Is there any rational basis for the distinction which criminal law draws between acts and omissions? How consistently is the distinction maintained?

Can a legal system keep its hands in its pockets while a father is watching its child drown in shallow waters? By means of rationality he is not drowning the child himself. By means of causation he is not causing the death either. As causation in law is not equal to causation in physics it is open to certain fictions which may be construed. Hence rationality is not given. Would the legal system be morally blind and allow the father to watch his child drown, it would destroy the very basis society lives on. A pure rational analysis of causation would not lead to a satisfying verdict.

In Airedale NHS Trust v. Bland the doctor in fact switches off the life machines, the switching off is an act, and it is but for his action Mr. Bland dies. This though has been construed as an omission. In R.v.Stone and Dobinson did the defendant really kill her? In R.v.Miller one creates the idea of a continuing-act and in R.v.Instan legal-logic reaches the climax when the defendant actually caused the death through doing nothing. This is not rational, but morally wanted.

The distinction between acts and omission find further sophistication after it has once accepted the existence of moral in law and upon man to act accordingly. Fletcher establishes a binary divide among the conduct of omissions. On the one hand he sees the law asking him to do something, which leads to an obligation to act. If he does not do so, he is omitting. Thus he is in a breach of a duty to act. On the other hand Fletcher sees the law imposing liability for failing to intervene to prevent the occurrence of a serious harm (to do positive good). This Fletcher prefers to call commission by omission. Following the alley of doing positive good, of moral or of, as Fletcher likes to put it “commission by omission”, we now come back to Lord Macaulay’s four situations. These four situations all establish a liability for failing to act and thus are to be categorised to Fletchers commission by omission. These four situations in which duties have been recognised, are duties arising out of contract, duties arising out of relationship, duties arising from care of the helpless, duties arising from creation of a dangerous situation.

The split between act and omission however is not consistent. A crime such as the failure to render assistance as the French or the German  Penal Codes know does not exist in the United Kingdom. In France and Germany one follows the idea of Hogan, who wishes to distinguish between conduct and causation. Hence a defendant is penalised for the omission but is not visited with liability for the consequences of that omission. Hogan thus would like to split liability for the omission itself and liability for the realisation of the elements of a crime. Hence it splits between the act of omitting and the act of the elements of a crime. This though does not reflect English law. In England despite, all distinction between act and omissions, act and omissions are punished equally. Even more the categorisation fails to follow a strict line, and is much more up to the will and analysis of some individual judges.

Interestingly in Airedale NHS Trust v. Bland (AC,HL) neither a moral nor a legal reason to decide. One rather feels the judges wanted to decide in a certain way. Suddenly the duty to act has been construed not to exist. Anthony Bland a patient had been in a persistent vegetative state for more than three years. The doctors and family wanted to withdraw treatment and artificial feeding and the health authority successfully applied for a court order to do so. The Official Solicitor appealed on the basis that withdrawal breached the doctor’s duty to the patient. Lord Mustill held that a doctor was under a duty to act in the best interests of a patient, continuation of treatment was not always in those best interests. As recovery ceased to be a possibility, there was not chance of realising his interest and thus the duty. A fiction around the “interest of the patient” has been created to furnish a basis for an answer to the existence of a duty for the doctor. As this is removed no liability is visiting the doctor. The problem which arises is whether there is a difference between allowing a patient to die slowly as were the case in Airedale v. Bland and giving somebody a lethal injection producing an immediate death. Certainly the former is more passive than the latter, but is not watching a child drowning being as passive as seeing a patient dying despite one could keep him alive. Would there be a difference if somebody with the intension to kill Anthony Bland would switch off the life machine and the doctors with the clear knowledge that he will face death, and stop struggling for him being alive? The distinction between act and omission is far from being answered strictly in this case. It is not clearly an act of direct murder, as well it is not merely an omission. Lord Mustill, despite him being in favour of the verdict, finds this case to make an “intellectually dubious distinction between acts and omissions”.

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Word Count: 1386

Bibliography

Allen, Michael J.

Elliott and Wood’s Cases and Materials on Criminal Law

8th Edition, London 2001

Cit.: Allen, page

Lacey, Nicola / Wells, Celia

Reconstructing Criminal Law Texts and Materials

2nd Edition, London 1998

Cit.:Lacey, page

Ashworth, Andrew

Principles of Criminal Law

2nd Edition, Oxford 1995

Cit.: Ashworth, page

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