The need for reform in criminal law

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The criminal law on omissions is confusing and does not fit easily with the requirement that both actus reus and mens rea must be present to establish a criminal offence. This area of law is in need of reform. Discuss with reference to the relevant law. A fundamental principle of the criminal law is that the prosecution must prove, for all crimes, beyond all reasonable doubt, that the defendant committed both the actus reus and the mens rea (except crimes of strict liability). The actus reus, or ‘guilty act’ for most crimes, will involve the physical act of committing the crime, such as using physical force to commit grievous bodily harm upon another person. The mens rea of a crime involves the mental element. Some crimes require specific intent, such as murder. Other crimes, such as criminal damage can be proven by a lesser state of mind, such as recklessness. The introduction should also introduce the concept of omission. [Researcher’s comment: The introduction NEEDS to introduce the concept of criminal liability, ie, mens rea and actus reus as it is specifically referred to in the question, which is why I have placed this here. The next logical step is then to discuss how the concept of omissions fits in. You can’t begin to discuss omissions until this has been dealt with.] Thus, it can be established that for the most part, the law recognises the guilty conduct of the offender in the form of a physical act. The essential question arises, when does the law recognise an omission to act as criminally culpable? Should the law go as far as to punish those who fail to play the good Samaritan to the individual in peril, or simply enforce a responsibility to act where there is a clear duty of care to another individual? Shouldn’t this be included as the introduction given that it introduces the concept of omissions [Researcher’s comment: dealt with above]. The law seems to favour the latter. In R v Miller[1] it was stated: “Unless a statute specifically so provides, or … the common law imposes a duty upon one person to act in a particular way towards another … a mere omission to act [cannot lead to criminal liability].” An example of an offence created by statute for an omission to act, would be a failure to produce a specimen of breath under the Road Traffic Act 1988, section 6(4) where a police officer has reasonable suspicion to request such a specimen. Further, a statutory offence also dealt with by the Road Traffic Act, is the failure to wear a seat belt whilst driving. One could argue that this is in fact a positive act. Although the failure to wear a seat belt is in fact an omission, in order to be guilty of such offence, the defendant must also commit the physical act of driving. Thus, there can be no offence for the omission to act without the positive act of driving. This is a good demonstration of some of the difficulties and inadequacies of the law on omissions. The common law has developed a number of categories in which a duty of care arises between certain individuals. A failure to act in such circumstances can lead to criminal culpability. The first of such categories is where a special relationship exists between the individuals. Such relationship can be between a parent and child. In the case of Downes[2] a father who belonged to a religious sect who believed in the power of prayer rather than orthodox medicine was convicted of manslaughter when he failed to call a doctor for his sick child who later died. Such duty is now imposed by statute.[3] A further example of such duty can be found in the case of Gibbins and Proctor.[4] (no explanation of case in footnotes) [Researcher’s comment: Explanation of cases is not always needed. It is much the same situation as the case just mentioned. This is placed here simply for further authority of this point. Further, footnotes should be for reference only.] An individual who has a duty under a contract will also be liable under the criminal law for a failure to act. In R v Pittwood[5]a gatekeeper who forgot to shut the gate on a railway crossing which resulted in the death of a person hit by a passing train was found to owe a duty in law. Where an individual assumes responsibility for another, a later failure to act could lead to criminal liability. In the case of Stone and Dobinson[6] the defendants were held liable for their failure to fulfil a duty of care to Stone’s sister who came to live with the defendants. The sister became extremely ill and the defendants hopelessly tried to help her, but were not able to do so. Despite their hopeless efforts, they still failed to meet the duty of care that they had assumed by becoming carers. The conduct of an individual may also give rise to a duty to act in certain circumstances. For example, in R v Miller[7] the defendant had fallen asleep in the squat where he was living with a lit cigarette. The mattress in his room caught fire and instead of taking action to extinguish it, he simply got up and moved to another