ECRL MOD 1-4

Question 1

Definition of Crime

• A crime is an act (something done) or
  omission (something not done) that is
  against the law and punishable upon
  conviction.
• Something is a crime if declared as such by statute or by common law.
• It is harmful not only to some individual but also to a community, society or the state.

Answer 1

x

Question 2

Objectives of Criminal Law
- Retribution – criminals ought to suffer in
some way.
- Deterrence – individual deterrence is
aimed toward the specific offender.
- Incapacitation – to keep criminals away
from society in order to protect the public.
- Rehabilitation – aims at transforming an
offender into a valuable member of society.
- Restoration – to repair any injury inflicted
upon the victim by the offender.

Answer 2

x

Question 3

American Model Penal Code
- To forbid and prevent conduct that
unjustifiably and inexcusably inflicts or
threatens substantial harm to individual or
public interests.
- To subject to public control persons whose
conduct indicates that they are disposed to
commit crimes.
- To safeguard conduct that is without fault
from condemnation as criminal.
- To give fair warning of the nature of the
conduct declared to be an offence.
- To differentiate on reasonable grounds
between serious and minor offences.

Answer 3

x

Question 4

Elements of Crime
- Actus Reus – guilty act (conduct)
- Mens Rea – guilty mind (intent)
- Concurrence – actus reus and mens rea
MUST occur at the same time
- Causation – the guilty act MUST result in
actual harm

Answer 4

x

Question 5

Types of Offences

Crimes against the person, e.g. assault,
battery, false imprisonment, harassment,
intimidation, manslaughter, murder.

Answer 5

x

Question 6

Types of Offences

Sexual offences, e.g. incest, obscenity,
rape, sexual assault.

Answer 6

x

Question 7

Types of Offences

Crimes against property, e.g. arson,
burglary, criminal damage, fraud, robbery,
theft.

Answer 7

x

Question 8

Types of Offences

Crimes against justice, e.g. perjury,
perverting the course of justice.

Answer 8

x

Question 9

Types of Offences

Crimes against the public, e.g. terrorism,
riot, obstruction of highways.

Answer 9

x

Question 10

Types of Offences

Crimes against animals, e.g. animal fight,
cruelty to animals.

Answer 10

x

Question 11

Types of Offences

Crimes against the state, e.g. treason,
espionage.

Answer 11

x

Question 12

Types of Offences

Participatory offences, e.g. accomplice,
joint enterprise, inchoate offence.

Answer 12

x

Question 13

Summary Trial

• It takes place in a magistrates’ court.
• It is a quicker and less expensive alternative to a full trial.
  It works best when the defendant agrees on
  the facts but disagrees on what the result
  should be based on those facts.
  Evidence is provided to the judge in the
  form of affidavit which is a written
  statement sworn to be true from an
  individual.
  The judge will review the affidavits and
  will make a final order based on the
  information.

Answer 13

x

Question 14

Trial on Indictment
- It takes place in the Crown Court.
- The defendant is tried before a judge and a
jury.
- An indictment is the formal document
outlining a specified indictable offence.
- It is more time-consuming and expensive,
so it is reserved for more serious crimes.

Answer 14

x

Question 15

Triable Either Way
- It is a trial of summary or indictable
offences.
- A criminal offence that can be heard in a
magistrates’ court or the Crown Court.
- If the magistrates decide their sentencing
powers are sufficient to deal with the
offence, the defendant may elect to have it
dealt with summarily in the magistrates’
court or on indictment (trial by jury) in the
Crown Court.

Answer 15

x

Question 16

Charge
- It is a formal allegation made by the
prosecution against a person accused of
having committed a specific criminal
offence.

