Criminal Law

The issue of omission constituting to criminal liability, the laws, statues and precedents that go alongside it are extremely serious and widespread with implications in the English legal system.

English law on criminal liability does not occur as a result of failing to act except if you have a duty to act as created by statues. Some statues law obliged people to act and failure would constitute to a criminal offence. Such as the Road Traffic Act 1988, that require a driver to provide a sample of breath when required and failure to do so is a criminal offence. A duty to act in such circumstances is called omissions {Failure to act}. [1]

The general rule in criminal law requires the prosecution to prove both the actus reus {guilty act} and mens rea {guilty mind} of an offence, without the presence of this two elements; a person can not usually be found guilty. There are crimes that do not require mens rea, and most of them are created by statues such offence are called strict liability. [2]

Omissions, as defined above; means failing to act- should a person be held responsible for failing to act? Liability for failing to prevent harm, by contrast, is liable to subject people to possibly onerous and unpredictable calls upon their time and life choices thus compromising individual autonomy and freedom. [3]

“Everything is excluded except the thing they must do and do now or face the penal consequences”. [4] “A related concern is that liability for omissions may run counter to the legality principle. Specifically, people should be punished for offending a legal rule, not simply because their conduct is immoral, injurious or offensive”. [5] Such was the case of Fagan v Metropolitan Police Commissioner [6] ; a police constable wishing to question the defendant driver directed him to park his vehicle at a precise space against the kerb, whereupon the defendant drove his car on to the police. “Held, (Bridge J dissenting): on the facts found, the appellant had been rightly convicted, because his conduct could not be regarded as mere omission or inactivity and there was an act constituting a battery which at its inception was not criminal because there was no element of intention, but which became criminal from the moment the intention was formed to produce the apprehension which was flowing from the continuing act”. [7] What seemed to be an omission was treated as an act with the use of the concept of a continuing act. [8]

Where, as in the case cited above, the offences are an omission but the legality of criminalizing offence of omission sometimes should be something done with intent and not unintentional. Fagan action was not premeditated; it was not a voluntary action and morally could be argued in layman term not to be an omission but in English law as per Bridge J, it was held that the mens rea was present during the continuing act, and he was liable for a criminal offence. Glanville Williams [9] commented on the decision in Fagan’s case [10] , as sensible on its facts but opposed the concurrence of act and intent on which the decision was founded.

“Problem arise when the offences requires proof of a result as for example, in homicide and other offences against the person. J.F Stephen stated the rule for these offences as follows: “It is not a crime to cause death or bodily injury, even intentionally, by any omission”…. [11]

He gave the following famous illustration:

“A see B drowning and is able to save him by holding out his hand. A abstains from doing so in order that B may be drowned, and B is drowned. A has committed no offence. Stephen when on to state exceptional cases where the law imposes a duty to act; if A in the example were B’s parent, A would have a duty to act and would be guilty of murder if he did not act and the child drowned”. However, if the child were drowning in a violent sea, it would be dangerous to act in such circumstances. The reasonable option is to look for help and when A refuses to look for help intentionally, he would be held liable for a criminal offence.

Liability for omissions could sometimes affect a duty to act and interferes with individual autonomy. Such was the House of Lords decision in Airedale NHS Trust v Bland. [12] The patient was suffering from brain damage and need to be kept alive by means of a naso- gastric feeding tube.

The House of Lord concluded that it was an omission. “It was held that removal of the feeding tube to provide artificial feeding and the ceasing of the existing routine of artificial feeding constituted positive acts of commission: on the contrary it is by definition an omission to do what had previously been done”. [13] The major analytical headache is that the same course of conduct would be a positive act if undertaking by a stranger, but an omission if perpetrated by an appropriate medical officer. [14]

A crime can be committed by omission, but there can be no omission in law in the absence of a duty to act, if there is an act, someone acts; but if there is an omission, everyone [in a sense] omits. [15] For the purpose of justification, it could be argued that a duty to omit would be needed to establish an omission. Court approach to criminal liability needs to be viable, comparing the approach to the decision of the court in the case of R v Prince. [16] In this case the prisoner was indicted under 24 & 25 Vict. c. 100, s. 55, now s. 20 of the sexual offence Act {1956} unlawfully taking an unmarried girl, being under the age of sixteen years, out of the possession and against the will of her father. And, according to the statement of the case, she told the prisoner she was eighteen.

In the case of Prince, he possessed the mens rea in relation to every element of the offence save that she was under 16 years. The House of Lords in B {A Minor} v DPP [17] overturned the decision in Prince. In this case, a girl aged 13 was a passenger on a bus and the defendant, who was aged 15 years, sat next to her. The defendant asked the girl to perform oral sex with him. She refused. He repeated his request several times and she repeatedly refused. The defendant honestly believed that she was over the age of 14. The justices ruled that the terms of section 1(1) imposed strict liability and a mistaken belief as to the age of the victim could not amount to a defense. This shows that the law is not constant and questionable in comparisons to Prince.

The question is when can a person be held liable for conduct of crime? Common sense should prevail sometimes like the case of B {A Minor} v DPP [18] ; his action could establish a criminal sanction due to its positive actions, which result in his desire to satisfy an unwarranted sexual urge unlike the case of Prince who was lied to but still convicted.

The case of R v Miller, [19] Lord Diplock commenting on the case, said that the defendant would not have been liable if his role was at no time more than that of a passive bystander. This is a case where common sense should prevail, we were made to understand that failure to act could result to criminal liability.“The principle is that where a person accidentally creates a danger he or she can be liable for letting the danger eventuate. More technically, the rule is that where the law forbids a particular result (whether we call the crime a result-crime or not), then mens rea conceived after the act and before the result occurs (but at the time when the defendant could still have prevented the result) can (as the law is now established by Miller) lead to liability, provided that the defendant’s conduct falls within the terms of the offence”. [20] It was obvious that Miller consciously created danger and is liable to a criminal sanction.