room. He was held to have created a duty of care from his own dangerous conduct and by failing to take any action to prevent the fire spreading, even by merely calling the fire brigade, he was in breach of that duty and convicted of arson under the Criminal Damage Act 1971. Thus, an individual who creates a dangerous situation should be held to have a duty in law to rectify that situation and the law clearly states that this is the case. Although these five categories are clearly established in law, they are not indicative. In Khan and Khan[8] two drug dealers appealed from convictions of manslaughter as a result of supplying the deceased with heroin and failing to summon medical assistance when she went into a coma. The convictions were quashed by the Court of Appeal, where Swinton Thomas LJ stated: “To extend the duty to summon medical assistance to a drug dealer who supplies heroin to a person who subsequently dies on the facts of this case would undoubtedly enlarge the class of person to whom, on previous authority, such a duty may be owed.” These quotations are to long particularly as there seems to be no analysis supplementing them. [Reseaercher’s comment: The analysis is contained below. This is a clear explanation of when the law should extend a duty of care which is why I placed it here. It is also part of the public policy argument] Essentially, the issue of imposing a duty of care is one of public policy. In circumstances where the court feels that policy should dictate a duty of care in the circumstances, then this will require the imposition of such duty. Moreover, English law is based on a common law system that allows predictability through a system of precedent. For judges to simply extend the duty of care in cases where they see fit, would be to completely ignore such authority and clearly a bad path for the law to tread. As a matter of comparison, when examining the principles of causation, the common sense approach of the ‘but for’ test provides a clear starting point to establish causation. However, in order for the causal link to be established at law, there must be a proximate cause. As a matter of fact, such ‘proximate cause’ (where did this quote come from? [Not a quote, it’s a term referred to heavily in the case law for causation.]) is not so easy to establish, and many academics have advocated that the ‘desiderata of cause, are not causal factors at all, but matters of legal policy.’[9] Smith comments: “If that is the case, however, we have no causal ground for distinguishing acts from omissions based on the use of causal concepts in law, since proximate cause is about responsibility, and “but-for” cause does not distinguish positive from negative factors in a causal field. Negative factors are causal factors just as positive factors are. Consequently, it is reasonable to conclude that nothing in the legal treatment of causation precludes omissions being considered causes in the law.”[10] (quote to long, it should only capture the main points) [This quote explains the main points of my arguments below. It brings the aspect of causation into the argument and how, although not directly, the reasoning behind many of the omissions decisions, has been based on where the defendant has either ‘allowed’ something to happen, or ‘caused’ it to happen. The latter represents the majority of the omissions cases, where the conduct of the defendant has been more than simply ‘allow’ the act to happen. However, the discussion then goes on to say, in causal terms, there must at least be some difference otherwise we would not distinguish between acts and omissions. Thus, essentially, what the law is attempting to ascertain, is the difference between allowing situations to happen, and causing them to happen. (Good analysis) In this aspect, the courts have created a grey area with the analysis between acts and omissions. Airedale NHS Trust v Bland[11] involved a civil decision, where the healthcare team in charge of a patient in a persistent vegetative state (PVS), applied to the court for a declaration that it would be lawful to withdraw hydration and feeding. Essentially, the case was brought in order to establish the legality of such action and immunity from prosecution. The patient had been in his unconscious state for a considerable amount of time, with no prospect of recovery. He was being fed by naso-gastric tube. The healthcare team wanted to remove his feeding and hydration, which would eventually result in the death of the patient. The House of Lords concluded that to do so would be lawful. In arriving at their decision, their Lordships applied the acts and omissions doctrine. Under civil law, as there was no way of gaining Anthony Bland’s consent, the doctors could only treat him under the doctrine of necessity if it was in his best interests.