Answer 16

x

Question 17

Undercharging – it refers to a situation
where the prosecutor charges a suspect with
a criminal offence that is less severe or
carries a lower penalty than the crime he
has allegedly committed. It happens mostly
because the prosecutor does not have
sufficient evidence to support a more serious charge. Undercharge is easier to prove and may encourage a guilty plea. The prosecution of summary trial is less costly and more efficient because it may enable the case to be heard summarily rather than on indictment. However, it may lead to a situation where a suspect faces inadequate legal consequences for his actions, potentially resulting in an unjust outcome and undermining public confidence in the criminal justice system.

Answer 17

x

Question 18

• Overcharging – it refers to a situation
  where the prosecutor charges a suspect with a criminal offence that is more serious or carries a higher penalty than the crime he has allegedly committed. It happens mostly because the prosecutor misinterprets the evidence or wants to exert pressure on the suspect. Facing the prospect of severe charges, the suspect may be more inclined to negotiate a plea bargain for lesser charges, even if he believes he is innocent. Overcharging can be problematic because it can lead to inflated penalties, wrongful convictions, undermining public confidence in the criminal justice system. Defendants may be unfairly punished for crimes they did not commit or for actions that do not merit such severe consequences.

Answer 18

x

Question 19

Roles of Judge
- He is the trier of law, interpreting and
applying the law.
- He preside over the trial and maintains
order in the courtroom.
- He provides instructions to the jury
regarding the applicable law and legal
standards.
- He decides what evidence can be admitted
and presented to the jury.
- If the defendant is found guilty, he is
responsible for imposing a sentence.

Answer 19

x

Question 20

Roles of Jury
- The jury is a group of jurors who take up
the role of fact finders (i.e. triers of fact).
- They listen to the evidence presented in
court by the prosecution and the defence.
- They determine whether the defendant is
guilty or innocent based on the evidence.
- After the trial, they retire to deliberate in
private to reach a verdict.
- Deliberation involves discussions, analysis of the evidence, and consideration of legal instructions provided by the judge.
- They are expected to remain impartial,
unbiased, and free from any preconceived
notions or biases that could affect their
judgment.

Answer 20

x

Question 21

Jury Direction
- The judge will guide the jury on what
evidence is admissible.
- The judge will sum up and review the facts
for the jury.
- The judge will tell the jury that the standard
of proof is beyond reasonable doubt and the
burden of proof is at all times on the
prosecution unless it is reversed.
- The judge will then explain to the jury what
the law is and the facts they have to find to
sustain a conviction.

Answer 21

x

Question 22

Appeal
- If the judge makes a mistake in directing
the jury or applies the wrong law or
principle, this can be appealed on the
ground of misdirection.
- Appeals from the Crown Court are heard
by the Court of Appeal (criminal division).
- Appeals from the Court of Appeal are heard
by the Supreme Court.

Answer 22

x

Question 23

Sources of Criminal Law
- Criminal law derives from traditional
common law of crimes, so it was once
judge-made law, known as common law
offences.
- However, the majority of criminal offences
have now been codified in statute as
statutory offences.
- Those that were not codified in statute have
largely been abolished but some of them
are still effective.

Answer 23

x

Question 24

Codification of Criminal Offences
- Common law offences were seen as
unacceptably vague and open to
development by the courts in ways that
might create certainty.
- The Law Commission is an independent
body set up by Parliament to keep the law
under review and to recommend reforms.
- Its codification of criminal law aims to
abolish all the remaining common law
offences and replacing them with offences precisely defined by statute.
- However, neither the Law Commission nor
the UK Parliament have completed the
necessary revisions of the law, so some
common law offences still exist.
- In England and Wales, unless a specific
maximum sentence has been codified,
common law offences are punishable by
unlimited fines and unlimited
imprisonment

Answer 24

x

Question 25

Principles of Criminal Law

Principle of minimal criminalisation –
Conduct should be criminalised only when
absolutely necessary. Only offences that are
seriously enough should be criminalised,
rather than trivial ones.

Answer 25

x

Question 26

Principles of Criminal Law

Principle of proportionality – punishment
for a given crime should be proportional to
and reflect the seriousness of the crime.

