Abstract

Among the rights guaranteed to all human beings, those valued above all are undoubtedly

the right to life, liberty, and property. While these rights are assured to all, the State is

empowered to generally curtail enjoyment of these rights under certain circumstances, such as

when a state of war or national emergency exists. The law also allows the deprivation of these

rights to particular individuals, as punishment for crimes done to society. Most of the time these

penalties would be in the form of fines, constituting a deprivation of part of the person’s

property; sometimes, however, it would entail the person’s incarceration, depriving him of his

liberty. In some jurisdictions, the penalty involves depriving the person of his life.

Because the punitive nature of criminal laws invades upon a persons’ rights, the nature of

the offences must be such that a harm had been inflicted upon another by the deeds of the

accused, which he had clearly intended, in order to justify the harshness of the punishment.

These two elements – the offensive act and the malicious intention to inflict harm – must

therefore be evident. However, where the offence done had been an omission to perform a deed,

then the moral question arises as to whether the absence of an act would justify the imposition of

punishment. This is the crux of the debate on criminal liability attached to omissions.

This study explores the nature of omissions and the reason why certain types of

omissions, and not others, would be worthy of sanction. Since omissions are construed as failure

to perform a duty, the types and sources of duties are also examined to gain insight into the type

of harm inflicted by the omission. The study delved into the philosophical arguments and set of

attributes upon which to base an assessment of whether criminal liability should be attached to

omissions. It proposes a hierarchy of omissions and the degree to which criminal liability may

be attached to each classification.

SHOULD OMISSIONS BE PENALIZED?

Justin Phillip V. Xavier

Tomas Antonio Garcia

Henry Liu

January 15, 2011

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Table of Contents

Abstract 1

Title page 2

Table of contents 3

Table of cases 5

Table of statutes 6

Chapter 1: INTRODUCTION 7

1.1 Background of the study 7

1.2 Problem statement 9

1.3 Objectives 9

1.4 Methodology 10

Chapter 2: THEORY OF OMISSIONS IN CRIMINAL LAW 11

2.1 Elements of a crime 11

2.2 Definition of ‘omission’ 11

2.3 Distinguishing acts from omissions 12

2.4 Omissions as a source of liability 13

Chapter 3: SOURCES OF DUTY AS BASIS OF OMISSIONS 17

3.1 Liability for omissions under the common law 17

3.2 Statutes that impose a duty to act 18

3.3 Failure to prevent or report criminal conduct 18

3.4 Duty arising from special relationships 19

3.5 Duty to avert a danger that was created by defendant 26

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3.5 Failure to provide medical treatment 27

Chapter 4: TYPES OF SOURCES OF DUTIES 32

4.1 First type: voluntary assumption of duty 33

4.2 Second type: voluntary performance of an act that incurs a duty 34

4.3 Third type: justification without voluntariness 35

Chapter 5: SPECIAL ISSUES IN OMISSIONS 38

5.1 Corporate manslaughter by omission: omissions by police officers 38

5.2 Liability for omissions in international criminal law 43

Chapter 6: ANALYSIS 45

6.1 The central debate on attaching liabilities to omissions 45

6.2 The Act-Omission Paradox 48

6.3 Summary 50

Chapter 7: CONCLUSION 53

Bibliography 56

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Table of Cases

Airedale National Health Service Trust v Bland [1993] AC 789, All ER 821

Director of Publi Prosecutions v Santa-Bermudez, EWHC 2908 [2003] (Admin).

Fagan v Metropolitan Police Commissioner [1969] 1 QB 439, [1968] 3 All ER 442, [ 1968] 3 WLR 1120, DC

Lennard’s Carrying Co., Ltd. v Asiatic Petroleum Co., Ltd. [1915] AC 705.

R v Adomako, [1994] HL

R v Chattaway [1922] 17 Cr App R 7

R v Gibbins & Proctor, [1918] 13 Cr App R 134.

R v Instan, [1893] 1QB 450

R v Khan, [1998] Crim LR 830

R v Lowe, [1973] QB 702

R v Stone & Dobinson, [1987] QB 354.

R v Miller [1983] ] UKHL 6, 2 AC 161

R v Senior [1899] 1 QB 283

R v Yuthiwattana (1984) 80 Cr App R 55

Re B (A Minor) (Wardship: Medical Treatment) [1981] 1 WLR 1421

Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290

Re J [1991] 2 WLR 140

Re T (Adult: Refusal of Treatment) [1993] Fam 95

Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam 64

Re Wyatt (A Child) (Medical Treatment: Parent’s Consent), Hedley J. [2004] E.W.H.C. 2247; [2005] All E.R.(D) 294: [2005] E.W.H.C. 693 (Fam.)

Tesco Supermarket Ltd. v Nattrass [1972] AC 153

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Table of Statutes

Child and Young Persons Act 1933, section 1

Companies Act 1985

Criminal Damage Act 1971, sections 1 & 3.

Criminal Law Act 1967, s. 4

European Convention on Human Rights, Article 2

Health and Safety at Work Act 1974, sections 3 and 33

International Court of Justice Statute, 38 (1) (c)

International Criminal Court, Rome Statute

Offences against the Person Act 1861

Value Added Tax Act 1994

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1. INTRODUCTION

1.1 Background of the study

The ability of the state to condemn, restrict, and even completely take away the liberty of

a person is probably one of the most awesome powers that the state may exercise, and rightfully

so. The exercise of this coercive power exerts great impact upon the lives of individuals who are

tried, convicted, and sentenced under the state’s justice system, that a misuse or abuse of such

power is capable of causing a grave injustice to persons whose lives and reputations would have

been irreversibly destroyed.

A country’s criminal law refers to that set of laws that are imposed upon individuals for

mandatory compliance. The purpose of promulgating and enforcing provisions of criminal law

is to establish and maintain peace and order in a society, in order to create an environment which

conducive to progress and prosperous co-existence among the nation’s citizenry. In order to

compel compliance, the criminal law system is also a penal system, signifying that its provisions

decree a set of penalties for offenders of the law, the severity of which depends upon the gravity

of the offense and the grievousness of the harm done.

The provisions of criminal law define those offences that individuals may be held liable

for; the definition and description of the important elements of these offences is extremely vital

to the fairness and effectiveness of the law, because all those upon whom the law is enforced are

entitled to prior notice before the heavy burden of the law is made to apply to them. Prior notice

is important for a fair and just application of the law, because individuals must first be informed

of those offences for which they may be punished, in order for them to comply with and

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therefore avoid such punishment. This poses little problem where what the law forbids is the

criminal act, because all the individual has to do is to abstain from engaging in such criminal acts

in order to avoid sanction.

There may arise a dilemma, however, where what is punished is an omission to do a

certain act. Omission is the failure to perform an act that is mandated by law. There are

instances where the omission to do an act may clearly be identified as a violation of law because

it thwarts the intention of the law for the performance of a duty. These are the instances when

the duty to be performed is clearly defined in the letter of the law, and no controversy exists as to

the obligation of the individual to perform the act. Omission therefore is a violation of the law,

for which a penalty may be imposed.

There are some omissions, however, that are attached to duties which are implicit upon

the individual. These are omissions of duties the individual is deemed to have in relation to the

welfare of other persons to whom he may have voluntarily committed to perform the duty, or to

whom the law presumes he has a duty of care. It is in the uncertain nature of such duties that the

controversy about their omission arises. When a person is merely presumed by the law to have a

duty to render in favour of another, where the individual is not even aware of the duty, or may

not have consented to it, there is much debate about the fairness in imposing a penalty upon its

omission. The injustice arises out of the lack of prior notice, or of a seeming transgression upon

the right of the individual to freely enter into an obligation upon his discretion and according to

his will, without being imposed upon unnecessarily by the state. The nature of some of the

omissions that have been recognised in jurisprudence are of this latter type.

This study therefore undertakes to examine the philosophical and practical considerations

of omissions as a source of criminal liability, and to what extent, if ever, such liability may be

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imposed in such omission. The study shall take into account the theory and case law pertinent to

the UK criminal law system.

1.2 Problem Statement:

The problem that this study shall seek to resolve is: Should omission be penalised, and if

so, in which circumstances should it be penalised? The topic chosen for discussion is considered

highly significant because in the continuing development of law, debates have arisen as to the

propriety and fairness of pronouncements by the court that appear to violate individuals’

fundamental rights. The debate on criminal liability attaching to omissions is one such area of

legal development. The study is therefore timely in this sense, as the question of liability due to

omissions has begun to likewise permeate the arena of international law.

1.3 Objectives

In order to arrive at a proper conclusion to the above stated problem, the following

objectives are intended to be met:

1.3.1 To define and describe the nature of omissions, and the requisites for liability to attach to

them;

1.3.2 To identify the types and sources of duty the omission of which gives rise to liability;

1.3.3 To distinguish among various types of duties and/or omissions, in order to discern

attributes which may form the basis for determining whether liability should attach to the

type of omission or not.

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1.4 Methodology

The study employs the qualitative method of research which is appropriate to most legal

and philosophical studies. A search of documents and records of past cases shall be combined

with information gathered from articles in academic and professional journals on criminal law

and its application, within the context of UK law. Theory shall be referred to books and essays

of authors of note in the field of legal philosophy in English law. The logical-recursive-iterative

method of qualitative data analysis (QAD) is employed in the analysis of the data gathered.

