English law does not normally impose liability for an omission or 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. Consider whether the current legal principles governing omissions are satisfactory (50 marks)

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‘English law does not normally impose liability for an omission or 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.’

Consider whether the current legal principles governing omissions are satisfactory (50 marks)

The term Actus Reus is the Latin translation of ‘Guilty Act’. The Actus Reus of an offence concerns all those elements of the offence not relating to the defendants state of mind, the Mens Rea. For the Actus Reus the act or omission must be a positive voluntary act on the part of the defendant. If the defendant has no control over his actions then he has not committed the offence. The Actus Reus must also be Positive except in certain cases; this is the area of law that states for someone to commit an offence they must positively cause an act and not an omission to act, The law also states that there is no legal duty upon a stranger to rescue a drowning child.

On the other hand, as there are several areas of law, 5 implemented by courts and 1 implemented through parliament, where a duty to act is existent there is often uncertainty on behalf of the defendant that they were under a duty to act in the first place. This could be solved by putting in a ‘good Samaritan’ law such as is in place in the Netherlands or France.

There are 6 categories of omission where a person owes a duty to act for another person; the first of these is Duty under a contract. When a contract of employment states that a person is under a legal duty to do a certain thing in a certain situation, a failure to do that thing may result in criminal liability.

One example of Duty under a contract is R v Pitwood 1902; the defendant was employed by a railway company to man the gate at a level crossing. The defendant lifted the gate to allow a cart to pass and then went off to lunch failing to put it back down. A train later collided with a horse and cart killing the train driver. The defendant was liable for the death of the train driver as it was his contractual duty to close the gate.

Another Example of duty of care under a contractual agreement was R v Adomako 1994, the appellant was an anaesthetist in charge of a patient during an eye operation. During the operation an oxygen pipe became disconnected and the patient died. The appellant failed to notice or respond to obvious signs of disconnection.

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However Adomako could also fall under the category of duty of care under a professional duty to act so his level of duty should be greater than Pitwood.

Another reason this can be seen as not satisfactory is that they are just doing there jobs and if their duty puts them selves at risk it should not be seen as necessary for them to act, But as they are getting paid to do a job they should be trusted to fulfil their duty and therefore be liable for their mistakes.

The second category of omission is duty of ...

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Summary: the description of the ways in which a failure to act can bring criminal liability is accurately set out and supported by relevant case authority. The arguments in favour of reforming the law are insufficiently developed and the question is not fully addressed. Rating: ****