[12] They had concluded that it was not in his best interests, and to carry on feeding him (regarded as ‘treatment’) was a criminal and civil assault. Therefore, they had to remove such feeding. Thus, the cause of Anthony’s death would not be the result of a physical act, but an omission. (Couldn’t the case be briefly discussed in the footnotes and rather more analysis and evaluation in the body) [This case is extremely relevant to the discussion, as are the points. I know a lot of detail has been spent on this case, but out of ALL the omissions cases, it raises some of the most interesting arguments and authoritative statements. The section also contains a good analysis of the decision. Both are incorporated, and it is necessary to explain the circumstances in order to critically analyse the case. Further, it carries greater weight for analysis of the doctrine. Not only does it show how public policy has discharged a duty of care, it also discusses how the distinction between acts and omissions is difficult to make. None of the other cases have provoked such academic debate as this.] This approach is extremely controversial; as essentially, the removal of the naso-gastric tube involves a physical act, that will in fact, cause Anthony to die. In essence, this type of conduct falls under the category of ‘causing’ the death, rather than merely allowing it to happen. A distinction would be if Anthony were never placed on such feeding, his death would be a result of his mal-nutrition and his physical inability due to his physical inability to feed himself. By intervening and treating Anthony, the healthcare team had to then take physical action to allow him to die. Further, it would seem that the very reason their Lordships followed the reasoning they did, was a matter of policy. They were able to state that the healthcare team would not be guilty of any homicide offence because their duty of care was discharged by the fact that the treatment was not in his best interests. Therefore, in law they were under no duty to act and withdrawing treatment to allow Anthony to die was lawful. The discussion on Anthony seems to have become the main point of the essay, although some of the points are good, research should also focus on other similar or contrasting cases to make such points. [N.B. Discussed above] Interestingly, the analysis in Bland is quite inconsistent. Returning to the earlier case of Stone and Dobinson,[13] one could argue that in the same way, by intervening and accepting responsibility, the defendant’s in the case had voluntarily assumed a duty of care. Thus, in Bland, the same could be said, the doctor’s duty of care arises from an agreement and an assumption for the treatment of the patient. In Bland, it was held that it was no longer in his best interests to carry on with the treatment. In Stone and Dobinson, the sister insisted that she did not want help in anyway and the defendant’s were clearly intimidated by this. Yet liability for the latter was asserted, clearly again because of policy. The fact that withdrawing treatment would cause the death of Anthony, also brings into the discussion the mens rea requirement. Even if the death of Anthony was not directly intended, it was clearly a virtual certainty of their actions and therefore a jury could have inferred intention to cause death under the approach of Woollin.[14] This approach has been further exemplified by the Court of Appeal in the decision in Re A (Children)[15] where doctors separating conjoined twins foresaw the death of one twin as ‘virtually certain’ and therefore had intention for murder. The doctors in the case however, were not guilty of an offence. Yet again, the assertion is one of policy. The implications of holding doctors and healthcare professionals guilty of homicide offences is striking and the courts have to accommodate such policy decisions in their reasoning. Further, the principle that both the actus reus and mens rea must be present in order to secure conviction also plays significance in these decisions. Coincidence of both aspects of a crime is essential. Yet in certain cases, on the face of it, such principles do not coincide. The driver in Fagan[16] who accidentally drove his car on to a policeman’s foot, was asked to move it off, delayed in doing so, and he was convicted of assaulting the police officer. Although at the time his car initially made contact with the officer’s foot, Fagan did not possess the necessary intent, his subsequent actions constituted a ‘continuing act’ where is this quote from? [Again, it’s not a quote, it’s a point referred to continuously in the law relating to coincidence of mens rea and actus reus] and therefore, the later refusal to move the car, because of the intent to assault, resulted in a coincidence of the necessary elements. Allen comments that if the same facts were to occur today, then Fagan would have been convicted under the duty principle in Miller.[17] However, even if the same situation was to arise and the principle in Miller applied, then the analysis would still require the conduct of the defendant to be treated as a continuing series of events, whether acts or omissions. The difference with the latter being that an omission to act in itself brings into play a series of events that in certain situations, can be prevented.   