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2. THEORY OF OMISSIONS IN CRIMINAL LAW

A closer examination of the nature of omissions is necessary to shed light on the merits

and pitfalls of imposing penalties on it, and to distinguish it from the positive criminal act.

2.1 Elements of a crime

A crime is generally defined, for the purposes of analysis, by its two essential elements:

first, the actus reus, which is comprised of the prohibited act, omission, consequence or state-of-

affairs; and second, the mens rea, which refers to any element that assigns fault to the accused,

including intent or recklessness. The actus reus has also been described as the external

manifestation of the offence, and contemplates everything about the crime except the internal

mental state of the accused.1

For most criminal offences, the actus reus is comprised of a positive act the accused is

alleged to have carried out, and upon which liability is imposed. Ordinarily there can be no

liability that may attach when the accused has not done anything. There is, however, a different

significance attached to the fact that the accused has not done anything when he was expected to,

or even counted upon to, do something. Omission of an act, in certain cases, comprises the actus

reus that give rise to criminal liability.

2.2 Definition of “omission”

Omission, in criminal law, is a failure to act. Simply stated, it means not doing (or

omitting) to do an act when one is obligated by law to do it. Ordinarily, a crime involves doing

an act; not doing anything does not ordinarily cause any liability for the individual. However,

1 Smith, J.C. & Hogan, Brian. Criminal Law, 10th ed., Oxford University Press, p. 30

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when there is a duty to perform some positive act, the failure to fulfil this obligation is what

constitutes an omission within the contemplation of criminal law. The obligation to act arises

because of the status of one person to the other, such as a parent or guardian to a minor child2, or

a physician to his patient.3 The obligation also may materialise because of an earlier act or

conduct of the person, such as committing to or accepting to take care of that other person,4 or

because such action created a risk of harm for another.5 Humanitarian international law6 has

likewise created several specific duties

2.3 Distinguishing acts from omissions

There are some offences which, by their nature, may only be committed as positive acts,

and not as omissions. Examples are acting to prevent the apprehension of an offender,7 assault

and battery,8 and similar offences. There is also a confusing category of offenses that, while they

are omissions to perform certain acts, are themselves construed as acts. For instance, the failure

of a landlord to replace his tenant’s lost key could be viewed as a positive ‘act’ of harassment

against a tenant.9 Such cases would be best approached by evidencing a set of incidents or

events instead of just that single event, in order to show a state of mind or a habitual act where

the mens rea becomes apparent. In that case, the omission would be interpreted as an ‘act’ i.e.,

the actus reus, for which the mens rea is appreciated.

2 Ashworth, A, ‘The Scope of Criminal Liability for Omissions’ (1989) 105 Law Quarterly Review 424 at 4243 R v Instan, [1893] 1QB 4504 Airedale National Health Service Trust v Bland [1993] a All ER 8215 R v Stone & Dobinson, [1987] QB 354.6 R v Miller [1983] 2 AC 1617 Contrary to the Criminal Law Act 1967, s. 48 Fagan v Metropolitan Police Commissioner [1969] 1 QB 4399 Yuthiwattana (1984) 80 Cr App R 55

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The distinction between acts and omissions is confusing, as shown in the example above

of the landlord’s omission to provide a tenant’s key. The crucial distinction, it seems, is the

presence (or absence) of a reasonable expectation that a person will behave a certain way

because of the circumstances. A case is usually cited that illustrates the difference between act

and omission. In Fagan v Metropolitan Police Commissioner,10 the defendant was asked by a

police officer to draw his vehicle up to the kerb. In the course of doing so, the defendant halted

his car with one wheel on the foot of the officer. When asked to immediately move the car off

the police officer’s foot, the defendant was noticeably slow in restarting his car’s engine, and

appeared to take his time in moving the vehicle off the distressed constable’s foot. Because of

his intentionally delayed response, the defendant was held guilty of omission to move the care

immediately, amounting to an assault on the officer. The ruling apparently took the initial

positive act – that of the driver pulling his vehicle onto the foot – as unintentional, otherwise it is

this act that would have been cited as constituting an assault, and not the omission to move the

car quickly off the foot.

2.4 Omissions as a source of liability

Mead points out the necessity of determining the causal status of omissions.11 This refers

to the causal connection between what is deemed an ‘omission’ and the harm or injury it is

supposed to have caused. The reason that the causal status is so important is that it goes to the

core of criminal liability. A person should not be held responsible for something he did not do

(or, likewise, something he did) if it did not redound, whether wholly or partly, to the harm or

endangerment of another. 10 Fagan v Metropolitan Police Commissioner [1969] 1 QB 439, [1968] 3 All ER 442, [ 1968] 3 WLR 1120, DC11 Mead, Geoffrey ‘Contracting into Crime: A Theory of Criminal Omissions’ Oxford Journal of Legal Studies,

Jul 1, 1991, Vol. 11, Issue 2 , p. 149, citing Jonathan Bennet, John Harris, P.J Fitzgerald, Douglas N. Husak, and others.

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The problem with omissions is creating the connection between the failure of a person to

act, and the eventual harm. Omission is simply ‘not acting’, meaning that there is already set

into motion a chain of events, without the participation nor fault of the offender held guilty of

omission, that would produce the end result of harm or endangerment. Whether the actor (or

non-actor) is there or not, the inevitable consequence will happen, which means that the non-

actor did not cause it. The so-called ‘causal status’ between the omission and the harm is thus

outside of the usual paradigm of the actor intervening to cause the result.12

Critics of this line of reasoning observe that it is limited to a particular conduct and

sequence of events. The search for a cause of an occurrence is limited to seeking an explanation

for why something happens. The reasoning traces the effect to the cause in an unbroken line of

logic to the initial cause. However, observers believe that this inquiry is nearsighted and

unrealistic. In most cases, the supposed cause is not the only determinative event; for instance,

Leavens explains that in the case of a child drowning, the logical cause is that the child went

swimming. But it is likely true that the child may have gone swimming many times before,

without drowning. It is also possible that the child may have gone swimming and had been

distressed, but was assisted by a life guard before any serious harm had happened. Therefore, in

the instance that the child had actually drowned, the absence or inaction of a life guard may have

been an intermediate cause, or even the logical cause in the normal course of events, because the

presence of a life guard or his action in the execution of his duties is normally expected in this

situation.13 In such an occurrence, it is more ‘normal’ for people to attribute the drowning to the

absence or inaction of the life guard rather than the fact that the child went swimming. Thus, the

cause of harm is not only attributed to the positive act that had set in motion the course of events,

12 Leavens, Arthur. ‘A Causation Approach to Liability for Omissions’, (1930), 30 Philosophical Quarterly 1.13 Ibid., p. 150

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but also to the omission of an act that is reasonably expected to avert the likely harm or risk

before it could come to pass.

Given that omissions may be the cause of harm, the next difficulty is determining which

omissions may be the source of liability. The fact that omissions means ‘not doing’, then the

absence of any act may lead to an arbitrary assignment of liability if there are no guiding

precepts by which a person may be pre-warned of the likelihood of liability. As earlier

mentioned, the first attribute appears to be that the action should be reasonably expected – that is,

given the likelihood of the impending harm, that the expected action from the designated actor

should be actually relied upon as a regularity, and the omission of that action by the actor is in

breach of the regular expectation. It is the deviance from the pattern of regular performance and

the attribution of blame to that departure that would lead the ordinary person to ordinarily

conclude that the failure to act caused the risk or harm.14

Going one step further, the act or performance that was relied upon but which was

departed from should constitute a duty upon the person who was expected to have performed the

act. As nearly all jurisprudence states, there must be a duty to act and a duty of care that must be

attendant upon omissions for which the individual may be held criminally liable. This is evident

in the example given, that the person who may be held liable for the drowning child is the life

guard. It may be possible that other good swimmers may have been in the immediate area, and

that their failure to rescue the drowning child resulted in the latter’s death. While an omission

did occur in the ordinary sense, such an omission is not open to criminal liability because such

persons did not have the duty to act to save the drowning child. They had no duty to vigilantly

oversee the situation at the swimming area to search for persons in possible peril. Because the

duty did not exist, such persons may not be held liable for the drowning.

14 Leavens, op cit., p. 150.

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It is therefore necessary, in the study of omissions, to determine what statute and

jurisprudence have identified as sources of duties the fulfilment of which is mandated by law.

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3. SOURCES OF DUTY AS BASIS OF OMISSIONS

3.1 Liability for omissions under the common law

The common law rule on liability arising from the inaction of a person is that no liability

attaches if an individual fails to perform a general legal duty on behalf of another in a dangerous

situation.15 Even police forces, for lack of legal status as an organisational or corporate body,

was generally immune from prosecution in the case of involuntary manslaughter prior to the

Corporate Manslaughter and Corporate Homicide Act 2007.

