself is based on moral conscience. It is certainly not unreasonable for the law to reflect moral consciousness toward positive acts. It therefore follows that there is nothing offensive about the law reflecting moral consciousness toward a failure to act for the common good of the community. Bibliography Ashworth, Andrew. "The Scope of Criminal Liability for Omissions". [1989] 105 Law Quarterly Review, 424-459. Baker, Brenda. “Theorizing About Responsibility and Criminal Liability.” (1992) 11(4) Law and Philosophy, 403-430. British Railways Board v Herrington [1972] AC 877. Children and Young Persons Act 1933. Education Act 1944. Norrie, Alan. Crime, Reason and History: A Critical Introduction to Criminal Law. Cambridge University Press, 2001. Road Traffic Act 1988. R v Chattaway [1922] 17 Crim. App 7. R v Instan, [1893] 17 Cox Cr. Cas. 602. R v Stone and Dobinson (1977) QB 354. Sistarce, C.T. Responsibility and Criminal Liability. Dordrechr Kluwer, 1989. Smith, J.C. “Liability for Omission in the Criminal Law.” [1984] 4 Legal Studies, 88. Stephen, James, Fitzjames. Digest of the Criminal Law. London: MacMillan and Co. 1883. Terrorism Act 2006. Williams, Glanville. Textbook of Criminal Law. London: Sweet and Maxwell, 1983. Williams, Glanville. "Criminal Omissions - the conventional view". [1991] 107 Law Quarterly Review, 86-98. Williams, G. “What Should the Code do About Omissions?” [1987] 7 Legal Studies, 92. Wilson, William. Central Issues in Criminal Theory. Hart Publishing, 2002. Read More