Omission Flashcards
A Ashworth: omission is properly applied only to…
omission is properly applied only to a failure to do things which there is some kind of duty to do, or at least things which it is reasonable to except a person to do
Conventional View [12]
- reluctant to impose the liability, only in clear and serious cases
- confined to duties towards those for whom we voluntarily undertaken respon
- negative duty to all v positive duty specific group
- failure to perform an act with foreseeability morally less than performing the act, even though same consequences [Philmore LJ in Lowe]
- minimalistic stance -> respect for social values + social needs, setting limits to the freedom of easier than requiring certain actions
- individual autonomy and freedom
- chance, reducing the predicitibility of one’s obligations
- morality of aspration not the morality of duty
- too pure: individual autonomy as a supreme value -> we need social principles rather than isolationist individualism ->social co-op
Social Responsibility View [11]
- co-op element
- view of omissions begin from the duties of a citizen as citizen. (a) there is a threat of harm to another citizen who is in sudden peril, and has not voluntarily entered that condition, and (b) a citizen is in a position to prevent the harm or its continuance or to take steps towards the enforcement of the law.
- Promulgation
- Imposing duties to act - heavy burden of formulating defensible and workable criteria
- requiring each citizen to offer assistance to others in peril might on the one hand reduce the autonomy and privacy of others
- on the other hand make citizens into busybodies
- “social responsibility” view is unpractical because it would require each of us to avert or alleviate large numbers of situations which we know about.
- the principle of legality - it maintains that citizens are so unaccustomed to thinking in terms of legal duties to act except in circumstances which are well-defined and well-publicised.
- The question of how extensive one’s duty should be.
types of omission offences
- Failing to do certain acts
- Hybrid Act-omission offences
- Offences phrased in terms of acts for omissions ay suffice
Voluntary
The requirement of voluntariness -> voluntary
unconscious or uncontrollable movement, a failure to act when required (i.e. an omission)? is not “voluntary” if the duty-bearer is incapable of doing what is required?
Physical incapacity?
Causal Relationship
Once voluntary omission to perform a duty, the next question is whether it can be said to have causedthe result.
• uncertainty over the relationship between causation and omissions.
• the non-performance of a duty, the criterion of causation might appear to be submerged within the duty concept.
o English law: A caused the death of his child by making no effort to rescue him from drowning, whereas B did not cause the death of a stranger by making no effort to rescue him. On this view, both the duty relationship and the causal relationship are absent in the case of the drowning stranger.
• OR one must accept that the duty was present in the child case and not in the stranger case, and seek a concept of causation which assimilates the two cases.
o this concept must avoid regarding all non-acting as a cause of all events or results which could have been averted by acting
♣ we would all be responsible for causing myriad misfortunes each day
o In this way the argument returns to the duty-concept as the primary criterion, both because it establishes moral (if not strictly causal) responsibility and because it delineates in time and space the number of people who may be said to have omitted.
o Thus, we have to establish that an act and an omission are morally equivalent. Under those circumstances no separate causal enquiry is necessary, for a sufficiently close link exists.
Two subsidiary points about causation
First, those who regard the general “but for” standard of causation. If the court must be satisfied beyond reasonable doubt that the result would not have occurred but for this defendant’s omission.
o Secondly, form of “failing to do x” make no reference to results and therefore side-step all problems of causation;
♣ “conventionalists” -> Much depends on the requirement in the offence. If the offence requires intention, there may be no difficulty in holding that a person who knowingly fails to feed a young child intends to cause its death, but it may be awkward to describe a person who accidentally causes a fire.
♣ The latter example may involve a stretching of language, since the idea of intending a consequence is to occur. Since “knowingly” and “intentionally” stand on the same level of culpability, as do “recklessness” and “reckless knowledge” at a lower level, one might argue that the slight awkwardness about “intention” should not be accorded any practical consequences in the law.
accidentally caused but then failed to response – but look at the awareness of the consequence
Language
• linguistic conventions vs the principled approach (moral/social) - did mother actually ‘kill the child”? The Law Commission had thought to redraft to “casuing death’ – so as to ensure that murder and manslaughter by omission remain offences.
• LC’s general approach to omissions
o the first draft code contained an express provision tending to limit omissions liability to established “duty-situations” and to offences which specify that they may be committed by omissions, but this was criticised as an unwarranted narrowing of the law .
o The Law Commission’s solution is to re-draft some offences in terms of “causing” the result, in order both here and generally “to leave fully open to the courts the possibility of so construing the relevant (statutory) provisions as to impose liability for omissions”
• If the Code is unable to give any guidance, the issue will remain largely one of judicial interpretation.
• Difficulty that our language is replete with active verbs
o “Usage still draws the line short of causing things to happen by doing nothing except letting events take their course without intervention.”
o 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.
♣ However, judicial decisions in the medical sphere have shown some attachment to a distinction between allowing a patient to die and causing a patient’s deat
♣ The distinction may, as Kennedy remarks, be regarded as “important as a social precept, while the desired end is accomplished.”