The essential elements of involuntary manslaughter by breach of duty includes:

(1) proof of the existence of the duty;

(2) breach of that duty causing death; and

(3) gross negligence which the jury considered justified a criminal conviction.16

Criminal law turns on the established principle that liability for an omission shall be

incurred only where a duty to act exists. Different theories have been proposed in trying to

determine what situations, in particular, constitute a duty to act. Jurisprudence has specified that

there is a duty to act where a close family relationship exists,17 where there is voluntary

assumption of responsibility,18 and where a dangerous situation is created by the individual who

incurs the liability.

15 Stewart, M J ‘How Making the Failure to Assist Illegal Fails to Assist: An Observation of Expanding Criminal Omission Liability.’ Journal of Criminal Law, Spring 98, Vol. 25 Issue 2, p385

16 R v Adomako, (1994) HL17 R v Lowe, (1973) QB 70218 R v Stone & Dobinson (1977) QB 354

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3.2 Statutes that impose a duty to act

Several regulatory statutes, as well as other provisions of law, impose specific duties on

certain individuals that obligate them to act in a certain way, and specifically state that if such

acts are not complied with, then the individual who fails to comply will be held criminally liable

for his or her failure to act. For instance, the Companies Act 1985 and the Value Added Tax Act

1994 require a business owner to perform certain acts particularly with regard to reporting and

disclosure requirements and payment of duties of his business. Another example would be road

traffic laws that require motorists who are involved in road accidents to stop, otherwise they

would be designated as hit-and-run offenders; also, the failure to provide a breath sample when

asked to do so would also incur liability for the offender. Likewise, if an organisation does not

comply with its duties to observe the statutory health and safety regulations, then the officers of

that organisation may be held criminally liable.19

In this type of omission, the duty to act is created by a provision of law, the actus reus of

which is also defined in the failure to comply with it. This type of omission has the advantage of

being clearly identified and described, and the scope of the compliance delimited. A person is

therefore certain where he or she transgresses the statute, since the scope of the duty will also be

clarified.20

3.3 Failure to prevent or report criminal conduct

Since the offence of misprision of felony was abolished in 1967, it is not now an offence

for an individual not to report crimes committed by other persons. However, misprision of

19 Institute of Leadership and Management. Managing Lawfully – Health, Safety and Environment Super Series, 4th edition. Oxford: Elsevier Science (2003), at p. 3.

20 University of London, ‘Chapter 4, Actus Reus: Omissions.’ University of London External Programme. Accessed 10 Dec 2010 from http://www.londoninternational.ac.uk/current_students/programme_resources/laws/ subject_guides/crim_law/criminal_ch4.pdf

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treason is still in effect, and under it a person who fails to report an act of treason may himself be

held criminally liable. Furthermore, it is also a common law offence to refuse assistance to a

constable who calls for it, in seeking to resolve a breach of the peace. More recent laws have

likewise made it an offence to fail to disclose: personal knowledge about terrorist activities or

funding for them, or knowledge or suspicion of money laundering.

3.4 Duty arising from special relationships

It is possible for the law to impose obligations upon persons who have a special

relationship with one another and who therefore, socially and morally, have a duty of care to

them because of that relationship, in specific situations. Three relationships shown here are those

of a parent or guardian to a child in his or her care; an individual towards other persons by virtue

of his public, contractual, or official duties; and an individual towards a person unable to care for

himself or herself, to whom the individual has voluntarily committed to assist or care for.

3.4.1 Care of children and other dependents

A parent or other person over 16 years old who is responsible for a child under 16 may be

held liable for any act that may be tantamount to be wilful neglect of that child, in such a way

that the child suffers unnecessary suffering or injury to his health.21 Included in such care for the

child are the provision of adequate food, clothing and medical care, but are not limited to these

acts. Where such wilful neglect results on the death of the child, the offender may be prosecuted

for manslaughter by gross negligence; the fact that death occurred as a result of neglect does not,

however, lead to a charge of manslaughter, but that such may happen because of evidence of

21 Child and Young Persons Act 1933 ,section 1.

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intent to harm the child be means of such neglect. It is also possible for a parent who

deliberately starves a child to death to be liable for murder.22

It should be noted that the obligation to care for children and other dependents is

mandated under the Child and Young Persons Act 1933 (CYPA). The statute covers only

children below 16 years of age, however, and not older offspring. Thus, an 18-year-old,

perfectly healthy, daughter is considered of age and is ‘entirely emancipated’, and her parents are

under no special duty of care for her, to the point that they may incur criminal liability if they

‘neglect’ her fundamental needs. However, the common law recognises that special duty of care

may arise in the concept of family relationships where the emancipated person lived with another

as husband and wife, or where the child who is above 18 years old still lives with his parents as

dependent, due to studies or similar reason, for which purpose a duty of care still exists between

related persons even as adults.23

The application of the law in the case of children was brought into sharp public focus by

the case of Baby ‘P’. The baby boy was born on March 2006, and died seventeen months later

due to injuries sustained over a period of time. The body of the child was covered in bruises and

scabs; he sustained eight broken ribs, a broken back, a finger missing its top. There is no doubt

that during the entire seventeen months that the child lived, he was subjected to constant abuse

and neglect, both by his mother and her live-in lovers who had histories of cruelty and child

abuse. However, the negligence in this case had also been with the professionals who had been

seeing the child and monitoring his condition through the months prior to his death, and may be

held culpable, pending the results of investigation.24 These professionals are discussed in the

next section under failure to discharge one’s contractual, public and official duties.22 R v Gibbins & Proctor, 13 Cr App R 134 [1918]. 23 R v Chattaway 17 Cr App R 7 [1922]24 Fresco, Adam ‘After 17 months of unimaginable cruelty, Baby P finally succumbed.’ The Times, November 12,

2008. Accessed 10 Dec 2010 from http://www.timesonline.co.uk/tol/news/uk/crime/article5140511.ece

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3.4.2 Contractual, public or official duties

Liability may arise by virtue of a person’s official duties, his contractual relationships and

the obligations thereof, or by reason of the responsibility to fulfil a public duty. In R v Adomako

(1994) HL, ‘D’ was an anaesthesiologist in charge during an eye operation. ‘D’ failed to observe

that a tube inserted into the mouth of the patient ‘V’ had become detached from the ventilator.

As a result, ‘V’ suffered a cardiac arrest, and subsequently died. The court held that ‘D’ was

guilty of manslaughter by gross negligence, reasoning that ‘D’ owed ‘V’ a duty of care which

was breached, causing ‘V’s’ death and thereby amounting to gross negligence. According to

Lord McKay LC, gross negligence was dependent on:

“the seriousness of the breach of the duty committed by the defendant in all the

circumstances in which he as placed when it occurred and whether, having regard

to the risk of death involved, the conduct of the defendant was so bad in all the

circumstances as to amount in the jury’s judgment to a criminal act or

omission.”25

In the preceding section, the sad case of Baby ‘P’ was discussed, mentioning that

culpability may not lie solely with the mother or her live-in lovers, but also with the

professionals who attended to the child. Because such professionals were in a position to know

the long-term abuse of the child, but failed to act with the level or responsibility or duty attached

to their position, profession, or contract, they may, pending the conclusion of proceedings, be

held criminally liable for their omission to observe the duty of care they were obligated to

comply with.

25 R v Adomako, (1994) HL

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These professionals included Sabah al-Zayyat, the consultant paediatrician who saw

Baby ‘P’ alive, two days prior to his death. During the consultation, Al-Zayyat failed to detect

the broken back and eight broken ribs already sustained by the child. The record showed that the

examination could not be completed because the baby was ‘miserable and cranky’, and that Dr.

Al-Zayyat thought the baby had a cold.26

Another professional was Maria Ward, the social worker assigned to the case of Baby ‘P’

on 2 February 2007. Ward visited the child for the first time 20 days later. She spotted bruising

on the baby’s face, which the mother explained was due to a squabble with an older child; she

relied on assurances by the mother that she was ‘back on track’ and for the child to be taken off

the ‘at-risk’ register. Ward visited Baby ‘P’ four days before his death; she found the child

sitting in his pushchair with chocolate covering his fact and hands, purportedly to cover up the

bruises. Ward felt content to leave the child with his mother because she seemed co-operative

and properly supported.27

Paulette Thomas, who reported ‘no concerns’, was the health visitor charged with Baby

‘P’s’ case, but who visited the boy only four times in six months since the mother cancelled four

appointments. Finally, Gilly Christou, team manager at Haringey Social Services, reported five

months before his death that the child ‘appears to have a high pain threshold…It is concerning

that he does not seem to react to danger or pain. Only his mother can stop him, he does not seem

to stop himself.’28 These professionals, trained in their specialised fields, are presumed to have

the competence to easily detect that the child had been suffering unimaginable abuse and neglect,

and on the basis of themselves omitting to exercise that due care in the discharge of their duties,

may conceivably held accountable for the death of the child. Furthermore, the public outrage

26 Ibid.27 Ibid.28 Fresco, op cit.

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that followed this case was indicative of the widespread perception of society’s duty to protect

the vulnerable and therefore bringing all those professionals empowered by society to account

for their omission.29

There have been concerns aired by the social care practitioners concerning the

increasingly harsh consequences that may be meted out due to errors in professional judgment.

Society is becoming progressively risk-averse, not just from the point of view of the patients and

care recipients, but particularly from that of the care providers. The result is the exercise of

excessive caution due to the perceived need to play safe; this sometimes redounds to the denial

of independence to and the exercise of discretion by the care recipients, to the deterioration of

the quality of life.

