Omissions in Criminal Law
In English law there is no liability for failing to act. A person is under no obligation to assist another in peril unless they belong to a specific category which creates a duty to act. For example a passer-by has no legal duty to aid a drowning person, whereas a parent has a legal duty to assist their child. The reason for not criminalising omissions is because it is telling someone to do a good thing, which removes their ability to make their own positive moral choices and therefore reduces the ability to have a fulfilling life. First, this paper will consider the actus reus element of a crime. Second, it will discuss decisions of past cases which establish liability for omissions. Third, it will discuss opposing views of social responsibility. Fourth, it will support the current conventional approach. Last this paper will suggest with some reforms the current system is sufficient.
A criminal offence must consist of two elements, actus reus and mens rea. Actus reus is a conduct element, where the necessary proof lies that a defendant ‘did’ a voluntary act causing a particular result.[1] A conduct crime is one in which a forbidden action is taken and a result crime is where a forbidden act causes a particular result. Omissions do not correspond easily with these rules, sitting uncomfortably within our understanding of criminal acts. This is demonstrated in R v Speck[2], where a child sitting on a man’s lap innocently places her hands on his genitals, causing arousal. He omitted to remove her hand but was found guilty of battery. The judgement did not make clear if liability was established on an act or omission. Ashworth writes: “there are many ambiguous cases in which the act-omission distinction should not be used as a cloak for avoiding the moral issues”[3].
Extending the range of punishable omissions further would better protect public interest in society, for example such as human life and physical integrity. The French system facilitates this view and Article 63 of the French Penal Code criminalises a person to voluntarily neglect to prevent a serious crime or other offence against a person or neglecting to assist a person in peril[4]. The use of Article 63 (2) was distinguished in the arrest of the ‘paparazzi’ at the scene of the notable accident of Dodi Al Fayed and Diana Princess of Wales in Paris 1997, where they were charged with ‘failing to assist a person in danger.
A duty to act is imposed automatically in English law under eight circumstances: First, Statutory omissions s.6 Road Traffic Act 1988 imposes liability for failing to provide breath sample.[5] Second, police officers are duty bound to assist the public in danger R v Dytham[6]. Third where there is a contractual duty to act; R v Pittwood[7]. Fourth, voluntarily assuming responsibility in caring for another, this can be explicit or implied. Fifth, a duty arises automatically between a parent and child[8]. In Gibbons and Proctor[9] failing to feed the child amounted to an omission. In Stone; R v Dobinson[10] a controversial decision found two adults of lower intelligence and abilities assumed duty of care to a vulnerable adult and were found guilty of neglect. Sixth, the owner of property is to prevent in so far as is possible a crime occurring on their property Tuck v Robson[11]: an extension of this liability is suggested in rape cases at house parties. Seventh, a continuing act, in Fagan v Metropolitan Police Commissioner[12] not removing the car wheel from the officer foot was a failure to act which led to liability Eighth, the creation of danger in R v Miller[13] it was decided that once he realised there was a danger he was under a duty to act.
The courts have attempted to extend the liability of omissions towards a more socially responsible view. In R v Evans[14] a duty of care was assumed in creating a danger in the supply of drugs to a minor. The defendants conduct in Evans[15] was morally reprehensible but caused much debate as in previous drugs cases the ‘voluntary act’ of ingesting a drug by an adult had been found to break the chain of causation between supplier and the deceased. Presumably it was the age of the deceased in Evans[16] that has given rise to the change in decision on causation. Decisions in drugs cases have been ambiguous in deciding a duty of care and Evans[17] may signal a shift in attitude occurring where the courts are more willing to find a duty of care.
A socially responsible view favours a general Good Samaritan law. It is one of a collective responsibility for one another. It creates a duty to assist a citizen whose life is in peril. Conceding that, whilst it may not maximise the quantity of liberty of an individual this is outweighed by the benefits to collective social responsibility. This view supports the 'harm principle', where preventing harm to persons other than the perpetrator is the lawful function of criminalisation[18]. It does not entirely dismiss the conventional view and values each individual life and their fundamental rights. Contrary to conventionalism this view argues this co-operation is necessary for the realisation of individual autonomy[19].
