Treatment of Omission in Criminal Law

 ‘The criminal law is right to treat acts differently to omissions.’ Discuss.

Introduction

The author in this essay will critically discuss whether it is the correct approach for acts to have a distinct treatment than omissions. Would treating omissions in the same manner as acts be inconsistent with other interests which criminal law should protect, such as principle of authority, legality, as well as the harm principle? It is noted that in exceptional situations, which will be discuss’ed in this essay, an omission is treated as an act where a duty of care is owed.

Omissions in the UK

As indicated by the author above an omission will only lead to a person being found guilty of a crime where he had a duty to act, as highlighted by Jonathan Herring.[1] There are a number of ways by which a duty to act is being imposed. For example, a number of statutes impose a duty to act, a duty can also be assumed contractually or through the creation of the danger which leads to the end result. The author will now delve in a discussion of some of the ways by which such duty is being imposed.

Imposing a Duty to Act

Failing to provide a police officer with a specimen of breath when required to do so is an offence under section 6 of the Road Traffic Act (RTA) 1988. In this manner, the statute imposes criminal liability in the event a person omits providing such specimen.  Further to this, there is a duty imposed to police officers to protect and assist members of the public, regardless of whether they are on duty at the time of the incident or not, as demonstrated by the decision in the case of R v Dytham[2].

A duty to act is possible to arise through a contract, employees are in many cases contractually bound to act in certain situations. In R v Pittwood (1902)[3], the defendant had a contractual duty to ensure that the railway line gate was shut. By failing to shut the gate, he breached his contractual duty which led to an accident, resulting to the employee being found guilty for manslaughter due to his omission.

As held in R v Dobinson[4] where there is a voluntary undertaking of responsibility for the welfare of another then the person undertaking the responsibility is under a duty of care for that person. Such undertaking of responsibility can be made expressly or impliedly, and in some cases, such as in a parent-child relationship, such duty arises automatically. As per Lane LJ: ‘Whether Fanny was a lodger or not she was a blood relation of the appellant Stone; she was occupying a room in his house; Mrs Dobinson had undertaken the duty of trying to wash her, of taking such food to her as she required. There was ample evidence that each appellant was aware of the poor condition she was in by mid-July.’ S was partially deaf, nearly blind and of low intelligence. D was described as ‘ineffectual’ and ‘somewhat inadequate’. . In Gibbons & Proctor (1918), Gibbons owed a duty by virtue of his relationship, and consequently breached the duty owed by parents to their children. Herring argues it is not clear what gave rise to the duty, ‘we are still unsure as to whether it was the biological relationship or the voluntary assumption of responsibility or both’^[5].The courts have recognized relationships between spouses Smith (1979)[6], here it should be noted that this case collapsed as the jury was discharged due to their failure to decide. In Hood (2004)[7], a husband was deemed to owe a duty to his wife. If the defendant has acted positively although innocently to create a state of affairs which might cause damage or injury, and subsequently becomes aware of the danger he has created, a duty arises to act reasonably to avert that danger. In Miller (1983)[8], this duty applies where D accidentally does an act which creates a dangerous situation but then deliberately or knowingly fails to counteract that danger so that harm is caused. The most recent example of the Miller principle is the case of Evans[9], in which the principle was applied to gross negligence manslaughter. The Court of Appeal held that the defendant who had supplied his half-sister with heroin owed a duty to take reasonable steps by, for example, getting medical help, when he became aware that his sister was exhibiting signs of a heroin overdose.

Doctors owe patients a duty to preserve their lives by the provision of reasonable medical treatment. The question of whether the doctors can be relieved of this duty where it is no longer in the best interests of the patient to be treated was put to the test in Airedale NHS Trust v Bland (1993)[10]. The House of Lords held that an omission by doctors to provide life support in the best interests of a patient is not a breach of their duty. Lord Goff, giving the leading judgment, stated that there was no absolute rule that a patient’s life had to be prolonged regardless. The fundamental principle was the sanctity of life, but respect for human dignity demanded that the quality of life was also considered.

Advocates of reform of this area suggest that where rescue of the victim would not pose a danger to D, then liability should be imposed for failing to act, even where there was no pre-existing legal duty on D[11]. There are, however, serious objections to a ‘general’ duty to act.