Thus, the passage into law of the Corporate Manslaughter and Corporate Homicide Act

2007 was greeted with particular concern by care professionals. Prior to the CMCHA, guilt

attaches only if it may be proven that senior managers are grossly negligent in their individual

capacities. Under this scheme, as of 2005 only five such cases have ended in convictions

(Community Care, 2005). On the other hand, CMCHA compels investigators to look more

intensely at the organisation’s work practices as mandated by senior management.

3.4.3 Voluntary assumption of care for another

A person who voluntarily makes a commitment to care for another who is otherwise

unable to care for himself or herself because of old age, illness or infirmity, incurs for himself a

duty to fulfil that commitment, while the person is unable to take care of himself, or until that

29 Elliott, Catherine. ‘Liability for Manslaughter by Omission: Don't Let the Baby Drown!’ Journal of Criminal Law, Apr 2010, Vol. 74 Issue 2, p163-179; DOI: 10.1350/jcla.2010.74.2.627

25

responsibility is passed on to another. It should be noted that this type of duty is not protected by

legislation such as CYPA 1933 where the person in need of care is above 16 years of age.

The existence of a duty of care is also appreciated where there is a voluntary assumption

of responsibility. This was the case of R v Stone & Dobinson, where accused Stone and

Dobinson allowed Stone’s sister, Fanny, to live in their home. Fanny was known to them to be

anorexic and unstable. Although she initially was able to attend to her needs, her condition

gradually deteriorated to the point where she became bed-ridden. When it was apparent that she

was in dire need of medical attention, they failed to call for or provide medical assistance. The

sister eventually died as a direct consequence, in a condition of squalor and filth, her body full of

bed sores. The court held that both accused were guilty of manslaughter by gross negligence,

because of the duty of care they assumed when they accepted Fanny into their home. The fact of

the relationship between Fanny and her sister, defendant Stone, was merely incidental. In such a

case, Geoffrey Lane LJ elaborated on the standard that must be met for manslaughter by gross

negligence to apply:

“The duty which the defendant has undertaken is a duty of caring for the health

and welfare of the infirm person. What the prosecution have to provide is a

breach of that duty in such circumstances that the jury feel convinced that the

defendant’s conduct can properly be described as reckless, that is to say a reckless

disregard of danger to the health and welfare of the infirm person. Mere

inadvertence is not enough…The defendant must be proved to have been

indifferent to an obvious risk of injury to health, or actually to have foreseen the

risk but to have determined nevertheless to run it.”30

30 R v Stone & Dobinson (1977) CA

26

Throughout the years, however, the courts have been uncertain in categorizing those

types of voluntary relationships or commitments that places the commitment under the

classification of ‘duty’.31 There do appear to be three qualifications that guide judgements in

these cases: the awareness of the defendant that the victim is in a dangerous situation; the

defendant is apparently more capable and has a greater moral commitment than that of a third

party; and there are no other people involved in the care of the victim, indicating that the victim

is solely dependent upon the defendant for his care and welfare.32

In the Smith and Dobinson case, the two accused were held responsible for the victim

who lived in their house. Ownership of the residence, however, does not qualify the duty of

care. In R v Instan33 the accused ‘D’ was living with her aunt who was originally capable of

caring for herself. However, the aunt eventually became ill and physically incapacitated due to

gangrene in her leg. Eventually, she became unable to feed herself or even call for help;

however, ‘D’ neglected her, did not feed her nor summon medical help, even as ‘D’ remained in

her aunt’s house and eat her aunt’s food. The aunt eventually died of neglect, and her niece ‘D’

was held liable for manslaughter due to omission to exercise the requisite duty of care. In this

case, the liability proceeded not from the fact of their blood relationship, but because ‘D’, by

voluntarily staying in her aunt’s home and partaking of her food and resources, was implied to

have committed to look after her aunt’s welfare even as she benefited from her aunt’s bounty.

3.5 Duty to avert a danger that was created by defendant

Where a person who, by his own acts or fault, is responsible for the emergence of a

dangerous situation, a duty to undertake reasonable measures to mitigate or eliminate the danger 31 Ormerod, David. Smith and Hogan: Criminal Law. Oxford University Press. (2005) ISBN 0406977305.32 Mead, Geoffrey ‘Contracting into Crime: A Theory of Criminal Omissions’ Oxford Journal of Legal Studies,

Jul 1, 1991, Vol. 11, Issue 233 R v Instan, 1 QB 450 [1893]

27

may arise on his part. Failure to perform such steps to alleviate the danger may be tantamount to

gross negligence and give rise to criminal liability. In R v Miller,34 Miller was a homeless person

who had been smoking a cigarette when he fell asleep on a mattress in a house. Upon waking

and finding the mattress smouldering, instead of trying to douse the fire or calling for help, he

instead moved to a different room. Eventually, the fire flared up and spread, thereby causing

damage estimated at ₤800.35 Miller was tried and convicted for arson,36 not because he

intentionally started the fire, but because he failed to take any step to stop it or prevent it from

becoming worse.

On appeal, Miller reiterated his defense that there was an absence of actus reus

coincident with mens rea. In the decision issued by the House of Lords on appeal, the ratio

decidendi explained by Lord Diplock was doctrinal:

‘I see no rational ground for excluding from conduct capable of giving rise to

criminal liability, conduct which consists of failing to take measures that lie

within one's power to counteract a danger that one has oneself created, if at the

time of such conduct one's state of mind is such as constitutes a necessary

ingredient of the offence.’37

This was the first articulation of what eventually came to called the ‘principle of

supervening fault,’ that a person’s actions should give rise to a danger from which a duty to act

proceeds in order to mitigate or eradicate the danger, and that failing this, the person becomes

liable. This ruling established that actus reus did not solely mean positive action, but referred to

the set of events that transpired from the moment the fire began, until the reckless refusal of the

accused to extinguish the flames, leading to damage and injury. The starting of the fire and the 34 R v Miller, 2 AC 161 [1983]35 R v Miller, [1982] UKHL 6 at para. 16236 Criminal Damage Act 1971, sections 1 & 3.37 [1982] UKHL 6 at para. 176

28

reckless refusal constituted the actus reus and the mens rea of the crime of omission. The ruling

therefore clarified that a duty to act may be created by one’s own actions, and omission to

perform this duty cannot be blameless.

In another case, the defendant was convicted of ‘assault occasioning actual bodily harm’38

when, because said defendant failed to inform a police officer of the presence of a sharp object

(i.e., a needle) on his person, resulting in the officer pricking and hurting himself on the needle.39

Finally, in R v Khan,40 the Miller principle was applied by the Court of Appeal to the context of

manslaughter. Appellants provided the victim with heroin on which she inadvertently

overdosed. The appellants abandoned the victim, who thereafter died as a result of the overdose.

In this ruling, the appellate court that the trial judge should have determined, first and foremost,

if evidence existed upon which the jury may decide the existence, or absence, of a duty of care.

Having decided that a duty of care did exist, the next step would have been for the jury to find

out if the defendants had committed a breach of that duty of care.

3.6 Failure to provide medical treatment

An obligation to extend medical treatment to patients or other persons in need forms part

of the accountability of doctors and hospital authorities, omission of which may well lead to

criminal liability. In this matter, however, there are three special circumstances that qualify

whether or not the doctor and the hospital would be incurring liability. These situations include

refusal by the patient to consent to treatment; withholding treatment in the best interest of the

patient; and practical and financial considerations.41

38 Under the Offences against the Person Act 186139 Director of Publi Prosecutions v Santa-Bermudez, EWHC 2908 [2003] (Admin). Accessed 10 Dec 2010 from

http://www.bailii.org/ew/cases/EWHC/Admin/2003/2908.html40 R v Khan, Crim LR 830 [1998]41 Oxford University Publishing (OUP). Chap.1 – Actus Reus: The external elements of an offence. Accessed 10

Dec 2010 from http://www.oup.com/uk/booksites/content/0199275297/chap_1

29

3.6.1 Situation 1: Refusal by the patient to consent to treatment.

While ordinarily doctors and hospitals are under obligation to provide medical assistance

to patients under threat of criminal liability, there are instances when the patient refuses to

provide his consent to the medical procedure or assistance being offered by the doctor or the

hospital. In such cases, the doctor or hospital may not be held responsible for the omission of

care deemed necessary for the patient. Oftentimes, the opposite – that is, carrying out the

medical procedure despite the patient’s refusal, is itself the source of criminal liability.

In one such case, patient ‘C’, who is also paranoid schizophrenic, had been admitted to a

secure hospital under the Mental Health Act 1983, Part III. The doctors had recommended that

his gangrenous foot be amputated because it is a threat to his life. Patient ‘C’ then filed an action

seeking the court for an injunction to prevent the amputation of his foot without his written

consent. In this case, the judge appreciated that although schizophrenic, the patient did have the

capacity to manage his affairs, and was capable of understanding his condition. The judge

expressed satisfaction that the respondents failed to prove that the patient did not understand the

nature, purpose, and effect of the treatment proposed. The presumption is therefore in the

patient’s favour, and that despite his schizophrenia he did understand and has made a clear

choice on the basis of that understanding. 42 In this case, the doctors and the hospital are

precluded from imposing upon him the medical treatment he refuses to consent to.