Answer 26

x

Question 27

Principles of Criminal Law

Principle of fair labelling – the description
of the offence should match the wrongdoing and reflect distinctions in the nature and seriousness of the crime.

Answer 27

x

Question 28

Principles of Criminal Law

Principle of certainty – the law must be
clear, precise and unambiguous so that its
legal implications can be foreseeable.

Answer 28

x

Question 29

Principles of Criminal Law

Presumption of innocence – every
defendant is presumed innocent until
proven guilty by the prosecution beyond a
reasonable doubt.

Answer 29

x

Question 30

Principles of Criminal Law

Double jeopardy – a person should not be
tried twice for the same offence after being
acquitted or convicted.

Answer 30

x

Question 31

2. Criminal Liability
   CRIMINAL LIABILITY

Answer 31

x

Question 32

Elements of Crime

Mens Rea – it is the mental element of a
person’s intention to commit a crime (i.e.
guilty mind, criminal intent).

Answer 32

x

Question 33

Elements of Crime

Actus Reus – it is the external element of a
person’s unlawful conduct or omission of
an act (i.e. guilty act, criminal act).

Answer 33

x

Question 34

Elements of Crime

Concurrence – mens rea and actus reus
must occur simultaneously to constitute a
crime, except for crimes of strict liability
where only actus reus is enough to impute
guilt.

Answer 34

x

Question 35

Elements of Crime

Causation – the actus reus must
proximately cause actual harm, except for
inchoate offense where the criminal attempt
is not complete but actual harm would be resulted upon completion.

Answer 35

x

Question 36

Elements of Crime

Criminal Liability
- There must be a criminal act or omission
for the imposition of criminal liability to
the actor.
- If the law imposes a duty to act, a failure to
do so will result in criminal liability (i.e.
criminal omission).
- The most important element for a crime is
actus reus, without which no criminal
liability can be imposed because there will
not be concurrence and causation.
- Only mens rea can never constitute a crime,
as a person cannot be held liable for just
thinking about committing a crime.

Answer 36

x

Question 37

Blameworthy States of Mind

Direct intention – the actor has a clear
foresight of the consequences of his
actions, and desires those consequences to
occur. It is his aim, purpose or intent to
achieve this consequence, e.g. murder.

Answer 37

x

Question 38

Blameworthy States of Mind

Oblique intention – it is the indirect intent
of the virtually certain consequence of the
defendant’s actions, and that the defendant
appreciates that such was the case.

Answer 38

x

Question 39

Blameworthy States of Mind

Knowledge – the actor knows, or should
know, that the results of his conduct are
reasonably certain to occur.

Answer 39

x

Question 40

Blameworthy States of Mind

Recklessness – the actor foresees that
particular consequences may occur and
proceeds with the given conduct, not caring
whether those consequences actually occur
or not.

Answer 40

x

Question 41

Blameworthy States of Mind

Criminal negligence / carelessness – the
actor did not actually foresee that the
particular consequences would flow from
his actions, but a reasonable person, in the
same circumstances, would have foreseen
those consequences.

Answer 41

x

Question 42

Criminal Defences
- Some criminal acts are not wrongful under
special circumstances or are reluctantly
conducted under threats
- Therefore, it would be unfair to punish the
defendant without considering those
circumstances which can mitigate or
eliminate criminal liability.

Answer 42

x

Question 43

Criminal Defences

Diminished responsibility – a partial
defence to a crime committed due to
impairment of mental functions.

Answer 43

x

Question 44

Criminal Defences

Insanity – a deranged state of mind that
makes the defendant unable to understand
what he was doing.

Answer 44

x

Question 45

Criminal Defences

Automatism – a state where the muscles
act without any control by the mind, or
with a lack of consciousness.

Answer 45

x

Question 46

Criminal Defences

Intoxication – substance intoxication
leading to diminished responsibility.

