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Topics such as omissions and causation (actus reus) and intention and recklessness (mens rea) are popular with examiners. Omissions and causation could be examined separately in essay form or together in a problem question. Similarly, intention and recklessness could be examined separately by essays or with causation and/or omissions as a problem question on murder/manslaughter. Essay questions on omissions often ask you to consider the competing academic views. Essays on causation might ask for a critical appreciation of the rules of causation. Essays on intention and recklessness often focus more on a critical evaluation of the development of the law.
Before you begin
Itâs a good idea to consider the following key themes of actus reus and mens rea before tackling a question on this topic.
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Question 1
âThe arguments for the conventional view may appear strong and practical, but they depend on a narrow, individualistic conception of human life which should be rejected as a basis for morality and ⊠as a basis for criminal liabilityâ (Ashworth, âThe Scope of Criminal Liability for Omissionsâ [1989] 105 LQR 424 at 430).
With reference to the above quote, critically evaluate the approach taken to omissions liability in English law.
Answer plan
Address the academic debate between Ashworth and Williams in your introduction.
Set out the general rule on liability for omissions.
Evaluate the exceptions to the general rule.
Consider the academic arguments put forward by Ashworth and the response by Williams.
Diagram plan
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Answer
Professor Ashworth is a critic of what he calls âthe conventional viewâ of omissions liability. In the article from which this quote is taken, Ashworth advocates the social responsibility view which holds that A should be under a legal duty to assist B, because he argues that society recognises that we have a duty to support and help each other. The conventional view maximises individual autonomy and Ashworth argues that this view requires an âindividualistic conception of human lifeâ.1 However, Professor Williams argues that there is a clear moral distinction between an act and an omission. He states that we have âstronger inhibitions against active wrongdoing than against wrongfully omittingâ2(Williams, B. (1991) Criminal omissions: the conventional view. LQR 86).3
In England and Wales, there is generally no liability for an omission to act, because such liability would restrict individual autonomy. This means that a person can only usually be held criminally liable where he/she has performed a positive act. However, there are six exceptions where the law imposes a duty to act upon a person and failure to so act can lead to criminal liability.
The first exception applies where there is a special relationship between the parties, such as a parentâchild relationship (Gibbins and Proctor (1918) 13 Cr App R 134) or a doctorâpatient relationship (Airedale NHS TrustvBland [1993] AC 89). A special relationship will result in a duty being imposed upon the defendant to act to assist the other. However, there is uncertainty over how far this category extends to other relationships, such as siblings and spouses or civil partners.4Smith [1979] Crim LR 251 suggests that a married couple owe a duty to each other. However, this case was not relied upon in Hood [2004] 1 Cr App R (S) 73. A husband was deemed to owe a duty to his wife, but this decision appears to have been made on the basis of a voluntary assumption of responsibility (he was her carer).5
A further exception to the general rule arises where the defendant voluntarily assumes responsibility for the victim (e.g. by acting as carer). In such circumstances, the law imposes a duty upon them to continue to do so (Stone and Dobinson [1977] 2 All ER 341, Instan [1893] 1 QB 450 and Gibbins and Proctor). A defendant may be under a contractual duty to act. Any failure to act in accordance with the terms of the contract may result in criminal liability (Pittwood (1902) 19 TLR 37). Similarly, a person in public office, such as a police officer, will have a duty to act in accordance with their position (Dytham [1979] QB 722). A statutory provision may impose a duty on a person to act, such as section 1 of the Children and Young Persons Act 1933, which makes it an offence for a person with responsibility for a child to wilfully neglect the child, and section 170 of the Road Traffic Act 1988, which makes it an offence for a person to fail to provide his details after an accident or to report it to the police.
There is a duty on a defendant to act in order to avert a danger which he/she has created. In Miller [1983] 2 AC 161, the defendant fell asleep smoking a cigarette and woke to find the mattress on fire. He then fell asleep in another room. He was convicted of arson. When the defendant noticed the fire, he was under a duty to take steps to avert the danger. He was convicted due to his failure to so act. The obligation imposed by the law upon the defendant here was not restrictive of his freedom, as only a minimal contribution from him was required (e.g. phoning the fire brigade).6 This principle was applied in DPPvSantana-Bermudez [2003] EWHC 2908 (Admin) to impose a duty upon the defendant to warn a police officer that he had a hypodermic needle in his pocket. The duty arose after the defendant created a dangerous situation by telling the officer that he had no needles in his pockets prior to a search.
The academic debate about omissions liability arose after Professor Ashworth published the article from which the quote in title is taken. Professor Williams published a response to Ashworthâs article shortly after. While Ashworth subscribes to the social responsibility view and criticizes what he calls the conventional view, Williams comments that as a result of Ashworthâs article, he finds himself to be a conventionalist.
Ashworth states that these two views are not polar opposites. Ashworthâs âsocial responsibility viewâ holds that A should be under a legal duty to assist B, because society recognises that we have a duty to support and help each other. Ashworth (1989) argues that this view â⊠grows out of a communitarian social philosophy which stresses the necessary interrelationship between individual behaviour and collective goodsâ. This approach relies on the argument that all of society will benefit from the duty to be helped when in extreme peril. However, it safeguards liability by insisting that the peril far outweighs cost or inconvenience to the person required to assist. Ashworth argues that liability should be limited to those who had particular opportunity to assist.
However, the conventional view is that A should not be compelled to serve B. According to this view, the law aims to maximise each individualâs autonomy and liberty. Citizens should not be encouraged to interfere in the lives of strangers, nor should t...