There are also, however, exceptions to the exception to the general rule. There are

instances when the refusal of the patient to give his consent is pivotal in the decision. For

instance, in the case of minors where parents have refused the application of medical treatment,

the High Court has the discretion to make use of its wardship jurisdiction to supersede the

42 Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290

30

parents’ refusal,43 or the refusal of the minor patient himself.44 Sometimes the court may

likewise override the refusal of an adult patient refusing treatment where it deems that the adult

patient is lacking in capacity or is being unduly influenced;45 in such cases, the doctors must not

be remiss in providing the treatment, for to argue that the patient does not give his consent would

contradict the pronouncement of the court.

3.6.2 Situation 2: Withholding treatment in the best interest of the patient

While it is often the case that the doctor or hospital would recommend the treatment of

procedure and the patient would refuse to give consent, there are also instances when the reverse

occurs – where the patient, or more often the minor patient’s parents, would insist on the

performance of a medical procedure or treatment that the doctors or hospital would refuse to do

or give, on the ground that such treatment would not be in the best interest of the patient.

In Re Wyatt,46 Charlotte Wyatt was a premature baby with a birth weight of only one

pound, who needed to be ventilated during her first three months of life. She fought off infection

while her breathing and brain functions steadily deteriorated until the damage to her body was

deemed irreparable. She appeared to be deaf, blind, and incapable of voluntary movement. The

doctors and parents agreed that her chance of survival were not good; however, their point of

disagreement was whether or not Charlotte should once more be artificially ventilated if she

stopped breathing.

The doctors took the position that she should no longer be ventilated artificially, as such

would not be in her best interest, since the intubation procedure involved was distressful and

43 Re B (A Minor) (Wardship: Medical Treatment) [1981] 1 WLR 142144 Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam 6445 Re T (Adult: Refusal of Treatment) [1993] Fam 9546 Re Wyatt (A Child) (Medical Treatment: Parent’s Consent), Hedley J. [2004] E.W.H.C. 2247; [2005] All E.R.

(D) 294: [2005] E.W.H.C. 693 (Fam.)

31

painful to the patient, and it is expected that prolonging Charlotte’s life in this manner was

pointless. On the other hand, Charlotte’s parents, devout Christians, hoped for a miracle, and

therefore insisted that Charlotte’s life should be prolonged as far as possible. The court sided

with the paediatric team in deciding against artificial ventilation for the child, as such would be

against her best interest. In cases such as these, therefore, the omission to perform one’s duty of

care in the traditional sense, where such could be construed as against the best interests of the

patient, does not fall under category of criminal omissions.

In another case, it was observed that the best interest of the patient did not necessarily

redound to his being kept alive at all costs. Lord Goff penned an instructional distinction

between acts and omissions in the context of the patient’s best interest. He drew the line

between the cases where a doctor decides not to provide treatment to prolong life, and where the

doctor administers a lethal drug to actively cause the death of the patient. Where a doctor omits

to provide care, the omission may be lawful where such was the wish of the patient, or even

where the patient is incapacitated to give or withhold consent. Where the doctor actively ends his

patient’s life, such act is never lawful though the doctor is motivated by humanitarian ideals to

end suffering.47 In omission, therefore, there is at least a possibility of legitimacy, which is

completely absent in the positive act.

The types of controversies under this situation are numerous. The question may likewise

arise in the case of those individuals advanced in age to the point of being incapacitated, or those

babies born severely handicapped either mentally or physically, where major or even repetitive

surgery may be necessary to prolong life.48

47 Airedale National Health Service Trust v Bland [1993] AC 789, p. 86548 Re J [1991] 2 WLR 140

32

3.6.3 Situation 3: Practical and financial considerations

The third situation in the matter of omission of medical care has to do with practical

matters and the cost of medical care involved. Apart from the consideration as to whether

treatment would be in the best interest of the patient, there is the need to determine the possible

financial burden and the manpower limitations. It is simply not practical, from the point of view

of available resources, that all persons whose lives may be prolonged by major surgery or

intensive (and invasive) cutting-edge medical procedures will receive it. For many, the cost

would not be worth the additional years if such would only prolong life marginally.49

49 Ormerod, David. Smith and Hogan: Criminal Law. Oxford University Press. (2005) ISBN 0406977305

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4. TYPES OF SOURCES OF DUTIES

The foregoing discussion delved into the sources of duties to act and the extent to which

their omission should be the cause of criminal liability. Mead50 categorizes the sources of duty

under three types: undertaking, knowledge of incurring of liability, and justifications

unconnected with voluntariness.

4.1 First type: voluntary assumption of a duty.

The voluntary assumption by a person to do something is seen as a ‘positive justification’

for duty to exist.51 In this case, the person who promises to perform an undertaking is of such

state of mind that the duty is created by positive justification, by the volition of the actor. The

promise the actor makes in the voluntary assumption of the undertaking is what creates the bond

that obligates the promisor to the performance of the act. Mead believes, however, that the

voluntariness of the undertaking as a source of duty should transcend the mere contractual

performance of an undertaking that a promise entails. The undertaking should be seen from the

point of view as the ‘best position’ perspective, that the promisor undertook the commitment

because he or she was in the best position to perform the act.

The ‘Best Position’ argument is grounded on three reasons.52 First reason is that the

promisor will most likely be the person who is in the best position to know the peril, for which a

person will be in need of assistance. He may understand the ways a person may be vulnerable to

such dangers, in a manner other people may not be aware of. Second is that the promisor may in

50 Mead, op cit., pp. 167-17151 Raz, J. ‘Promises in Morality and Law’, (1982) 95 Harvard Law Review 916, p. 930.52 Mead, op cit.

34

most likelihood be the most capable person to perform the act, or at least he or she would be

better able than a third party to competently discharge the duty. This proceeds from the normal

presumption that when a person volunteers to do a particular thing, he feels himself equipped

with the necessary skills and thus feels capable to perform the act. Thirdly, third persons who

knew about the undertaking would think that they were not particularly helpful in its

performance, and in many cases would justifiably feel that they may simply be in the way and

most likely constitute a hindrance in the effective completion of the task. These three reasons

enhance the undertaking as more than mere compliance of a contractual obligation.

4.2 Second type: voluntary performance of an act that incurs a duty.

The second type of sources of duty is the voluntary performance of an act with the actor’s

knowledge that by doing so, the actor incurs a duty. For instance, the act of Stone & Dobinson

in allowing her (Stone’s) ill sister to live with them implies that they are assuming a duty to take

care of the sister and to look after her welfare and needs. Some observers feel that there is an

implicit assumption of a duty is insufficient, and that there must be a positive reason for the actor

to be burdened with the duty, and a more objective and positive act by which the actor may

convey his/her acceptance of the duty. The principal argument for this is to avoid a incurrence of

a general liability for omission of duties that may have been imposed upon the actor without his

knowledge, and for which the subsequent liability would be unjust for lack of notice. The

concern is that the actor is not put in jeopardy without good reason.

On the other hand, the ‘best position’ argument that applies in the case of voluntary

undertakings may be said to be relevant in the case of voluntary performance that incurs a duty.

That is, when the actor performs a duty that presumes the incurrence of a duty means that (a) the

35

actor is the person most aware that his assistance is necessary; (b) he or she is the most capable

to perform the duty; and (b) his presence will most probably discourage others from intervening

because of the expectation that the actor is capable of acting by himself without help.53

4.3 Third type: justification without voluntariness

The third and last type of the source of duty involves some justification which is not

linked to the voluntariness of the undertaking. This pertains to instances when a person has not

volunteered to perform a duty, nor did he perform any act that incurs such duty for him, and yet

is considered to have a duty to act. This is the case that invites the greatest controversy among

legal theorists, because it is the closest to a general liability and is open to the influence of

arbitrary bases for attributing duty. In this justification, Mead cites the essay ‘Nécessité Oblige’

by Tony Honoré, where opinions are expressed that differ from that of others that a duty or

obligation arises form the moral requirement that proceeds from the performance of a voluntary

act.54 According to Honoré, obligations can arise in ways other than through a voluntary act,

such as the obligation to compensate for accidental harm for which one is at least partly

responsible; obligations to compensate the aggrieved parties for wrongs done by family or

associates; obligations to restore property transferred against one’s will, and obligations of

restitution in instances of non-voluntary enrichment. An obligation may also arise upon an

individual who, despite his unwillingness, is bound by duty to perform if he is the best qualified

person to perform the task, and there is a necessity for the performance of such task. The duty

may be even seen in the nature of the act of a good Samaritan.

53 Mead, op cit., p. 16954 Ibid., p. 170, citing ‘Nécessité Oblige’ by Tony Honoré, in Making Law Blind, 127 (Oxford, Clarendon Press,

1987)

36

This special type of duty is best understood in the case where individuals who are bound

by familial relationships owe each other a duty of care even without any voluntary undertaking

or act. The duties are also grounded in necessity. Most important of these relationships is that

duty of care of a parent for his or her children, though the latter may be unwanted. This duty is

created by the dependency of the child upon his or her parent for the provision of his or her

needs. It is evident that such duties create a real burden upon the actor on whom the obligation is

imposed because as with the case of children, there is normally, from the pragmatic view at least,

no objective or material benefit that accrues to the parent for the duty of providing for the child.