In a number of jurisdictions, including France courts have taken a more broad view by imputing a duty to help someone who is in peril even if there the person made no causal contribution to the danger nor has for any other reason a duty of care towards the victim^[12].  Baker states a ‘supplier should only be held criminally liable for gross negligence manslaughter if he directly creates the dangerous situation’^[13].  Elliot seems to share a similar view, as she criticizes the current law for being ‘restrictive and complicated’^[14].  This critique is very accurate, as the necessity of finding a duty of care before being able to consider whether the omission should constitute the actus reus overcomplicates the law and creates an unnecessary level of uncertainty.  It is essential for this matter to consider the implications of the European Convention of Human Rights 1950 (ECHR), as since the passing of the Human Rights Act 1998 the courts need to take this into consideration.  Article 2 of the ECHR guarantees the Right to Life; imposing a positive obligation to Member States to preserve this right, as Elliot argues^[15], Article 2 may be breached if the criminal law does not adequately protect this right.  By requiring a person to act positively towards helping a person in danger only if there is a duty of care it is arguable that it clashes with the provisions of the ECHR.   If a person was required to act regardless of the relationship with the other person then essentially the legislature is going against the principle of autonomy, preventing an individual from making his own decisions, in some cases it would be reasonable for a person not to act as if he did he would be endangering himself.

Dressler argues that ‘to be guilty of this crime the bystander must ‘know’ that another is at risk of ‘grave physical harm,’ and must give ‘reasonable assistance’ if he can do so ‘without danger or peril to himself.’ If any one of these elements is lacking, the bystander is innocent and, therefore, in a society committed to the principle of legality, does not deserve punishment’ [16].

Dressler carries on by contending that ‘In the real world, however, it would be exceedingly difficult to reliably determine Bystander’s potential guilt. How do we know Bystander realized what was about to happen? Did he see BP? Did he realise BP was about to walk into the street? Did Bystander see the truck? Did he realise the truck driver was not paying attention? Beyond that, why did Bystander not act? Maybe he froze up, maybe he didn’t think fast enough, or maybe (reasonably or unreasonably) he believed that helping BP would jeopardise his own safety’ [17]. Dressler strengthens his argument by resolving in a cost-benefit analysis asserting that ‘the costs of investigating and potentially prosecuting bystanders might be prohibitive’.[18]

There are essentially two academic arguments relating to whether or not criminal liability should be imposed for an omission to act. Professor Williams advocates for the conventional view, while Professor Ashworth prefers the social responsibility approach.

The conventional view argues that there is a moral distinction between acts and omissions and liability should only be imposed in clear and serious cases, principally where a duty has been voluntarily assumed. A restricted basis of liability respects individual liberty, each person being responsible for his own conduct. Williams said ‘there is [a] fundamental moral distinction between killing and letting die [in breach of duty]’ [19] because ‘Whereas killing your patient is absolutely taboo, according to the present law and official medical ethics, letting your patient die is qualifiedly permissible, namely when the patient is dying and there is no point in continuing his agony….’ [20] He said ‘our attitudes to wrongful action and wrongful inaction differ. We almost always perceive a moral distinction between [for example] killing a person and failing to save his life [the former being the worse]; and similarly between other acts and corresponding omissions’ [21]. Williams opines that ‘We have much stronger inhibitions against active wrongdoing than against wrongfully omitting….’[22]

The social responsibility approaches the matter with the view that there is no moral distinction between an act and an omission. The social responsibility view argues that it adopts the welfare-based proposition that society requires a certain level of co-operation and mutual assistance between citizens’ [23]. Ashworth asserts that ‘whether we term certain events “acts” or “omissions” may be both flexible in practice and virtually insoluble in theory: for example, does a hospital nurse who decides not to replace an empty bag for a drip feed make an omission, whilst a nurse who switches off a ventilator commits an act? It would seem wrong that criminal liability or non-liability should turn on such fine points, which seem incapable of reflecting any substantial moral distinctions in a context where the preservation of life is generally paramount….’ [24].