Answer 46

x

Question 47

Criminal Defences

Mistake of fact – a misunderstanding of
some fact that negates the mental element
of the crime.

Answer 47

x

Question 48

Criminal Defences

Duress – involuntary criminal conduct due
to the circumstances or threats of another.

Answer 48

x

Question 49

Criminal Defences

Necessity – necessary conduct to prevent
some greater harm.

Answer 49

x

Question 50

Criminal Defences

Answer 50

x

Question 51

Criminal Defences

Provocation – it is a mitigating factor in
sentencing that the defendant was incited to
act.

Answer 51

x

Question 52

Criminal Defences

Self-defence – use of reasonable force to
defend one’s own life or the lives of others.

Answer 52

x

Question 53

Criminal Defences

Defence of property – use of reasonable
force to protect one’s own property.

Answer 53

x

Question 54

Criminal Defences

Consent – when the victim voluntarily
agrees to the proposal or desires of another.

Answer 54

x

Question 55

Criminal Defences

Entrapment – a law enforcement agent
induces a person to commit a crime that he
would have otherwise been unlikely or
unwilling to commit. It is not a criminal
defence in itself but an abuse of the process
of the court for state agents to lure a person
into committing an illegal act and then seek
to prosecute him for doing so. In this case,
there is good reason to question the
credibility of the evidence and argue that
the case should not be brought at all.

Answer 55

x

Question 56

Burden of Proof
- A person is considered innocent until
proven guilty.
- The burden of proof is generally on the
prosecution.
- The prosecution must prove all the
elements that constitute the crime for which the defendant is prosecuted, as in Woolminton v DPP (1935).

Answer 56

x

Question 57

Criminal Standard of Proof
- The prosecution must prove each element
of the offence beyond reasonable doubt.
- This means that the evidence presented
must be so convincing that no reasonable
person could have any doubts about the
defendant’s guilt.
- The jury or magistrates must not convict
unless the prosecution has made them sure
that all the elements of the offence are
present and proved beyond reasonable
doubt.

Answer 57

x

Question 58

Reversing Burden of Proof

• When there is enough circumstantial
  evidence to prove the guilt of the
  defendant, the burden of proof is reversed
  to the defendant to disprove his guilt.
• For example, the defendant with a weapon
  in hand was seen running away from the
  crime scene, and the weapon was found to
  be tainted with blood of the person who
  was killed in a murder.
• Even if no one witnessed the murder, this
  circumstantial evidence is enough to allow
  the jury to infer that the defendant was the
  murderer.
• In this case, the defendant needs to prove
  that he is not the murderer.
• Once the burden of proof is reversed, the
  standard of proof is a balance of
  probabilities (i.e. it is more likely that the
  defendant did not kill the person), which is
  a standard of proof in civil cases.

Answer 58

x

Question 59

STRICT LIABILITY CRIMES

Answer 59

x

Question 60

Strict Liability Crime
- It does not require the proof of the mental
element of crime, i.e. mens rea.
- The defendant is presumed to have the
mens rea for the offence.
- It only requires voluntary act or omission
of an act to constitute actus reus for
conviction.
- Strict liability crimes are primarily
statutory offences.

Answer 60

x

Question 61

Absolute Liability Crime
- Many so called strict liability crimes in fact
require some form of mens rea.
- The element of mens rea is often specified
in statute, such as ‘willfully’, ‘knowingly’,
‘recklessly’, ‘carelessly’.
- Therefore, this mental state needs to be
proved even though it is a strict liability
offence.
- However, for absolute liability crimes,
proof of mens rea is not required at all.
- The prosecution just needs to prove the actus reus for conviction.
- Absolute liability crimes are primarily
regulatory offences, also known as quasicriminal offence.
- In English criminal law, the distinction
between strict liability and absolute liability
is not always clear, and many absolute
liability crimes are simply referred to as
strict liability crimes.

