Criminal liability is generally thought to require an act, as opposed to an omission and that the act be performed voluntarily. Discuss the significance of these requirements.

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Criminal liability is generally thought to require an act, as opposed to an omission and that the act be performed voluntarily. Discuss the significance of these requirements.

        Criminal liability is imposed when a person can be fairly blamed for causing a prohibited harm or result. This blame then justifies the enforcement of punishment, which depending on the seriousness of the crime, can range from a simple fine to a mandatory life imprisonment. The potential restriction of rights and freedom, as well as the social stigma of being labeled a criminal, hence demand that certain criteria should be met before someone can be liable for his actions. The requirements expressed in the statement above fall within the ambit of actus reus, the objective conduct element of a crime that is a precondition for criminal liability. We shall look at the significances of these requirements from various perspectives.

        Actus reus is concerned with conduct. The term ‘conduct’ in the context of criminal law comprises of both acts and omissions. The distinction between them is important, because liability will only be imposed for an omission if a legal duty to act can be established. Katz suggested the following test: ‘if the defendant did not exist, would the harmful outcome in question still have occurred the way it did?’  There are several other distinctions, but the distinction that justifies a requirement of act over omission is this- A prohibited act creates a negative duty to act (for example, a duty to not kill) while a prohibited omission creates a positive duty to act (for example, a duty to save a drowning person). A negative duty grants an individual the liberty to act in any way as long as the prohibited act is not committed. On the other hand, a positive duty restricts an individual’s liberty as it forces the individual to give up other activities in order to perform that duty. The restriction of personal liberty when omission liability is imposed justifies the following ways in which courts deal with omissions.

        The scope of criminal liability for acts is far wider than that of omissions. In result crimes, an actor is liable only if his conduct is the legal cause of the harm specified in the offence. If the cause is arises from a voluntary act, criminal liability will be imposed. However, if the cause is an omission, the actor will be liable only if he has a legal duty to act but failed to do so. In R v Sinclair, Sinclair was convicted of manslaughter because he owed the deceased, his close friend of many years, a legal duty of care. In contrast, Johnson was not convicted simply because he was not legally required to help the deceased, although his omission was as significant as Sinclair’s in causing death. The behaviour of Johnson ‘may have indeed been deplorable, but English law has not so far developed to the stage of treating it as criminal’.

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        Even if an actor has a legal duty to act, courts tend to treat omissions liability in result crimes as exceptional and in need of special justification. In Lowe, it was held that the omission to provide for one’s child contrary to s.1(1) of the Children and Young Persons Act 1933 could not satisfy the requirement of an unlawful act for constructive manslaughter, which allows a lower degree of culpability than required for murder. On the other hand, if the crime requires a higher degree of culpability, omission liability can be imposed as in Adomako, where a doctor was ...

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Good. The student strikes an effective balance between case law and academic commentary. There are more recent cases the student could have used however; this would improve the mark. Further, the student does not draw a clear enough distinction between omissions-based liability, and involuntariness principles. A better approach would be to consider the omissions "exceptions" - failure to act, statutory duty, creation of a dangerous situation, contractual duty, and so on - in the context of voluntariness. 3 Stars.