Concluding Remarks

When discussing the law on omissions we must always refer to possible implications with the ECHR, and more specifically the Right to Life afforded by Article 2, it is curious why the matter has not been taken under consideration already.  By following the example of other countries and therefore making everyone bear a positive obligation to protect the right to life of every individual and therefore hold accountable anyone who does not assist a person in peril, would be a step towards greater compliance with the ECHR and also towards greater certainty in the area of omissions in criminal law.  However, as Williams argues ‘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 omits.  We omit to do everything in the world that is not done’.^[25]  In essence by punishing an omission is to punish the differing moral codes of people, moral duties are conceived differently by each person and everyone should have the freedom to act in his own will without being limited by the fear of liability.  It is therefore the contention of the author that the law on omissions should protect other important principles and the autonomy of each person, however, we should always aim compatibility with the ECHR, in the opinion of the author the law on omissions should be expanded to cover omissions even when there is no duty of care, however liability should only be incurred after careful consideration of the circumstances.

Bibliography

Books

Andrew Ashworth and J. Horder, Principles of Criminal Law (7th edn, Oxford: OUP, 2013)

Dennis J Baker, ‘Glanvyle Williams Textbook of Criminal Law’ (3^rd edn, Sweet and Maxwell 2012)

Jonathan Herring, Criminal Law: Text, Cases and Materials (6^th edn, OUP 2014)

Journals

Andrew Ashworth ‘The Scope of Criminal Liability for Omissions’ (1989) 105 LQR 424

Catherine Elliot, ‘Liability for manslaughter by omissions: don’t let the baby drown!’ (2010) 74(2) Journal of Criminal Law 163

Dennis J Baker, ‘Omissions liability for homicide offences: Reconciling R v Kennedy with R v Evans’ (2010) 74(4) Journal of Criminal Law 310

Glanvile Williams: ‘Criminal Omissions-The Conventional View’ (1991) 107 LQR 88

Joshua Dressler, ‘Some Brief Thoughts (Mostly Negative) about “Bad Samaritan” Laws’ [2000] Santa Clara Law Review 971

Table of Cases

Baker and Wilkins [1997] Crim LR 497

Dudley [1989] Crim LR 57.

Merrick [1995] Crim LR 802

R v Dobinson [1977] QB 354.

R v Dytham [1979] QB 722

R v Evans [2009] EWCA Crim 50

R v Gibbins and Proctor (1918) 13 Cr App R 134

R v Miller [1983] 2 AC 161

R v Pittwood (1902) 19 TLR 37

Shangha [1988] 2 ALL ER 385

Hood (2004) 1 Cr App R (S) 431

Airedale NHS Trust v Bland (1993) AC 789

Table of UK and EU legislation

Criminal Damage Act 1971

European Convention on Human Rights 1950

French Penal Code Art 63

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[1] Jonathan Herring, Criminal Law: Text, Cases and Materials (6^th edn, OUP 2014).

[2] R v Dytham, [1979] QB 722.

[3] R v Pittwood (1902) 19 TLR 37.

[4] R v Dobinson [1977] QB 354.

[5] Herring (n 1).

[6] R v Smith [1979] Crim. LR. 251.

[7] Hood (2004) 1 Cr App R (S) 431.

[8] R v Miller [1983] 2 AC 161.

[9] Evans [2009] EWCA Crim 50.

[10] Airedale NHS Trust v Bland (1993) AC 789.

[11] A Ashworth, ‘The scope of criminal liability for omissions’ (1989) 105 LQR 424.

[12] French Penal Code Art 63(2).

[13] Dennis J Baker, ‘Omissions liability for homicide offences: Reconciling R v Kennedy with R v Evans’ (2010) 74(4) Journal of Criminal Law 310, 317.

[14] Catherine Elliot, ‘Liability for manslaughter by omissions: don’t let the baby drown!’ (2010) 74(2) Journal of Criminal Law 163, 164.

[15] Ibid.

[16] J. Dressler, ‘Some Brief Thoughts (Mostly Negative) about “Bad Samaritan” Laws’ [2000] Santa Clara Law Review 971 at 981-9.  

[17] Ibid.

[18] Ibid.

[19] G. Williams: ‘Criminal Omissions-The Conventional View’ (1991) 107 LQR 88.

[20] Ibid.

[21] Ibid.

[22] Ibid.

[23] A. Ashworth and J. Horder, Principles of Criminal Law (7th edn, Oxford: OUP, 2013) 54-5.

[24] A. Ashworth ‘The Scope of Criminal Liability for Omissions’ (1989) 105 LQR 424.

[25] Dennis J Baker, ‘Glanvyle Williams Textbook of Criminal Law’ (3^rd edn, Sweet and Maxwell 2012).