These are the bonds that emanate from purely social relationships not susceptible of the usual

considerations that govern contractual relationships. The obligation to alleviate the harm or risk

posed by the unintentional creation of danger is another such type of duty.

The case of relationships as the basis of the incurrence of obligation could not be made to

rely entirely on the ‘best position’ argument that applies in the first two types of duties. Where a

person voluntarily undertakes a duty or performs an act that knowingly incurs for him that duty,

the person is aware that he is in the best position to perform the act and discharge the duty, and

takes it upon himself to do so. In the case of relationships, the actor often is not aware that he

has incurred or is incurring the duty. In fact, the duty is imposed at times even against the wishes

of the actor. It is for this reason that many legal experts argue that duties of this type should not

be imputed upon the individual, because it has the effect of penalising him for an omission that

he did not know he was obligated to do in the first place.

However, Honoré makes much sense when he states that these cases only arise because

there is a necessity, that if the obligation were not imposed then the situation will result in more

37

dire consequences to people who are among the most vulnerable in society. As Honoré

articulated it, ‘in the last resort, necessity makes law: nécessité oblige’.55

55 Honoré, op cit., in Mead, p. 171.

38

5. SPECIAL ISSUES IN OMISSIONS

Aside from the general issues already discussed, special issues have been raised by a

number of academic studies on the recent developments in the debate on omission as a source of

criminal liability.

5.1 Corporate manslaughter by omission:

Omissions by police officers due to failure to perform duty

On 6 April 2008, the Corporate Manslaughter and Corporate Homicide Act 2007

(CMCHA) took effect. Pursuant to this law, a relevant organisation may be found guilty of

corporate manslaughter where the acts of senior management was an important factor in the

failure of the organisation to perform its duty, leading to the death of an individual. For the

purpose of this law, a ‘relevant organisation” is defined as: a corporation; a department or similar

body listed in Sched.1 of the CMCHA; a police force; and a partnership or trade union or

employers’ association that is an employer.56 An organisation qualified as relevant and which

may be found guilty of corporate manslaughter shall be subject to a criminal law sanction in the

form of an unlimited fine, which will be seldom less than ₤100,000, but may increase by

hundreds of thousands of pounds or even more.57

Aside from the fine, the organisation convicted of the crime of corporate manslaughter

may be imposed additional penalty in the form of a remedial order. This is a judicial order that is

made upon application of the prosecution specifying the terms in the application. The court shall

56 CMCHA, s. 1(2)57 Sentencing Guidelines, published by the Sentencing Guidelines Council on 9 February 2010. Accessed 5Dec

2010 from http://www.sentencing-guidelines.gov.uk.

39

then specify the terms as it sees fit, based on the representations by the prosecution and the

evidence presented by both sides. The remedial order issued by the court shall specify steps to

remedy those factors which caused the breach of duty that led to the death. In the remedial order

shall be stated: the relevant breach, as mentioned in CMCHA, s. 1(1); any matter the court

considers to result from the relevant breach and which appears to have caused the death; and any

deficiency in the company’s policies, systems or practices regarding health and safety, which the

relevant breach appears to indicate. The convicted organisation should then take the steps

specified in the order to remedy the causes of the breach of duty of which it had been guilty.

Furthermore, the court may, at its discretion, order the convicted organisation to publicize the

fact of its conviction, including the details of the offence, the amount of fine imposed, and the

terms of the remedial order against the organisation.58

Among the organisations relevant for the purposes of this law, there is special interest in

the case of the police force where omission of the requisite due care caused the death of an

individual. While not all deaths related to police activity are controversial, there are a few that

tend to be more controversial, and more frequently encountered, than others. Road traffic

fatalities are an example, where the road mishap was the result of a police pursuit of persons. It

often happens that the driver of the vehicle pursued loses control of his vehicle and is

consequently killed, or where other persons are killed because of the high-speed pursuit. In this

case, police neglect may come in the form of failure to turn on the siren or the blue warning

light, as a consequence of which a pedestrian is killed. Another example would be police

response to public order situations, such as crowd control during high-profile sports tournaments.

A third type of situation involves fatal shootings by policemen, and lastly are deaths of persons

58 CMCHA, s. 10

40

held in police custody.59 Since these last two types are the more common types of criminal

liability due to omission or neglect of duty, they shall be treated in greater detail.

5.1.1 Fatal shootings attributable to negligence.

An example of a fatal shooting due to police negligence is that related to the investigation

of the failed suicide bombings in London in July 2005. The police were conducting surveillance

operations on the residence of suspected bomber Hussain Osman, when they followed a man

whom they thought to be Osman, but was in reality Jean Charles de Menezes, a Brazilian legally

residing in London and who had no connections to the bombings. At the Stockwell tube station,

believing their suspect to carry explosives, the police units pinned him down and repeatedly shot

him in the head. Despite the grave error made in identification, the Crown Prosecution Service

ruled out murder or manslaughter charges against individual officers who participated in the

shooting, due to insufficient evidence.60 However, there had been numerous incidences of neglect

that had been noted in the conduct of the operations, regarding police communication, operations

and actions taken. Because of this, the Metropolitan Police force was found guilty of breach of

sections 3 and 33 of the Health and Safety at Work Act 1974,61 “for failing to provide for the

health, safety and welfare of Jean harles de Menezes on 22 July 2005…I concluded that while a

number of individuals had made errors in planning and communication, and the cumulative

result was the tragic death of Mr. De Menezes, no individual had been culpable to the degree

59 Griffin, Stephen & Moran, Jon ‘Accountability for Deaths Attributable to the Gross Negligent Act or Omission of a Police Force: The Impact of the Corporate Manslaughter and Corporate Homicide Act 2007.’ [Aug. 2010] 74(4) Journal of Criminal Law 358-381, at 363.

60 CPS Statement: Charging decision on the fatal shooting of Jean Charles de Meneses. 17/07/2006. Accessed 10 Dec 2010 from http://www.cps.gov.uk/news/press_releases/146_06/

61 On the duties of care owed to non-employees.

41

necessary for a criminal offense.”62 The penalty imposed on the police force was a fine of

₤175,000 with ₤385,000 legal costs.

5.1.2 Custodial deaths attributable to negligence.

Ordinarily, cases where people die in police custody are surrounded with controversy

because when a person is detained under process of law, he is usually presumed to be safe. The

death of an individual, therefore, comes with the suspicion of the excessive and improper use of

restraint or control, or poor monitoring of prisoners who are intoxicated or mentally disturbed.63

One case in 1998, that of the death of Christopher Alder, was particularly controversial because

the findings of the Independent Police Complaints Commission’s report attributed “unwitting

racism” to the officers involved. Alder was 37, black, and died face down in a pool of blood in a

police custody suite, while the four accused stood chatting nearby. The four officers were found

to be guilty of the “most serious neglect of duty.”64

5.1.3 The common law application vs CMCHA

The common law position which was implemented prior to the CMCHA held a police

force outside the scope of the common law identification principle because it did not have a

corporate status. The identification principles hold that a corporate body is personified by its

directing mind65; ordinarily, however, the directing mind is embodied by its director/s. Thus, in

the case of involuntary manslaughter, it becomes necessary to link the act of the individual

employee through the chain of command to the directing mind. The problem is that management

62 CPS Statement, op cit.63 Griffin & Moran, op cit., p. 36464 BBC News, ‘Police condemned over man’s death’, 27 March 2006. Accessed 10 Dec 2010 from

http://news.bbc.co.uk/2/hi/uk_news/england/humber/4848238.stm65 Lennard’s Carrying Co., Ltd. v Asiatic Petroleum Co., Ltd. [1915] AC 705.

42

structures are so complicated and orders disseminated so indirect that often, it is difficult to fix

the criminal liability to the corporate director due to misinterpretation and abuse by lower-

ranking officers.66 Therefore, under the common law, the prosecution of a police force for

manslaughter often fails to prosper, resulting in an injustice to the relatives of the fatality by

police neglect.

The creation and implementation of the CMCHA is expected to resolve these weaknesses

in the common law application for the prosecution of manslaughter to a police force. It is also

thought to constitute a measure of compliance with international law. It must be recalled that

Article 2 of the European Convention on Human Rights (ECHR) obligates Member States to

secure the right of persons to life,67 through the establishment of the necessary criminal

legislation to preclude or at least deter the violation of human rights and the commission of

offences against individuals. The ECHR also mandates that the provisions be supported by an

effective system of enforcement – effective meaning that it is capable of producing the desired

effect, not normally open to technicalities that would impede justice in majority of the cases.68

However, under closer study, it is apparent that what the CMCHA puts in place is a system of

proper examination, and falls short of the fulfilment of its obligation under Article 2, to establish

a system of “appropriate enforcement,” this being only partially developed. Therefore the

CMCHA is not sufficient to meet the requirements of Article 2 of the ECHR.69

66 Tesco Supermarket Ltd. v Nattrass [1972] AC 153, by analogy67 Bell, C & Keenan, J, ‘Lost on the Way Home? The Right to Life in Northern Ireland’ (2005) 32 Journal of Law

and Society, at 68.68 Joint Committee on Human Rights, Deaths in Custody, 3rd Report 2000-2005, vol. 1, HL 15-1/H 137-1, at 13-15.69 Griffin & Moran, op cit., at 361

43

5.2 Liability for omission in international criminal law

Duttwiler70 explored the application of omission as a source of criminal liability in

international law. This is a novel approach, since until the Nuremberg trials of post-World War

II, individuals had not been deemed proper subjects of international law, only states and

international organisations. The omission to do a deed is essentially a personal liability,

pertaining to the actus reus and mens rea of an individual rather than a state. After World War

II, however, there has been increasing development towards the regulation of acts of individuals

in the international legal system. At the same time, human rights law and crimes against

humanity have taken on a more robust application in international law, creating a venue for

greater participation for individuals as either those seeking redress or those being brought to

justice, through the International Court of Justice.