However a general duty raises issues as Feinberg discusses the legal paternalism and self-sovereignty encountered if a rescuer comes upon a suicidal person.[20] Should a person wishing to end their life if they feel it is insufferable have the right to do so without interference? Aiding another may cause detriment; namely rescuers suffering PTSD which creates the risks of performing rescues.[21] To impose this on all citizens is onerous. A bystander frozen with fear or a weak swimmer could be criminally liable in causing a drowning if a general law was imposed. Presenting such a causative link may undermine the integrity of the standards of law by creating a dangerous status quo and destroys the concept of autonomy. Furthermore, one of the main concerns preventing bystanders administering CPR was fear of causing injury to patient[22], could it be fair and reasonable to criminalise fear? Dingwall and Gillespie[23] suggest criminalisation should be subject to a test taking into account of the state of mind of for failing to aid a person at serious risk if there was no risk to the bystander. Even so this would result in every defendant raising this argument as a defence to a claim in which they failed to act.
A conventional view relies on defining a legal duty with a minimalist approach for liability which should only arise in certain cases. The overarching reason is to protect individual autonomy and liberty. It does not oppose criminalising conduct to prevent inflicting harm on others. However there should be freedom to decide when to have a duty act imposed on them and for recognition of an individual's choices instead of liability being governed unwittingly. Glanville Williams supports that non feasance should not amount to a crime even if the outcome is serious.[24] Apply this to a female who feels vulnerable. She may be said to have their autonomy and moral independence removed if duty bound to assist a male on the roadside. Should a distinction be made in relation to omissions for men and women, or does this promote inequality? Further problems of inequality, it is more likely that a drunken man at risk of being raped by a sober male in danger will be less likely to receive help.[25] Can the report theory discussed below, provide a solution?
What is peril and is there a unified perception of it?[26] Could it be defined clearly to avoid misperception of a citizen’s duty? The social effect in requiring each citizen to assist another in peril might reduce the autonomy and privacy of others in pursuing their own objectives and cause a rise in policing by citizens. A case of mistake and policing by a citizen in R v Gladstone Williams[27], the appellant witnessed a man attacking a youth and intervened to aid the youth, however the youth had just committed a mugging and the attacker was trying to stop him from escaping.
Lacey encompasses the views expressed in this paper[28] and suggests creating a greater category of responsibilities two of which are failure to ‘report’ and ‘protect’. Reciprocity from the state in guaranteeing protection to those who report, to reduce the coercive power exercised by abusers to those around them would further encourage reporting. Public Health England’s guidance on sexual and intimate violence depicts the reluctance for governmental legislative support as it suggests encouraging a shift in the social norms to challenge the behaviour [29]rather that legislative solutions. The duty to report theory could effectively keep the reporter safe affecting autonomy very little. Finally, it is particularly suited to livestreaming online of abuse or danger[30]. This theory and preventative approach are likely to satisfy both views discussed here.
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Bibliography
Table of Cases
R v Dytham (1979) Cr App R 387 (CA).
R v Evans [2009] EWCA Crim 650
Fagan v Metropolitan Police Commissioner [1969] 1 QB 439
R v Gibbons and Proctor (1919) 13 Cr App R 134 (CA)
R v Gladstone Williams (1984) 78 Cr. App. R. 276
R v Miller [1983] 2 AC 161 (HL)
R v Pittwood (1902) 19 TLR 37
R v Speck [1977] 2 All ER 859
Stone; R v Dobinson [1977] QB 354 (CA)
Tuck v Robinson [1970] 1 WLR 741
Table of Statutes
The Domestic Violence Crime and Victims Act 2004
Serious Crime Act 2015
French Penal Code
Article 63 of the French Penal Code
Books
Ashworth A, “Principles of Criminal Law” (Oxford University Press 2006)
Herring, Jonathan, Criminal law: text, cases, and materials. (Oxford UP, Oxford, 2014)