Answer 61

x

Question 62

Disadvantages of Strict Liability

• Crimes of strict liability may lead to
  controversial convictions as a person may
  be liable even if he is not at fault or has
  taken reasonable care.
• It may sometimes be unjust and unfair to
  the defendant as he may not have the
  blameworthy state of mind or may not be
  aware of the risk.
• In Callow v Tillstone (1900), despite having
  followed the food safety procedure, a
  butcher was convicted of selling unfit meat
  which was a strict liability crime at that
  time.
• In Environment Agency v Empress Car
  (1998), the company unaware of the leak caused by a hidden defect in a seal was held liable for the pollution caused.
• In R v G (2008), a 15-year-old boy was
  found guilty of the offence of rape of a
  child under 13 after raping a 12-year-old
  girl though he had reasonable grounds to
  believe that she was 15.

Answer 62

x

Question 63

Advantages of Strict Liability
- Despite its controversy, strict liability is
generally accepted as it brings a number of
practical benefits, such as the need to
ensure that the health and safety of the
public are properly protected.
- Crimes of strict liability are easier to prove
because mens rea is not required, saving
the prosecution and courts a lot of time and
resources.
- As defences to crimes of strict liability are
more difficult, it promotes compliance with
laws and regulations by making clear what
acts should not be committed or omitted

Answer 63

x

Question 64

Solutions to Problems of Strict Liability
- For crimes that are statute-based, whether
the defendant is strictly liable often
depends on statutory interpretation.

• In order to strike a balance between the
  pros and cons of strict liability, courts
  generally presume that mens rea is required
  unless specified in statute or case law.

Answer 64

x

Question 65

Sweet v Parsley (1970)

• The court established the presumption that
  criminal offences require mens rea for
  conviction.
• If the statue is reasonably capable of two
  interpretations, the one that is most
  favourable to the defendant must be
  adopted.
• If there is a lack of clear indication in the
  Act as to whether the offence is an absolute
  offence, it is necessary to go outside the
  Act to find out the intention of Parliament.

Answer 65

x

Question 66

Gammon v A-G of Hong Kong (1985)
- The court reaffirmed the presumption that
mens rea is required for criminal offences.
- The presumption is particularly strong
where the offence is a true crime (i.e.
crimes that are not quasi-criminal
offences).
- The presumption can be displaced if the
Act clearly, or by necessary implication,
indicates strict liability.
- The presumption can also be displaced if
the issue is of social concern, such as
public health and safety.
- The presumption stands unless strict
liability can better achieve the objective of
the statute.
- If one subsection of the Act creates an
offence of strict liability, this does not mean
the other section will follow.
- The presumption can be displaced if the
offence is a regulatory offence or carries a
small penalty.

Answer 66

x

Question 67

Nurse and Anor v Republic of Trinidad and Tobago (2019)
- The court reaffirmed the presumption that
mens rea is the ingredient of every offence.
- If the Act lacks a clear indication that the
offence is intended to be absolute, it is
necessary to go outside the Act to establish
this was the intention of Parliament.
- If there are two reasonably capable
statutory interpretations, the one that is
most favourable to the defendant must be
adopted.
- Serious penalties militate against (prevent)
offence being of strict liability.
- Whether it is a regulatory offence and the
severity of the penalty should be
considered when deciding whether mens
rea is required.
- Some offences, in same context, may
require mens rea whilst others do not.
- Potential for unfairness to luckless victims
weighs against strict liability.
- Strict liability may be warranted for
offences of public interest.
- In deciding whether presumption of mens
rea is rebutted, the court must consider the
requirement for mens rea in other respects
or other offences in the same sections,
severity of penalties and stigma of
conviction, and importance in public
interest.
- The public interest factor can outweigh the
other factors.
- Offence only imposes absolute liability if
none of its elements requires mens rea.

