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“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

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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.

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