In essence, the main issue is that the law on omissions is both confusing and centered on policy. Policy interprets the boundaries of the legal duty to impose legal culpability for an omission to act. Clearly, in circumstances where policy dictates that a duty to act, or not to act, should arise, then the law will follow such approach. However, should the law go as far as to impose a general duty to act in a situations which at least something can be done to prevent a potentially fatal outcome. Thus, the member of the public who is walking on the riverside, and sees a young girl drowning, but is afraid herself to help as she cannot swim. What should she do, walk on by? Or is she expected to take a step further and attempt to rescue the girl? Well, in essence, the law could require neither. Even if the passer by were able to call for further help, or throw the life buoy to try and save the girl, this would surely discharge her duty of care, if the law were to impose such duty. French law imposes such a duty.[18] Surely, this is not so overreaching as to take away civil liberties? Every individual is entitled to the right and respect to a private life under Article 8 of the European Convention on Human Rights and Fundamental Freedoms, implemented into domestic law through the Human Rights Act 1998. However, it is unlikely that if introduction of such duty was implemented, that one could argue that such duty was in breach of fundamental civil liberties. One would hope, for the most part, that a passer by would in fact raise an alarm, or attempt to help, but this is clearly a question of conscience and not legal duty. One option would be to follow the example of France. However, this would require a radical change to the omissions doctrine as demonstrated under English Law. One would further have to consider the scope of such duty. Would it be sufficient to describe it as a duty to rescue, as is the case in France?[19] This however, would have to be moderated, in that a duty to rescue could not impose a duty upon one person, to rescue another, in circumstances where the rescuer would be in danger, or even possibly face a hostile situation. This would surely be in breach of an individual’s civil liberties under the Human Rights Act 1998. One thing that is certainly clear is that the judiciary would be extremely reluctant to implement such changes in the law. Criminal liability for such circumstances should be the subject of reform by the elected lawmakers; Parliament. One thing that should be clarified is the exact duty of care for an omission to act. One codified piece of legislation. In reality however, the case-by-case basis of the common law enables the judiciary flexibility to deal with situations as they arise and implement a duty of care when they see fit, and when policy so dictates. It also allows great flexibility in manipulating the law to coincide both elements of an offence, whether one chooses to approach the subject on the basis of acts or omissions. What the present law seems to allow, is room to impose a duty when the court sees fit, and where the court feels the defendant has done more than simply ‘allow’ the circumstances to occur, but can be said to have ‘caused’ such circumstances. Suggestions for reforms are required, not simply in the conclusion but also in the areas of law where there appears to be error or confusion in the law and there is an obvious requirement, or even contrastingly where there doesn’t appear to be a need for reform. Since that would appear to fully answer the question. Thank You. Bibliography Allen, M.J., ‘Textbook on Criminal Law’ (5th Edition, 1999), Blackstone Press, London (there is a newer edition) [I am aware that there is a newer addition, however, I have used up to date books as well as this one] Clarkson and Keating, ‘Criminal Law’ (5th edn, 2003), Sweet & Maxwell, London Goff, ‘The Mental Element in the Crime of Murder’ (1988) 104 L.Q.R. 30 Gross, H., ‘A Note on Omissions’ (184) 4 LS 308 (cant seem to find this? Afraid I only have this in paper format) Smith and Hogan, ‘Criminal Law’ (10th edn, 2002) Butterworths, London Smith, P., ‘Legal Liability and Criminal Omissions’, Buffalo Criminal Law Review [2001] Vol. 5:69 Wilson, W. ‘Doctrinal Rationality after Woollin’ (1999) 62 M.L.R 448 1

Footnotes

[1] [1983] 1 All ER 978 [2] (1875) 13 Cox 111 [3] Children and Young Persons Act 1933, section 1(2)(a) [4] (1918) 13 Cr App R 134 [5] (1902) 19 TLR 37 [6] [1977] 1 QB 354 [7] supra, note 1. [8] [1998] Crim LR 830 [9] Smith, P., ‘Legal Liability and Criminal Omissions’, Buffalo Criminal Law Review [2001] Vol. 5:69 [10] Ibid [11] [1993] AC 789 [12] Re F [1989] 2 AC 1 [13] Supra, note 6. [14] [1998] 3 WLR 382 [15] [2000] 4 All ER 961 [16] [1969] 1 QB 439 [17] Allen, M.J., Textbook on Criminal Law, 1999:44 [18] Article 223-6 of the French Penal Code; A. Ashworth, E. Steiner, ‘Criminal Liability For Omissions, the French Experience’ (1990) 10 Legal Studies 153 [19] A. Ashworth, E. Steiner, Ibid  
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