Because of these developments, there has been increasing reliance on a particular

principle as a source of liability for omission, which is the doctrine of superior responsibility.

This concept stresses that a superior is responsible for the actions of his subordinates, such as in

the case of military troops in a war or armed conflict. The superior is held to be responsible in

those instances where he knew or should have known that crimes are being committed by

persons under his de facto control, and despite this did not intervene in their actions, either to

punish or prevent further continuation of these acts.

Clearly, superior responsibility is an important, if not the most common, doctrine relied

upon as a source of duty to act, and the omission of which persons may be held criminally liable

under international criminal law. However, the doctrine has already been thoroughly developed

and presents little controversy, that Duttwiler excluded its application in his study. What needed

70 Duttwiler, Michael.“Liability for Omission in International Criminal Law.” (Jan 2006), Vol. 6 Issue 1, p1-61; DOI: 10.1163/157181206777066745

44

to be determined was the existence of a general norm of liability for omission of duties that may

exist in international criminal law.

The study arrived at the conclusion that, while international law does admit of the

application of omissions as a source of liability, the breadth, scope and incidences of such are not

very substantial. After a wide scan of treaty provisions and agreements, the study arrived at only

one such treaty provisions of more or less relative significance but of limited scope. Other than

this, it determined that there is a general principle of law in art. 38(1)(c) ICJSt, which regards the

human conduct of omission as action, presuming that a legal duty to act exists. While the legal

principle exists in theory and statute, there is difficulty in the application because the

determination of a legal duty to act must be analysed through a combined construction of

international and domestic law.

Under the Rome Statute of the ICC, despite the absence of case law on the matter, it is

generally held that there are no limitations to the application of liability for omission should the

proper case for it emerge. It is believed that there will be no difficulty for the ICC to apply the

general treaty provision on omission, with regard to perpetrators from any jurisdiction, whether

or not that particular jurisdiction recognises the principle of commission by omission. Largely,

however, the application, should it materialise, will be largely from the basis of an ethical or

moral point of view, because it is commonly perceived and acknowledged that the intentional

failure to prevent harm is just as worthy of condemnation as the active form of criminal

behaviour, which forms the theoretical foundation for holding a perpetrator liable for omission.

A general principle of law that converts the ethical and moral principle into a provision (or

provisions) of international law is seen to greatly enhance the stature and development of

international criminal law, and is expected to be welcomed by the Member States.

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6. ANALYSIS

6.1 The central debate on attaching liabilities to omissions

The debate on the nature of omissions and the propriety of attaching criminal culpability

to them has become so profound that it has wandered into the area of philosophical legal theory.

One of the more perceptive and insightful comments came from Andrew Ashworth.71 In

considering criminal law reform, the legislature is faced with the dilemma of the scope of duties

for which an individual may be held liable in failing to perform them. Ashworth explains two

conflicting schools of thought. One is the ‘conventional view’ and the other is the ‘social

responsibility view’. Far from being polar opposites, these views overlap and only differ as to

their scope and extent. They are founded, however, on different theoretical premises. The

‘conventional view’ holds forth the position that criminal law should avoid as much as possible

to impose liability for omissions, save for the cases where the duty to act is most apparent and

the consequences for omission the most severe. Admittedly, there are acts, and omissions, that

society would recommend to be regulated by law and punished for culpability. There is likewise

general acceptance of general duties that are expected of citizens and members of society, such

as the payment of the correct amount of taxes and tariffs, which duties should be strengthened by

offences for omission. While the duties towards the state, however, are clearly defined (as was

earlier mentioned in omissions created by statute), the duties to other people are not as clear-cut

and obvious. Supporters of the conventional view are described by Ashworth as being reluctant

to assume responsibility of duty to those individuals other than have been explicitly and

voluntarily assumed. The conventional view sees as unfair that people who have not agreed to

be responsibility for another are forced to assume a duty towards such persons, against their will

71 Ashworth, Andrew. ‘The Scope of Criminal Liability for Omissions’ (1989) 105 LQR 424

46

and at times without their knowledge, and are in danger of being punished if they omit to

perform this duty. At times, because the duty itself is so vague and seemingly arbitrary, there is

disagreement as to what constitutes omission for which liability is imposed. Seldom are such

issues a matter of black and white; oftentimes they entail the weighing of circumstances and

consequences, and in the end the fixing of culpability would often be based on social values than

legal requisites.

For the ‘social responsibility view’ attention is focused on the co-operative elements that

are encountered in society and are made incumbent upon individuals by virtue of the necessity to

contribute to the collective welfare. The idea is generally acceptable to most people that there

will be circumstances that would call for the obligation to help others, as in the case of disasters

and natural calamities, accidents and other unforeseen events where the lives of people are

endangered. However, it is a different matter to say that the failure to positively act on these

obligations would incur for the individual some punishment as in the commission of a crime.

There is a moral distinction understandable to the common individual that it is one thing to

perform an act that leads to harmful consequences, and not performing an act which results in the

same harmful consequences. Proponents of the social responsibility view, however, are open to

the idea that at some level, and where the severity of the situation may call for it, there may be a

need to impose criminal liability upon those who omit the performance of the duty to act, even

where voluntary consent to do so has not been construed.

Fundamentally, the difference between the two views is that conventionalists stress the

minimalist condition that liability should be imposed on omissions of voluntarily assumed duties,

while social responsibility advocates do not adhere to any limitation except that conveyed by

reason and the circumstances. For the conventional view, the coercive power of criminal law

47

and punishment requires that the individual must have been given the benefit of notice that such

a performance is required of him as an obligation, and that failure to perform this obligation will

be meted a corresponding penalty. Under this theory, omissions are viewed as the exception

rather than the rule, and there is a truly compelling need to be met such as the support of the state

through taxes and preservation of its independence through compulsory disclosure of the

knowledge of treacherous acts. Social responsibility, while not inconsistent with these views,

would tend to tolerate omissions as more than exceptions, but as part and parcel of the legitimate

exercise of coercive power of the state upon the individual.

The conventional view is strongly supported by the arguments of Williams72, who

adheres to the position that individual rights should be upheld and the intrusiveness of the law

limited. The first assertion, according to Williams, is that society’s most urgent task is the

repression of active wrongdoing, with stress on ‘active’. The criminal process is not the

instrument which society may use to encourage the slow to action or reclusive to a more active

social role, and certainly not to the extent that failure to perform is punished. The second is that

condemnation, and tolerance, for wrongful action is different from that of wrongful inaction.

This is indicative of a moral distinction we subconsciously make between a positive wrongful

deed and a passive wrongful omission, where both have the same eventual result, the positive act

being deemed the more condemnable of the two. To illustrate, it is usually more morally

despicable for a son to take a dagger and stab his father to death without provocation, than for a

son to neglect to feed and care for his father until the latter eventually expires. Williams uses

this as an argument that omissions should not be meted the same punishment (or even punished

at all in the case of non-voluntary duties) as that imposed upon positive criminal acts.73 Williams

72 Williams, Glanville. ‘Criminal Omissions – The Conventional View’ (1991) 107 LQR 8673 Ibid, p. 87

48

qualifies, however, and differentiates those omissions that clearly run contrary to the public

interest, which are within the purview of the state to punish.74

While the theory about omissions appears sufficiently clarified, in practice there are cases

which by their nature are still too difficult to call. In the case of the provision (or omission) of

medical treatment where the patient or his guardian does not give his consent, it may be

necessary for the doctor to make a judgment call where a medical emergency threatens the

patient’s life. The time is often too short for the doctor to appeal to the courts, thus there is a

need to decide whether or not to act without consent. This is with reference to R v Senior where

the refusal of the child’s parents, both Jehovah’s Witnesses, to consent to a vital blood

transfusion for their child and therefore leading to his death, was construed to be the doctor’s

omission for which he and the parents were prosecuted for manslaughter.75

6.2 The Act-Omission Paradox

When considering the difference between acts and omissions as sources of liabilities, it

becomes necessary to more closely analyse the effects of a positive act and an omission. It is on

the basis of this distinction that culpability that would justify the imposition of criminal penalty

may be assessed in the case of omissions.

