Omissions

 

Most crimes involve the doing of unlawful act and each crime has its own actus reus (guilty act), laid down by the statute or by the judges. For example, assault requires the defendant to cause the victim to fear harm. Theft requires appropriates property belonging to another. Murder requires unlawful killing of human being. However, some crimes maybe brought about as a result of the defendants omission.

In English law, a person will not be criminally liable because he failed to act. Stephen L J made this position clear back in the nineteenth century, when he stated:

“It is not a crime to cause death or bodily injury, even intentionally, by any omission.”

He described the situation where a person sees another man drowning but does nothing to help him. Probably if he does something to help him, a man’s life would be saved. Under English law, the person failing to act has committed no crime.

However, there are limited exceptions to this rule. A person will only be liable if he is under a duty to act. This includes the following situations:

·         Duty under statute

A limited number of statutory provisions create liability for omissions in certain circumstances. For example, Road Traffic Act 1988, a person must provide the police with his details. The Children’s and Young Persons Act 1933 under this act, a person will be guilty if he fails to provide a child with adequate food and clothing.

·         Duty under contract

There may be a specific duty to act laid down in a person’s contract. For example, a lifeguard is employed to save lives. The same rules would apply to a person in R v Pittwood 1902 case. Defendant was a railway employee. He left a railway barrier up and went for his break. As a result, there was collusion. The defendant was found guilty of ‘gross and criminal negligence’ because he did not put a barrier down.

·         Misconduct in a public office

In Dytham 1979, a police officer stood by, while the victim was killed to death. Defendant was found guilty for failure to act.

·         Where there is a special relationship between the parties

A party may be found guilty of failing to act if there is a special relationship between him and the victim. An early case on this subject was Instant 1893, where the defendant failed to help her aunt. The aunt contracted gangrene in her leg and died. Defendant was found guilty of manslaughter. Another case illustrating this is Gibson and Proctor 1918, where the defendant and his common law wife were found guilty of manslaughter when they failed to feed the defendants child who later died from starvation. The father was obviously under a duty to look after his child. The wife (step mother) was liable as she was responsible for the shopping and excepted money from her husband to buy food.

·         Voluntary acceptance of responsibility

This is wider than the duty from a special relationship as the victim and defendant do not have to be related in any way. A person voluntarily accepted someone to look after and later on fails to help. A good example of this was the case of Stone and Dobinson 1977, in this case the sister of an elderly man came to stay with him and his woman friend. She refused to eat, became bed-bound and developed serious bedsores that become very badly infected. As a result she died. The couple were convicted for manslaughter.

·         Creating a dangerous situation

If the defendant creates a dangerous situation he is under a duty to inform somebody. In this case of Miller 1983 a squatter had fallen asleep while smoking his cigarette. As a result he sat the room on fire. Instead of alerting a fire brigade, the defendant moved to a next room to continue sleep. When the fire was spreading around the house he left the house. The defendant was guilty because he failed to act.

·         Under a continuous act

In some cases, the Judge will avoid the difficulties of trying to establish liability for omission and impose liability in other way. An example of this was a case of Fagan v MPC 1969, where the defendant accidentally drove on to the policeman’s foot. Policeman was shouted at to remove the car, the defendant swore back and told him he could wait. It was a continuous act. When the defendant mens rea become clear, defendant was charged for offence.

English law system examines the question of introducing a Good Samaritan Law. Good Samaritan law means that a person is responsible for helping others in an emergency situation, even though they are complete strangers and if they fail to act they will be guilty of failing to act. It is a good idea because a person can prevent death of others and also practice his skills in helping someone. However, if the person fails to help or during the help he injuries someone he can be guilty. Also, if a person is physically able to act but emotionally not, he still will be guilty of failing to act.

For example in France, it is a legal requirement to help someone who is injured or needs help. If an onlooker does not help, then he or she can be charged with failing to respect the law. French law is different from English and it is really tough.  A good example will be a case of Angelique and Jean-Sebastian Fraisse, the defendants had a dinner with their guest. There were drinking. As a result drunken guests drive away from their home and cause a crash that killed him and four others. The couple charged with ‘failing to prevent a crime or lesser offence causing bodily injury’. They were sentenced for 5 years and £50.000 fine. Another example we can look at, it is when a women in Lyons was fined £14 for smoking a cigarette while driving because she had only one hand on the wheel.

Due to all these fact it is really difficult to say what is better omission or commission, act or fail to act. In some cases u can see that it is better to act and help people. However in different cases you can cause body injury or even death to a person.