An omission

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An omission is where an individual fails to act when they had a duty to do so. By failing to act, they are breaching their duty, which constitutes as the actus reus for a crime. The basic rule for an omission was outlined by Stephen J, a 19th Century Judge – ‘A sees B drowning and is able to save him by holding out his hand. A abstains from doing so in order that B may be drowned. A has committed no offence. ’ This states that an omission cannot make someone guilty of an offence. However, there are some exceptions to this rule. In current law, there are 6 duties that make an individual legally responsible and liable for any failure to act.

The first duty is a statutory duty, a duty that has been defined in a statute/piece of legislation. An example of this duty is the Road Traffic Act 1988, where an individual is liable for failing to stop at or report a traffic accident. The second duty is a contractual duty, a duty that has been outlined in a contract an individual has signed. An example of this duty is the case of Pittwood, where a railway-crossing keeper omitted to shut the gates, resulting in a person crossing and being hit by the oncoming train and the defendant was convicted of manslaughter.

The third duty is a duty through relationship, where a person is responsible for the care of another through their family relationship with that person. An example of this would be the case of Gibbins and Proctor where a father deliberately starved his 7 year old daughter to death, and both he and his partner were convicted of murder. The fourth duty is a duty that has been taken on voluntarily. An example of this would be the case of Stone and Dobinson, where Stone and Dobinson took Stone’s eccentric sister under their care, and the sister died from malnutrition. Both defendants were liable for manslaughter.

The fifth duty is a duty through one’s official position. An example of this would be the case of Dytham, where a police officer saw a fight outside a nightclub, and decided to go off duty, resulting in him being convicted of misconduct in a public office. The final duty is a duty which arises because the defendant has set in motion a chain of events. An example of this would be the case of Miller, where the defendant fell asleep with a cigarette, and set his mattress alight. He then went into the adjacent room and slept in there whilst the fire continued. He was convicted of arson.

There are some exceptions to these duties, however, as doctors are not liable if they decide to discontinue treating patients in their own interest. They are only liable in cases of incompetence, as shown in the case of Adomako, where the defendant, an anaesthetist, failed to realise that one of the tubes supplying oxygen to the patient was disconnected. This resulted in the patient having a heart attack and dying six months later. It was decided that a competent doctor would have noticed the disconnection within 15 seconds, which the defendant did not, therefore, he was guilty of gross negligence manslaughter.

This exemption of doctors from the law of omissions is to prevent doctors from becoming afraid of criminal liability when performing an operation, as if doctors were liable, then it is unlikely a doctor would be willing to perform the operation in fear of making a mistake and being criminally liable. When discussing whether the criminal law on omissions encourages people to do ‘the right thing’, the problems/criticisms of the law on omissions should also be examined. One of the biggest concerns is that fact that the current law on omissions does not have wide enough liability.

This would imply that the law does not currently place responsibility on enough individuals, and thus doesn’t encourage citizens to do ‘the right thing’. However, this criticism is debatable, as the current law ensures that any individual who is contractually or legally obliged to perform a task is liable for failing to do so. The same can be said for individuals under other duties, such as the duty through relationship. Therefore, it could be argued that criminal liability is wide enough to ensure that anyone responsible for failing to perform a task is guilty of a crime.

The case of Lowe, however, may prove this point incorrect. In Lowe, the defendant was the father of a nine year old who became ill and died. The defendant said he told the mother of the child to take the child to a doctor, but had done nothing else. Both the father and mother were of low intelligence. The Court of Appeal ruled that there was no unlawful act, and thus their conviction of constructive manslaughter was quashed. Essentially, a child had died and neither the mother nor the father were liable for the death.

Clearly, criminal liability was not wide enough at the time to ensure that people who are given a responsibility are liable. However, this case was in 1973 and the courts in modern times may not give a similar verdict. Another problem with the law on omissions is that, in some cases, many people can be liable. Whilst this may not be justifiable, it certainly shows that criminal liability is wide enough to ensure that people responsible are held liable. An example of this would be the case of Evans, where the defendant supplied her half-sister with heroin, who later overdosed and died.

