Is There Any Rational Basis for the Distinction Which Criminal Law Draws Between Acts and Omissions? How consistently is the Distinction Maintained?
2. Is There Any Rational Basis for the Distinction Which Criminal Law Draws Between Acts and Omissions? How consistently is the Distinction Maintained?
An act is an action which directly or indirectly causes a result. In criminal law, a person is held liable for an action which, when the required mens rea1 and actus reus2 can jointly be proven to have caused harm to a person or property, unless they have a reasonable defence3.
In contrast people are usually not convicted for their omissions: "it is evident that to punish men by law for not rendering to others all the service which it is their [moral] duty to render would be preposterous" 4. Making all moral omissions a crime would encompass too many people and would create an oppressive society5. An omission in law is where action is not taken which would prevent or reduce the risk of harm or damage to a person or property, where a person has an obligation to act. A policeman in Dytham [1979] QB 7226 was found guilty of misconduct whilst acting as an officer of justice, whilst as he was in uniform and on duty he stood by and failed to assist a man who was beaten to death by a doorman of a nightclub. His omission to act had contravened his statutory obligation to help, which his profession imposed on him.
Where a relationship or assumption of care is present, there is an automatic duty to act, so that if an omission to act results in "legally recognised harm"7, liability may be applied. In Stone and Dobinson [1977], the court of appeal ruled that by assuming duty of care for his sister they were "obliged to summon help or care for the sister when she became infirm"8. Lord Atkin ruled that a sentence of manslaughter should be applied to the fatalistic omission, especially when it was proven that if help had been attained at the time of her last bathing, two weeks before her death, she would have survived.
A further scenario where liability is addressed for an omission is when "an initial inadvertent action results in harm which the defendant later knowingly fails to avert when the opportunity presents itself"7, represented by the case of R v Miller (James) [1982]9. The Court of Appeal ruled that a coincidence of mens rea and actus rea is usually fundamental, however, "an unintentional act followed by an intentional act or, in appropriate cases, reckless omission to rectify it or its consequences, could be regarded together as an intentional act"10. The sequence of events from Miller's accidental falling asleep with the lit cigarette in his hand, to discovering that the mattress was smouldering, to ignoring the fire hazard, and moving to a next room was considered, by the House of Lords, as one continuous reckless act. Miller was thus found liable for arson due to his omission to rectify the dangerous situation, which he himself had created, as soon as the opportunity arose.
An act is an action which directly or indirectly causes a result. In criminal law, a person is held liable for an action which, when the required mens rea1 and actus reus2 can jointly be proven to have caused harm to a person or property, unless they have a reasonable defence3.
In contrast people are usually not convicted for their omissions: "it is evident that to punish men by law for not rendering to others all the service which it is their [moral] duty to render would be preposterous" 4. Making all moral omissions a crime would encompass too many people and would create an oppressive society5. An omission in law is where action is not taken which would prevent or reduce the risk of harm or damage to a person or property, where a person has an obligation to act. A policeman in Dytham [1979] QB 7226 was found guilty of misconduct whilst acting as an officer of justice, whilst as he was in uniform and on duty he stood by and failed to assist a man who was beaten to death by a doorman of a nightclub. His omission to act had contravened his statutory obligation to help, which his profession imposed on him.
Where a relationship or assumption of care is present, there is an automatic duty to act, so that if an omission to act results in "legally recognised harm"7, liability may be applied. In Stone and Dobinson [1977], the court of appeal ruled that by assuming duty of care for his sister they were "obliged to summon help or care for the sister when she became infirm"8. Lord Atkin ruled that a sentence of manslaughter should be applied to the fatalistic omission, especially when it was proven that if help had been attained at the time of her last bathing, two weeks before her death, she would have survived.
A further scenario where liability is addressed for an omission is when "an initial inadvertent action results in harm which the defendant later knowingly fails to avert when the opportunity presents itself"7, represented by the case of R v Miller (James) [1982]9. The Court of Appeal ruled that a coincidence of mens rea and actus rea is usually fundamental, however, "an unintentional act followed by an intentional act or, in appropriate cases, reckless omission to rectify it or its consequences, could be regarded together as an intentional act"10. The sequence of events from Miller's accidental falling asleep with the lit cigarette in his hand, to discovering that the mattress was smouldering, to ignoring the fire hazard, and moving to a next room was considered, by the House of Lords, as one continuous reckless act. Miller was thus found liable for arson due to his omission to rectify the dangerous situation, which he himself had created, as soon as the opportunity arose.