Answer 67

x

Question 68

ACTUS REUS

Answer 68

x

Question 69

Elements of Actus Reus

• Conduct (always required)
• Any circumstances necessary to render that conduct wrongful (if any are required)
• Result (if any is required)

Answer 69

x

Question 70

Act Requirement
- There can be no criminal liability if the
defendant has done nothing.
- The act alone may be criminal regardless of
the result of the act, i.e. strict liability.
- Common conduct crimes where an act is
required include perjury, theft, making off
without payment, rape and possession of
drugs or a firearm.
- For conduct that meets the act requirement,
the act must be voluntary.

Answer 70

x

Question 71

Involuntary Act
- It is conduct which is done by the muscles
without any control by the mind.
- It tends to incur no criminal liability.
- It can be resulted from diminished
responsibility, insanity or automatism.

Answer 71

x

Question 72

Automatism
- It refers to conduct performed by someone who has no control over.
- It is commonly defined as spasms, reflexes,
convulsions or acts committed in a state of
unconsciousness, such as sleepwalking in R
v Burgess (1991).
- But it can also be a dissociative state due to
external factor such as post-traumatic stress
disorder from being raped, as in R v T
(1990).
- It is divided into sane automatism and
insane automatism, both of which can be
used as a defence to criminal liability.

Answer 72

x

Question 73

How to Identify Actus Reus
- Find the definition of the crime.
- Distil the actus reus from that definition.
- Identify the act of the defendant which you
are to rely on in establishing that actus reus.
- For example, under S67(1) of the Sexual
Offences Act 2003, the offence of
voyeurism is committed if for the purpose
of obtaining sexual gratification, a person
observes another person doing a private act.
- In this case, the act of observing is the
actus reus of the offence of voyeurism.

Answer 73

x

Question 74

Crime without Act Requirement
- It is a conduct crime that does not require
proof of harm.
- It requires proof of some form of wrongful
conduct.
- It does not require anybody to be hurt.
- Crimes without the act requirement include
situational crimes, crimes of possession,
crimes of omission.

Answer 74

x

Question 75

Situational Crime
- It is a criminal offence for a person found
to be in a prohibited situation.
- A person is liable for being an illegal alien
(i.e. illegal immigrate), as in R v
Larsonneur (1933).
- A person is liable for being drunk in charge
of a car in Duck v Peacock (1949).
- A person is liable for being found drunk on
the highway in Winzar v Chief Constable of
Kent (1983).

Answer 75

x

Question 76

Crime of Possession
- It is a criminal offence for a person found
to be in possession of a prohibited article.
- A person is liable for possession of
firearms, as in R v Deyemi (2008).

Answer 76

x

Question 77

Crime of Omission
- An omission can amount to the actus reus
of a crime.
- This is commonly a statutory strict liability
offence for regulatory purposes, but it can
also be a common law crime.
- It is a criminal offence for a person not to
act where there exists a duty imposed by
law or by statute.
- A person has a statutory duty to act as the
statute requires, but this duty can also be
imposed by common law.

Answer 77

x

Question 78

Crime of Omission

In R v Miller (1983), the defendant had
created a dangerous situation and owed a
duty to call the fire brigade upon becoming
aware of the fire. He was therefore liable
for his omission to do so.

Answer 78

x

Question 79

Crime of Omission

In R v Stone & Dobinson (1977), the
defendants were held liable for the death of
the sister of one of the defendants as there
was an assumption of responsibility for
them to look after her, including providing
medical help she needed.

Answer 79

x

Question 80

Crime of Omission

In R v Dytham (1979), an on-duty police
officer stood and watched a man beaten to
death outside a nightclub. He then left
without calling for assistance or
summoning an ambulance. He was
convicted of the common law offence of
willful misconduct in public office.

Answer 80

x

Question 81

Crime of Commission by Omission

• Omission can be the conduct that
  constitutes an actus reus to satisfy the act
  requirement.
• The result of the crime is caused by doing
  nothing, i.e. failure to act.
• For example, a mother starves her baby to
  death by not feeding it.
• R v Morby (1882), a child was dying of
  smallpox and the father refused to go for
  help as he thought that prayer would be
  enough, but the father was not liable
  eventually because the prosecution failed to
  prove beyond reasonable doubt that the
  child died because of neglect.