Journals
Ashworth A, The Scope of Criminal Liability for Omissions, (1989) 105 LQR, 424
Ashworth A, & Steiner E, “Criminal Omissions and Public Duties: The French Experience”, (1990) 10 Legal Stud 153
Ashworth A, “The Scope of Criminal Liability for Omissions” (1989) 105 LQR 424
Ashworth A, “A new generation of omissions offences?” (2018) 5 Criminal Law Review 354–364
Becker TK, Gul SS, Cohen SA, “Public perception towards bystander cardiopulmonary resuscitation”, (2019) 36 Emergency Medicine Journal 660-665
Berger W, Coutinho E.S.F., I. Figueira I, et al. “Rescuers at risk: a systematic review and meta-regression analysis of the worldwide current prevalence and correlates of PTSD in rescue workers” (2012) 47 Soc Psychiatry Epidemioly, 1001–1011
Dingwall G & Gillespie A, “Reconsidering the Good Samaritan: A Duty to Rescue” (2008) 39 Cambrian Law Review 26
Feinberg J, “The Moral Limits of the Criminal Law / Vol.1, Harm to Others” (Oxford UP, 1987)
Feinberg J, “The Moral Limits of the Criminal Law / Vol.3, Harm to Self” (Oxford UP, 1986)
Grande Montana P, “Watch or Report - Livestream or Help - Good Samaritan Laws Revisited: The Need to Create a Duty to Report” (2018) 66 CLEV. St. L. REV 533
Katz J, and Johnson Nguyen L, “Bystander responses to risk for rape perpetrated by a friend, acquaintance, or stranger” (2016) 25(6) Journal of Aggression, Maltreatment & Trauma 652-667
Larguier J, "French penal law and the duty to aid persons in danger" (1963) 38 Tul. L. Rev 81
Williams G, “What Should the Code Do about Omissions?” (1987) 7 Legal Studies no. 1 92-118
Reports
Public Health England, “Bystander interventions to prevent intimate or partner and sexual violence” (Published 10 December 2020)
The Law Commission (Law Com No 305, 2007) Participating in Crime
The Law Commission, Criminal law a Criminal Code for England and Wales (Law Com No 177, 1989)
Footnotes
[1] Herring, Jonathan, Criminal law: text, cases, and materials. (Oxford UP, Oxford, 2014), 85
[2] [1977] 2 All ER 859
[3] Andrew Ashworth, “Principles of Criminal Law” (Oxford University Press 2006) 112
[4]Jean Larguier, "French penal law and the duty to aid persons in danger" (1963) 38 Tul. L. Rev 81
[5] Herring, Jonathan, Criminal law: text, cases, and materials. (Oxford UP, Oxford, 2014), 88-89
[6] (1979) Cr App R 387 (CA)
[7] (1902) 19 TLR 37
[8] The Domestic Violence Crime and Victims Act 2004 s.5 creates an offence for “Causing or allowing a child or vulnerable adult to die or suffer serious physical harm” and s.6 “act” includes a course of conduct and also includes omission.
[9] (1919) 13 Cr App R 134 (CA)
[10] [1977] QB 354 (CA)
[11] [1970] 1 WLR 741
[12] [1969] 1 QB 439
[13] [1983] 2 AC 161 (HL)
[14] [2009] EWCA Crim 650
[15] ibid
[16][2009] EWCA Crim 650
[17] ibid
[18] Joel Feinberg, “The Moral Limits of the Criminal Law / Vol.1, Harm to Others” (Oxford UP, 1987)
[19] Andrew Ashworth, The Scope of Criminal Liability for Omissions, (1989) 105 LQR, 424
[20] Joel Feinberg, “The Moral Limits of the Criminal Law / Vol.3, Harm to Self” (Oxford UP, 1986)
[21] W. Berger, E.S.F., Coutinho, I. Figueira, I. et al,., “Rescuers at risk: a systematic review and meta-regression analysis of the worldwide current prevalence and correlates of PTSD in rescue workers” (2012) 47 Soc Psychiatry Psychiatry Epidemioly, 1001–1011
[22] TK. Becker, SS Gul, SA Cohen, “Public perception towards bystander cardiopulmonary resuscitation” (2019) 36 Emergency Medicine Journal 660-665
[23] Gavin Dingwall & Alisdair Gillespie, “Reconsidering the Good Samaritan: A Duty to Rescue” (2008) 39 Cambrian Law Review 26
[24] Glanville Williams, “What Should the Code Do about Omissions?” (1987) 7(1) Legal Studies 92-118
[25] Jennifer Katz, and Leyna Johnson Nguyen "Bystander responses to risk for rape perpetrated by a friend, acquaintance, or stranger" (2016) (25) 6 Journal of Aggression, Maltreatment & Trauma 652-667
[26] Andrew Ashworth, “The Scope of Criminal Liability for Omissions” (1989) 105 LQR 424
[27] (1984) 78 Cr. App. R. 276
[28] Andrew Ashworth, “A new generation of omissions offences?” (2018) 5 Criminal Law Review 354–364
[29] Public Health England, “Bystander interventions to prevent intimate or partner and sexual violence” (Published 10 December 2020)
[30] Patricia Grande Montana, “Watch or Report - Livestream or Help - Good Samaritan Laws Revisited: The Need to Create a Duty to Report” (2018) 66 CLEV. St. L. REV 533
