• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

“English law does not in general impose liability for a failure to act despite the fact that there may be compelling moral justifications for doing so - For example, the courts have often explained that there is no legal duty upon a stranger to

Extracts from this document...

Introduction

"English law does not in general impose liability for a failure to act despite the fact that there may be compelling moral justifications for doing so. For example, the courts have often explained that there is no legal duty upon a stranger to rescue a drowning child." Asses the truth of this statement and consider whether the current principles governing liability for omissions are satisfactory. Generally criminal conduct usually takes the form of some Act, and a failure to act does not create any liability, as the Actus Reus is the essential element of a crime that must be proved to secure a conviction. " unless a statute specifically so provides, or...the common law imposes a duty upon one person to act in a particular way towards another...a mere omission to act cannot lead to criminal liability" Miller (1982). Although sometimes liability may be based on an omission to act. It must be possible in law to commit the crime by omission, for example, homicide could be committed by deliberately starving a child to death as it is failing to feed. However, it may not be possible to commit an attempt by omission because 'The Criminal Attempts Act 1981' s.1 requires 'an act more than merely preparatory.' There is also doubts as to whether the offences of assault and battery can be committed by an omission. ...read more.

Middle

In this kind of situation it is unclear how far the courts may go in developing obligations in other relationships, such as between friends, or sharers of accommodation etc. There is little direct authority. An omission may also lead to conviction through statutes, for example s.170 'Road Traffic Act.' States that, 'If, in a case where this section applies by virtue of subsection (1)(a) above, the driver of a motor vehicle does not at the time of the accident produce such a certificate of insurance or security...' Many statutes make it an offence to fail to do something, creating a duty to act. 'R v Dytham (1978)' shows another situation where there is a duty to act, whilst acting as an officer of justice. Dytham was a police officer who failed to intervene and carry out his duty to stop the fight. He was convicted of wilfully omitting to take any steps to carry out his duty. There may also be a voluntary assumption of responsibility such as that in 'R v Stone and Dobinson (1977)' The defendants assumed a duty of care to Stone's sister, fanny, who was living with them and was suffering from anorexia nervosa. Their feeble attempts to help her amounted to gross negligence which was sufficient for a manslaughter conviction. The problem here is that Stone and Dobinson actually did their best for Fanny, but due to their low intelligence this was not good enough, so they may not have ...read more.

Conclusion

A problem arises here of when to distinguish between allowing a person to die rather than to keep them alive by life support, and the current principles in this area may be unsatisfactory. In some cases, continuing acts may mean that an omission may make D liable, such as in R v Kaitamaki (1985) where the victim had at first consented to having sex with the defendant but had withdrew her consent. It was held that the actus reus of rape is a continuing act and D was liable for the offence when he failed to stop when consent was withdraw. The same principle can be seen in 'Fagan (1969)' where D's mens rea was superimposed over the continuing act. One question as to the principle of omission in criminal law is that of morality, and it is assumed that the law should not intervene with questions of morality. It should be said that if the law was altered to create a general duty to act, problems may well be caused as attempts to help may actually do more harm than good. However, it may not be right that society is not required to help another in need. There are some proposals for reform of the law on omissions, and the law commission, in relation to offences against the person has suggested that liability for omission should be limited to serious offences, such as murder, torture, kidnapping and abduction etc. They also decided not to try to limit common law duties to act which at present give rise to liability for omissions. Laura Westwood ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our AS and A Level Sources of Law section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related AS and A Level Sources of Law essays

  1. Marked by a teacher

    the english legal system unit1 assignment4

    4 star(s)

    Access to Justice Act 1999 (together with the Legal Services Consultative Panel set up under the AJA) now have different ideas and there is little doubt that it will not be long before the two professions, to all intents and purposes, merge.

  2. Marked by a teacher

    How satisfactory is the current law of murder?

    3 star(s)

    The judge considers the question of would the outcome of occurred if it was not for the defendant. This is straightforward and there are hardly any problems with this, factual causation can be seen in the cases of R v Pagett (1933)

  1. Marked by a teacher

    The english legal system unit1 assignment3 three part question

    3 star(s)

    court that may have stood for many years, because no attempt has been taken to bring them to the highest court. As Lord Goff stated 'while certainty is much desired, the laws need to be flexible to meet the needs of the ever changing society.'Thus, in view of the increasing

  2. Marked by a teacher

    'In general, the criminal law prohibits the doing of harm but does not impose ...

    The defendant replied, 'Fuck you, you can wait', and turned off the ignition. He was convinced of assaulting the constable in the execution of his duty. This offence requires an act; an omission is not sufficient.

  1. Examine the relationship between law and morals and consider whether the law should support ...

    There is usually a slow transitional period this can be shown in society's attitude towards pre-marital sex. Generally, a law either exists or it does not exist. Its existence can be established. Morals however are much vaguer in their definition.

  2. Outcome (3): Analyse the provisions relating to the police powers of arrest, search, seizure, ...

    However they do not have the power to remove ones clothing other than an outer jacket and gloves. A police constable also has the right to search a vehicle attended or unattended. However, if a vehicle is unattended and the police damage the car whilst carrying out a search they

  1. Assess theeffectiveness of the Law in Achieving Justice for Indigenous People.

    The Protector had many duties, which included convincing indigenous Australians to involve themselves in labour, making them friendly to settlers and introducing tem to religion. When the office of Protector of Aborigines SA was abolished in 1856, it became the duty of the Commissioner of Crown to provide care for

  2. The Nature of Law in Society

    Article 8 Right to respect for private and family life 1) Everyone has the right to respect for his private and family life, his home and his correspondence. 2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work