The attempts by the defendant and the mother of the defendant and victim were not enough to be considered as fulfilling their duties, as they merely put the victim to bed and hoped she would get better. The defendant appealed, arguing that she did not have a duty of care. However, the Court of Appeal upheld that she had set up a state of affairs where she did owe a duty of care to the victim, as she ought reasonable to have known she was threatening the life of her half-sister.

As this case was in 2009, clearly the current law is wide enough to make multiple people liable for the same crime when they each have different duties, showing how the current law on omissions does encourage citizens to do ‘the right thing’. If the phrase ‘the right thing’ were to be interpreted in a slightly different way, then the case of Airedale NHS Trust v Bland (1993) is very relevant. In this case, Bland was a young gentleman who had been crushed at the Hillsborough disaster, and left in a vegetative state for 3 years.

The doctors asked for a court order to stop feeding him and the court ruled that he could be stopped being fed even though he would die. Whether this was ‘the right thing’ is entirely a matter of opinion and pro-life activists may view this very dimly, however, this case shows the law is capable of excluding individuals from being liable in certain situations, thus encouraging people to do ‘the right thing’. This is further reinforced by the fact that doctors are also excluded from criminal liability unless they are shown to have lacked competence or have fallen under the standard for competence, as shown in the case of Adomako.

The criminal law on omissions can also be interpreted as not wide enough. For example, countries such as France have a ‘Good Samaritan Law’. This is where individuals are responsible for helping out other people in an ‘emergency situation’, even though they may be a complete stranger. Currently, UK Law does not enforce this law. For this reason, it could be argued that the current criminal law on omissions is not wide enough, as people should have to help other people out in emergency situations, and never will be until this law is implemented.

However, there are some problems with this law. The law can be abused in that someone can pretend to be injured, forcing other people to come to his or her aid, and then the person pretending to be injured could rob, assault or even murder the person helping him or her. There is also the risk that someone attempting to aid an injured individual could lack competence and would cause more injury instead of helping, but they would still be obliged to help due to the law.

A problem also lies within the wording of ‘an emergency situation’, as this can be used very vaguely and inappropriately. However, in the past the law has shown that words can be given definitions and those definitions can be used effectively in court through statutory interpretation, so this may not be such a large issue. Another problem is that there may be two people requiring immediate aid, but only one person is available to help and only one person can be saved from death. In this instance, it would be impossible to decide which one requires the most attention at the time.

Lastly, people coming to help may also be encouraged by the law or peers to put themselves at risk to save an individual, and thus, if they were injured, the Good Samaritan Law would only be causing more injury than helping people. However, it could only be required that the individual helping has to take certain steps to aid the injured person, instead of rushing in to help them. This can simply involve contacting the emergency services. Finally, there is the question of whether the law needs to encourage people to do ‘the right thing’.

There have been thousands of instances, and likely more, where individuals have helped others purely out of their own free will. Because of this, it could be argued that the law does not need to encourage citizens to do ‘the right thing’, as it is almost common sense to aid an injured person. A Good Samaritan law would only enforce a socialist ideal upon the entire population, which is certainly unfair, as it assumes that society is a collective, who are each responsible for the livelihoods of each other.

The enactment of this law could very well be the first step in creating a society where individuals are controlled and legally responsible to perform certain actions at the will of the Government, and have no free will. To conclude, it is obvious that the current law on omissions is certainly capable of encouraging citizens to do ‘the right thing’ and certainly does so. The case of Airedale NHS Trust v Bland also shows how this can be interpreted and applied differently.

The current law places responsibility on all who are even slightly responsible to perform a duty and punishes them for not fulfilling their duty, encouraging them to do ‘the right thing’ and perform their duty. It could be argued that the law does not encourage citizens to do ‘the right thing’, but only if you interpret that phrase so as to mean helping anyone and everyone, which would be quite radical. However, this would be nigh on impossible to implement and apply, and could actually encourage citizens to do the incorrect thing and put themselves at risk of harm, both through their own actions and through others.

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