The law of omission liability

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Critically evaluate whether the law in respect of omissions liability is in need of reform. Given that one may be liable for an offence as serious as murder by omission it is paramount that that liability is clearly defined. Chapter 1

  • Introduction to Omission
  • Offences capable of being committed by omission
  • Introduction to Murder

Introduction Traditionally criminal responsibility is based on what the defendant has done and also on state of mind when he did; this approach is summed up by Latin maxim. “Actus non facit reum nisi mens sit rea” Which means “No act can make a person guilty without prohibited state of mind”? For the purpose of analysing a crime, it may be stated that a crime can be divided into two parts called elements. Firstly Actus Reus which is the outward conduct which must be proved against the accused and secondly Mens rea which is the state of mind the accused must be proved to have to have at the time of the conduct. Actus Reus is not just the commission of an offence but can also be an omission to act or a state of affairs. Thus inevitably, criminal conduct usually takes the form of some act. However, where appropriate, liability may be based on an omission to act. “Although a failure to act may have serious consequences as an act and although any difference between acts and omissions is often denied the distinction is deeply embedded in law. The fact is no less inescapable because there is no precise test for distinguishing an act from an omission. Human conduct may often be described in either positive or negative terms, although one way rather than the other will appear more natural… [But there are difficult cases] and their very existence leads to the imposition of liability for omissions. A man is in his spring cart; the reins are not in his hands, but lying on the horse’s back. While the horse trots down a hill a young child runs across the road in front of the cart is knocked down and killed. Had the man held the reins he could have pulled the horse up. Did he kill the child by driving the cart recklessly or by recklessly failing to drive the cart?[1]” A question may be raised as to what is ‘an omission?’ it may be described as Defendant’s conduct as ‘not doing’. According to Ashworth omission is only apply in failing to do things which there is some kind of duty to do, or at least things which it is reasonable to expect a person to do (on the basis of some relationship or role[2]). Therefore generally there is no liability for an omission to act because it would be impractical to impose such a liability unless the defendant was under a legal duty to take positive action. A moral duty will not be sufficient. For example, suppose that Defendant comes out of a club late at night and sees that,

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