Commission v Omission

Question 1

What is the causal theory of conduct?

Answer 1

1. The human will was seen as the cause of physical action as willed bodily movements
2. It fails to account for modern human conduct which can no longer be described in terms of bodily movements (think corporate wrongdoing)
3. Used a lot in EN

Question 2

What is the teleological theory of conduct?

Answer 2

1. Human action is intrinsically purposive - One cannot understand the nature and meaning of an action unless one knows its purpose
2. It fails to account for crimes by omission or crimes of negligence as one cannot see the goal of the action

Question 3

What is the social theory of conduct?

Answer 3

1. Human action must be interpreted in the social context in which it occurred - Conduct is a social phenomena, not a natural one
2. Allows prosecution for omissions
3. Used in NL and GR

Question 4

What are the requirement for the Actus Reus?

Answer 4

1. Ability to be aware of oneself as agent
2. Rationality
3. Capacity for self-reflection and evaluation
4. Physical control - Without voluntary control, conduct cannot be criminally liable
5. Consciousness - There is no liability if the conduct is committed in a totally unconscious state

Question 5

Why can criminal liability be imposed for omissions?

Answer 5

1. Liability is imposed for omitting to do something - Because of a failure to act where there was a duty of care = Improper crimes of omission
2. Liability is imposed for not reacting to certain events (like killing, burning, assaulting…) = Proper crimes of omission:
3. Good Samaritan Law - Exists in NL and GR but not in EN

Question 6

How are commissions by omissions dealt with in EN?

Answer 6

1. Generally speaking individuals can only be criminally liable for their actions unless a general duty of care outweighs the interests of individual autonomy
2. It requires a special legal duty and the capacity to act
3. Murder and manslaughter can be committed by omission, but not assault or battery

Question 7

How are commissions by omissions dealt with in GR?

Answer 7

1. Improper crimes of omission are criminalised in §13GCC
2. Supervisor - Duty to safeguard and protect interests against dangers which are under his control
3. Protector - Duty of care where one is obliged to protect an interest against harm

Question 8

How are commissions by omissions dealt with in NL?

Answer 8

1. The offender must have had a general duty of care and the capacity to do so
2. The scope of duties of care is diverse and broad

Question 9

What are the different duties of care?

Answer 9

1. Duties based on a special relationship- Parents, spouses, two persons together in a dangerous situation
2. Undertaken duties - Where a person has voluntarily assumed a responsibility factually or by contract
3. Duties based on specific qualities of the offender because of his social role/position
4. Duties based on ownership of or responsibility for a source of danger
5. Duties based on the creation of a dangerous situation