Answer 81

x

Question 82

Liability for Failure to Act
- The conduct must be capable of
commission by omission.
- The circumstances must be such as to
create a legal duty to act.
- The failure to act must be in breach of that duty.
- The failure to act must be voluntary.
- The harm must be caused by the omission.

Answer 82

x

Question 83

How to Defense against Failure to Act
- The defendant did as much as could be
expected in the circumstances.
- The performance of the duty was
impossible.
- The failure to act can be justified by
arguing that doing so would create a
dangerous situation for other people.

Answer 83

x

Question 84

Result Crime

• Sometimes, the conduct alone is not
  criminal without the result.
• For example, throwing a stone is not a
  crime, but if the stone hits a person, it will
  become a crime.
• Result crimes require both wrongful
  conduct and harm.
• There must also be a causal link between
  the wrongful conduct and harm.
• The prosecution must prove the causation
  that the defendant’s conduct was the cause
  of the prohibited result.

Answer 84

x

Question 85

Liability for Actus Reus
- A person voluntarily initiates a causal
sequence which ends in harm.
- He will normally be held liable unless an
act or event later renders the imposition of
liability inappropriate.
- For example, the chain of causation is
broken by an intervening act, so the actus
rea can no longer be seen as the cause of
the harm.

Answer 85

x

Question 86

English Criminal Code
- A criminal code (or penal code) is a
document that compiles all, or a significant
amount of, a particular jurisdiction’s
criminal law.
- Typically, a criminal code will contain
offences that are recognised in the
jurisdiction, penalties that might be
imposed for these offences, and some
general provisions.
- Unlike other jurisdictions such as the US,
English criminal law does not provide a
criminal code, though such an instrument
has often been recommended and
attempted.
- For example, the Criminal Code Bill 1989
was drafted and made a number of
recommendations, but it did not come to
fruition.

Answer 86

x

Question 87

What is the ‘act’ requirement’?

Answer 87

Generally, the rule is that to form actus reus, there must be a positive, physical act which causes the harm. (Generally, all offences have such external elements)

Question 88

What are the three exceptions to the act requirement?

Answer 88

• Situational Liability (R v Larsonneur, Winzar v Chief Constable of Kent)
• Possession Liability (R v Warner, R v Okoro)
• Omissions (See below)

Question 89

What are the conditions of liability for a crime of commission in respect of an omission to act?

Answer 89

-The act of commission must be capable of being committed by omission
-The situation must give rise to a legal duty to act
-The omission must be a breach of that duty
-The omission must be voluntary
-The omission must be the cause of the harm

Question 90

Under what circumstances will a duty to act arise?

Answer 90

• Statutory situations (Children and Young person’s act 1933)
• Special Relationship (R v Lowe, R v Gibbins [R v Gibbins and Proctor]
• Voluntary Assumption of Duty (R v Instan)
• Contractual (R v Pittwood)
• Medical profession (Airedale NHS Trust v Bland)
• Public Official (R v Dytham)
• Creating a dangerous situation (R v Miller, R v Evans)
  Continuing acts (Fagan v MPC)

Question 91

What is the difference between an act and an omission?

Answer 91

An act is a voluntary, external act which causes the harm
An omission is the failure to perform a duty to act so that it causes harm.

Question 92

Why is criminal liability for omissions controversial?

Answer 92

In brief, Criminal liability for omissions is controversial because it exposes people to liability for doing nothing. It is a delicate balance between collective interests and individualism, seen by some as an attack on personal autonomy There is also the question of overreach in assigning criminal liability to moral expectations. Finally, the crimes of commission by omission may run counter to the legality principle which should allow people the reasonable ability to know what is permitted and what is proscribed, legally.