The act-omission doctrine implies that a positive act is always culpable, while an

omission may not be, where the results of both are the same. As illustration, it is never

acceptable for one man to kill another without provocation, but where a person stands back and

allows another to die, then that may be permissible. However, if one were to look at the

omission as act, then the act of standing by and watching a person get killed is tantamount to

74 Williams, op cit.75 R v Senior [1899] 1 QB 283

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permitting the death of this victim. The person who omits to act to prevent a killing allows the

offence to take place; he does not kill the victim, but allows the victim to be killed, and in doing

so condones the killing. This is not so far fetched where a person may initiate an action that,

without directly causing a death, may eventually lead to a death. In such instances a paradox

exists, that an offence is at once permissible and at the same time impermissible.76

This type of reasoning is the crux of the deontological doctrine AOD, or act-omission

doctrine. Its cornerstone is deontological ethics, from the Greek root word deon, meaning

‘obligation’ or ‘duty,’ and logos meaning ‘study’. It is an approach to the study of ethics which

views the morality of an act based on its relationship to duty.

This train of thought posits that ‘letting’ an offence take its course when one is capable of

preventing or intervening is tantamount to forsaking one’s duty to abide by what is ethical or

right. In this sense, the duty referred to is the duty not to let an immoral act happen, not the legal

sources of duty discussed earlier. Deontology closely relates the ethic of the act with the duty to

abide by what is right or permissible. Therefore, an act that is impermissible but allowed to

happen makes the act of allowing itself impermissible, because it is a betrayal of the duty to

forbid an impermissible act.

This philosophical reasoning goes into the core of the rightness or wrongness of an act

(omission), and to an extent provides a perspective from which to view the culpability that may

be attached to an omission. This school of thought views omissions as acts, that is, the act of

allowing something to happen. If the act allowed to happen should not be permitted, then the

omission constitutes a culpable act. The qualifications of this type of reasoning are obvious,

though. Firstly, the person is aware that an impermissible act is about to happen. Second, he or

76 Persson, Ingmar. Two Act-Omission Paradoxes Proceedings of the Aristotelian Society. Apr 2004, Vol. 104 Issue 2, p147-162,

50

she is in a position to intervene in such a way as to possibly thwart or frustrate the act. Finally, it

is the omission to intervene that allows the act to succeed. The presence of all of these three

conditions shall allow for the omission to be seen as a culpable act, for which the individual may

be held accountable or liable. The duty exists not by virtue of statute, contract, volition or

relation, but is assumed as a duty of the moral person who abides simply by what is right. This is

the only possible solution to avoid the act-omission paradox.

6.3 Summary

The main, ongoing debate is whether or not it is appropriate for criminal liability to attach

to omissions, and assuming it is, under which circumstances it should be done. The general

concept is that omission is the absence of action, and since the absence of action could not give

rise to harm that is not already inevitable, then the person who omits to intervene should not be

penalized. The only instance, therefore, where such liability should attach is in the case of

statutory duties the omission of which is clearly precluded by law. In these instances, which are

in the nature of mala prohibita, compliance is mandated and the penalty is specified. These

involve no controversial issues, it requires only straightforward compliance to avoid the

consequences.

In other types of omissions, it has been stated that it is necessary to identify the duty of

care that is reasonably expected to be fulfilled, that the omission of the act that complies with the

duty is not justified, and that the omission resulted in harm done to another. That there is a harm

done and that the omission took place are matters of fact and may not be disputed. The point of

controversy lies in the nature and source of the duty, and if the omission of that duty may be

penalised according to the tenets of criminal law theory.

51

The study outlined the sources of duties, and the typology of these sources. The duties

and their categories are presented in the following table:

Source of duty Type of dutyVoluntary assumption of a duty Duty to care for another by volition

Contractual, public or official dutiesVoluntary performance of an act that incurs a duty

Duty to avert a danger created by defendant.Duty to provide medical treatment (and exempting circumstances)

Justification without voluntariness Duty arising from special relationships (e.g. to children and wards)

The classification into typology is based on the most common types of such duties, and

do not constitute a hard and fast categorisation. The specific type of duty depends upon the

particular circumstances under which such were incurred.

Where a duty has been voluntarily assumed through an undertaking or by performance of

an act that necessarily incurs a duty, the individual is generally assumed to be aware of the

implications of his or her voluntary assumption of the duty. Therefore, the importance and

necessity of the performance of the act is known to him or her, and the execution of the act is

incumbent upon him/her. The individual is also generally aware that if he or she omits to

perform the duty voluntarily assumed, the resultant harm will be attributable to the failure to

perform the duty.

An exception to these assumptions is when the duty may be construed to have expired or

been discharged. Examples of this abound in instances where medical treatment may be refused

by the patient, which in most cases discharges the duty. There are exceptions to this exception,

however, where the court overrides the patient’s refusal or that of his parents/guardians. The

reverse is also true, where the patient or his parents are insistent upon the treatment but which the

doctors feel is not in the patient’s best interest, in which case the court may rule on the matter.

52

Finally, there is the highly controversial situation where an emergency exists and the patient’s

death is imminent of treatment is delayed. The controversy arises where the doctor, because of

the lack of time, makes a judgment call, and either applies treatment or withholds it, and the

patient dies or is harmed further, in which case the doctor faces the jeopardy of manslaughter

charges.

The usual controversies arise where the source of the duty is based on some other

justification without the volition of the individual. In such cases, the individual did not

voluntarily assume the duty, and may not even be aware that he is charged with it, since the duty

is presumed on the basis of the relationship of the person and the individual in need of assistance.

This is where the moral dilemma arises, as to whether an individual who did not wilfully accept

an obligation not mandated by law, and may not even be aware of it, may be held criminally

liable by a failure to perform said duty.

The dilemma may be addressed on several bases, although for expediency this study

employed the minimalist-conventional view vis-à-vis the social responsibility perspective. The

first leans more towards limiting the liability attached to omissions to those duties voluntarily

assumed, but being detached from those duties without voluntariness. The second allows for

liability to attach to all types of omissions, but qualified as to the harm caused, the evident nature

of the duty and the severity of the consequence of omission, in the case where the duty was

justified without voluntariness. Finally, the act-omission, deontological doctrine sees liability

attaching to omissions because omissions are viewed as acts of dereliction of duty, provided the

person was aware of his duty, capable of intervening, and aware that his failure to intervene

would result in harm.

53

7. CONCLUSION

Based on the analysis conducted on the problem sought to be resolved, this study has

arrived at the following paradigm by which to view the nature of omissions, their qualification

on the basis of the type of duty omitted, and the criminal liability that attaches. That liability

may attach to an omission in the absolute sense is a foregone conclusion, because in the case of

statutory duties that have been omitted, the corresponding penal provisions are clear and the

person who has omitted the duty may clearly and ethically be meted the corresponding penalty.

Omission of duties imposed by statutes

Omission of contractual, public or official duties

Omission of duties by voluntary undertaking

Omission of duties necessarily incurred by voluntary act

Omission of duties with justification other than voluntariness

Towards decreasing criminal liability

Min

Max

Diagram showing relationship between duty omitted and degree of criminal liability

The representation of the various punishable omissions are represented in the form of a

triangle, indicative of their relative frequency as they are expected to occur in legal actions.

They greatest number of omissions which should be punishable are those that are statutory in

nature, because these are lawful obligations imposed with the knowledge of the individuals.

54

Following should be those duties that are incurred due to contractual, public or official

duties. While these may be considered as voluntary assumptions of duty as classified in the

preceding table, the fact that they are supported by a professional or official structure make them

even more mandatory than the mere voluntary assumption of an ordinary duty, and therefore

more appropriately the subject of regulation which may result in criminal liability. As the level

of voluntariness diminishes moving upward in the triangle, the frequency of occurrences should

also be gradually lessening.

Finally, the fewest incidences of omissions which may be attached with criminal liability

should pertain to those omissions of duties the justification of which is without voluntariness.

The reason for this is that the duties addressed by these omissions are generally without the

consent or volition of the persons burdened by them, and are sometimes without their

knowledge. However, this does not mean that liability should not attach, particularly in those

cases where the recklessness with which such omissions are made are so blatant and offensive in

the humanitarian sense that punishment is not only appropriate but inescapable. These are with

particular application to parents of their children. Generally, where the severity of the omission

is greater and the beneficiaries of the protection of the duty are more vulnerable, the more

vigilant the state must be as steward of its people, so that the welfare of the weakest and least

powerful may be protected.

It must be kept in mind that the diagram shows the degree of liability that should attach

based on the typology of the duty on which the omission is based. This does not apply to the

factual antecedents of each case, that is, to the type and degree of harm, the vulnerability of the

victims, or the recklessness of the manner with which the duty had been abandoned. These

should further qualify the severity of the punishment that the court should apply to the case.

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The typology of duties presented here is based upon personal liability for omissions of

personal duties owed to other individuals. However, as may be seen in the special issues

presented in the paper, there is a need for these categories to expand to take into account the

corporate liabilities that would attach to corporate manslaughter by omission, a new development

in the law, and in future developments of statutory omissions that may be promulgated in

multilateral agreements in international law. Presently, directions in international law are too

early and tentative as far as omissions as sources of liability are concerned except in the case of

superior responsibility, although resort to this appears to be a distinct possibility in the future

56

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