• The proper solution is not to warp the concepts of omission, duty, knowledge and causation, but to provide for such cases to be determined on new principles of JUSTIFICATIONS. This would require the courts to be explicit about the grounds for exonerating doctors or nurses, rather than concealing the reasons behind the act/omission distinction.
• the courts have not found a consistent approach to conflicts between linguistic convention and general principle. Can a landowner be said to “cause polluting matter to enter a stream” by failing to notice that a crack had appeared in a settling tank, through which the pollutant escaped? The key question was whether the term “cause” embraces omissions.
• At one level it could be argued that where a statute requires “an act” this clearly excludes a mere omission; but, at the level of general principle, it could be said that the criminal law should generally ensure that acts and omissions (where there is a duty) are accorded equivalent treatment.
o Two reasons might be given for taking this approach. One would be the context of the offence and the mischief at which it is aimed
o The second and more general reason would be that acts and omissions are morally on a similar level and should therefore be accorded equal treatment by the law unless a reason to the contrary appears. This proposition draws strength from the social responsibility view.
• The argument here is that there should be recognition of a principle that criminal statutes should be interpreted so as to apply to omissions as well as to acts, where a relevant duty can be established, unless the context indicates otherwise.
Duty Requirements [PRUDorCC]
- Prior Dangerous Act
- Relationship Duties
- Undertaken duties
- Duties of ownership or Control of Property
- Citizenship Duties
Miller
o Miller(1983) -> D accidentally started the bed burning with his cigarette. He left the bed smouldering and moved to another room. The fire spread and engulfed the house. D admitted that he knew he had set the bed on fire: all he said was that he had nothing with which to put it out.
o He was convicted of recklessly damaging the house by fire.
o HoL, is to hold that starting the fire was D’s act, that this act continued as the bed burned, and that when D realised this and knew that the fire might spread, this amounted to recklessness which combined with his continuing act so as to constitute the crimewhenever a person creates the risk of harm by an act and subsequently realises this risk, there is a duty to take steps to avert or minimise that risk.
Miller
o Miller(1983) -> D accidentally started the bed burning with his cigarette. He left the bed smouldering and moved to another room. The fire spread and engulfed the house. D admitted that he knew he had set the bed on fire: all he said was that he had nothing with which to put it out.
o He was convicted of recklessly damaging the house by fire.
o HoL, is to hold that starting the fire was D’s act, that this act continued as the bed burned, and that when D realised this and knew that the fire might spread, this amounted to recklessness which combined with his continuing act so as to constitute the crimewhenever a person creates the risk of harm by an act and subsequently realises this risk, there is a duty to take steps to avert or minimise that risk.
• In Miller, as in these other two cases, it is the authorship of the original risk-creating act which justifies the imposition of the duty upon D. The passer-by who saw the fire would not, on this reasoning, have a duty to summon the fire brigade. The law is justified in imposing this duty on D because of his causal responsibility for the creation of the risk, because D is present at the time and (presumably) able to take action, and because D would be readily identifiable in such a situation as the person with the duty.
o On that basis this head of omissions liability might be brought within the conventional view; it would certainly be easy to bring it within the social responsibility view.
Fagan
• Where D created the risk intentionally in the first place there is clearly a duty to prevent it from materializing, and a mere
renunciation of intention after the original act but before the prohibited result is insufficient to relieve D of liability.
• where D was originally unaware of the risk or effect of his conduct.
o Fagan
♣ Where D inadvertently drove his car on to a policeman’s foot and then deliberately refrained from moving it, this was held to be a continuing act rather than an act followed by an omission.
Lowe
- Lowe (1973 - denying that commission of the offence of wilful neglect was necessarily an “unlawful act” for the purposes of manslaughter,
- whilst in Stone and Dobinson (1977) maintaining that a duty towards a relative (a fortiori towards one’s own dependent child) can form the basis for manslaughter conviction.
Gibbin and Proctor
the courts regarded the parent’s duty towards a young child as so self-evident as not to require analysis or authority. (so long as the parent is shown to have had the required mental element).
Stone and Dobinson
o S and D allowed S’s sister to stay with them as a lodger. The sister developed anorexia nervosa, stayed in her room and became very ill. S and D made some ineffectual attempts to find her doctor. The sister subsequently died. The Court of Appeal upheld the defendants’ convictions for manslaughter. It was held that S had a duty because the sister was occupying a room in his house and was a blood relative. D was held to have “undertaken the duty of trying to wash her, of taking such food to her as she required, …” So it seems that the Court of Appeal held that by giving assistance to S’s sister D undertook to continue this assistance.
o if she had done nothing she would have had no duty of this kind (although she may have had a duty towards the sister as a member of the household, a point which is undecided).
o It is unclear whether D would have been held to have undertaken this kind of duty if the sister had been living alone in the next house, and as she fell ill D had started to take food to her, etc.
