Law Essay: Omission

In general, the criminal law prohibits the doing of harm but does not impose criminal liability for an omission. However, there are justifiable exceptions to this general principle.

Assess the truth of this statement by reference to situations where a failure to act may result in criminal liability

Criminal liability in criminal law accepts that a person must commit an unlawful act with mens rea. However criminal law accepts that in certain circumstances a person who fails to act where there is a legal duty of care and does something negligently can also be liable. This is called omission.

Some countries have a Good Samaritan law which means that all citizens have a duty to help one another in emergency situations. However British judges do not like this because it implies that the defendant ought to have acted and to impose a duty is to strike at the defendant’s freedom. Instead judges and parliament have established some legal duties of care in certain types of relationships through common law and statutes.

An example of statutory duty which the courts applied comes from the Children and Young Persons Act 1991 which states that parents have a legal duty of care towards their children, to feed and cloth them. Before the 1991 act the case of Gibbins and Proctor established that there is a duty of care where there is a relationship. This case is an example of the parent-child relationship as the defendant’s failure to feed his daughter was enough for the criminal liability for the actus reus of murder.

Other cases in which he common law judges have created some legal duties include the case of Pitwood, which illustrates a contractual duty. The defendant was a railway keeper who omitted to shut the gates and was found guilty of the manslaughter when a person was hit and killed by a train. The court held that because of the nature of his job, his duty was not only towards his employer but to others who used the gate.

There can also be a duty through ones official position. This is rare but occurred in Dytham where a police officer saw a man being beaten up and did nothing to help. He was found guilty of neglecting to perform his duty.

The defendant can also be liable where the duty was undertaken voluntarily. In Stone and Dobinson, Dobinson had voluntarily undertaken to look after Stone’s elderly sister and so was found guilty of her manslaughter when she died from malnutrition. The Court of Appeal said that by taking her into their home they had agreed to take care of her.

Lastly, there is a duty where the defendant set in motion a chain of events. This was created by Miller where the defendants mattress caught fire and the defendant did nothing. The house caught fire and the defendant was convicted of arson as he knew there was a dangerous situation but failed to take any steps to deal with it.

However it can be difficult to decide when a duty of care exists. It is normally the judge who determines whether there is a duty of care and the jury decide if there is a duty of care and if that duty has been breached. This means that the law is capable of expanding to cover more situations as stated obiter in Khan and Khan where the defendant had supplied heroin to a new user who took it in their presence and collapsed. The defendants left her alone and by the time they returned to the flat she had died. However this can be seen to make the law uncertain.

Secondly, it can seem harsh that someone who accepts an adult into their home has assumed a duty towards them as adults are generally considered to be responsible for their own life. The argument for this is that if the adult is vulnerable then the adult taking care of them is in the best position to ensure potential harm is avoided. This duty can be fulfilled simply by summoning help and the defendants in Stone and Dobinson were found guilty because they failed to do so.

Lastly many statutes impose duties and many of the laws in this area create strict liability offences. The justification for this is that it is for the greater good of society. One example is the Domestic violence, Crime and Victims act which makes all household members liable for failure to protect a child. This makes it easier to succeed in prosecution which is important because the law should provide children and vulnerable adults with as much protection as possible.