Omissions in UK criminal law. The concept of omissions in criminal law pertains to the actus reus element of a crime. Standard legal doctrine requires the defendant to take positive action before being criminally liable.

Now that we have established what amounts to criminal liability under the doctrine of omissions, we can try to understand why omissions are treated separately from normal acts - this might not make any practical difference to ones criminal liability. The main reason for this is based upon considerations of autonomy (Simester & Sullivan, 2007). The society we live in respects citizens as individuals. They have free will in determining their own choices rather than being dictated to by legal duties. Although there is a paradox in that criminal law can also be seen as restricting our autonomy, affirmative action generally enhances our opportunities to be authors of our own destiny (Wilson, 2002). However punishing omissions would require us to subjugate our own interests to those of others and would therefore compromise our autonomy. The reason that the duties mentioned above are not challenged with regard to autonomy is because of the way society has been structured in modern times. The individual and the community are intrinsically linked. One is dependent on others for peace and harmony, which in turn is a pre-requisite for exercising one’s autonomy. In order to enjoy individual autonomy there needs to be societal welfare. Imposing duties on citizens allows for such societal welfare. It can therefore be argued that duties enhance an individual’s autonomy. However one can also use a utilitarian argument that “if the enforcement of sanctions for violations of law exerts any influence on human behaviour, the imposition of liability for failure to avert harm that one has not caused can have a net effect of reduced harm” (Husak, 1980). Such a utilitarian argument was in the case of R v Stone & Dobinson. Stone and his mistress had agreed to care for his sister who was suffering from anorexia. Her health deteriorated and she died. One can be argue that Stone and his mistress should be given autonomy to make their own decisions and go about their own business without interfering in the life of his sister. However if medical help had been sought for Stone’s sister no one would have suffered great harm. Seeking medical help would therefore have produced a net effect of reduced harm. So, the question remains whether limiting the scope of liability for omissions on the principle of safeguarding autonomy is valid/ socially useful. It is important to safeguard individual autonomy since that is what liberal western democracies are about. Giving people the choice to control their destiny and our duty to others are both important for promoting general welfare. Therefore, in my opinion the current law maintains a reasonable balance between people exercising their judgement and taking decisions and their duty to others around them.

Critics of the current law on omissions argue that we owe a moral duty towards other individuals in society. Only this can ensure welfare for all. This is often linked to the ‘easy rescue’ principle that is commonly used in France. According to French law, every person above the legal age has a general duty to preserve public welfare and harmony.  Any person above legal age, who sees another human being in peril, must take all reasonable steps to provide help. This argument is usually justified on moral grounds. “When dealing with morally outrageous conduct leading to harm that could have easily been prevented, it just feels right to impose a legal duty” (Romohr, 2006). The extent to which law should reflect morals is the subject of intensive debate, most notable in the Hart-Devlin debate. However, with regard to omissions the debate is more than just a contest between morals and law -applying the ‘easy rescue’ principle encourages people to act for the greater good and therefore should be encouraged. You could also apply Locke’s social contract theory to justify the principle of ‘easy rescue’. “On the other, ’when [one’s] own Preservation comes not in competition,’ one ought to, as much as possible, ’preserve the rest of Mankind’. Moreover, because each person in society surrenders much of one’s natural liberty to a properly created government, and because the first duty of the government is the ‘preservation of the society,’ the government would seem to have the power to require rescue to further the public good” (Romohr, 2006). Since the law takes reasonable steps it is safe to assume that it eliminates situations where personal peril is involved. Thus a balance between common sensibility and personal safety is achieved. Therefore, in my opinion the law regarding liability for omissions needs to extend to those of ‘easy rescues’.

Further on from the issue of autonomy and morals there is also the issue of fair labelling. The principle of fair labelling is important to criminal law because different offences may criminalise actions which have differing social significance (Simester & Sullivan, 2007). The offence that a person is charged with must not only be clearly communicated to the person being charged but also to the public. If a person is found guilty of manslaughter or murder because he failed to rescue, in the public domain there is nothing to distinguish such a case from a person who took concrete steps to cause someone’s death. The inability to make such a distinction has social implications. It affects the accused is treated and significantly reduces job prospects. Therefore implementing a wider scope of liability to omissions could lead to unfair labelling.

A further problem that arises from trying to establish liability for omissions is the difficulty in proving causality. Causation by omission can be denied since causation usually involves a physical action and therefore cases of causation by omission are not genuinely causal (Pundik, 2006). However, it can be argued that laws in omissions are causal factors, a form of quasi-causation, since although there is a lack of physical interaction in causing the act, the prevention of committing an act caused the consequence.

Therefore, the law on omissions is broadly satisfactory. It tries to maintain a delicate balance between personal autonomy, morality and punishing people when they fail to perform a duty. However, more can be done in order to incorporate the continental ideology of ‘easy rescue’. This will extend the law to reflect the way society has changed. Although our ideas on the importance of human life have not changed, we need changes because of the way we now live.  When fundamental interests are involved (life, physical integrity), we should pause to reflect before accepting that an individual's freedom of action is more valuable than a requirement to carry out a non-burdensome rescue (Menlowe, 1993).

Bibliography

Husak, D. N. (1980). Omissions, Causation and Liability. The Philosophical Quarterly , 30 (121), 318-326.

Law Teacher. (2009). Glossary of Legal Terms. Retrieved October 24, 2009, from Law Teacher: http://www.lawteacher.net/Glossary.php

Menlowe, M. (1993). The Philosophical Foundations of a Duty to Rescue. In M. A. Menlowe, & A. McCall, The Duty to Rescue. Smith.

Pundik, A. (2006). Can One Deny both Causation by Omission and Causal Pluralism? The Case of Legal Causation. Working Paper Series , 1-39.

Romohr, P. W. (2006). A Right/Duty Perspective On The Legal And Philosophical Foundations Of The No-Duty-To-Rescue Rule. Duke Law Journal , 1025-1058.

Simester, A. P., & Sullivan, G. R. (2007). Criminal Law Theory and Doctrine. Oregon: Hart Publishing.

Wilson, W. (2002). Central Issues in Criminal Theory. Oregon: Hart Publishing.