(This writeup brought to you by the Node Your Homework directive; it's based rather heavily on an essay I did for my Criminal Law class back in November of 2004.)
“The conduct of the parabolical priest and Levite on the road to Jericho may have indeed been deplorable, but English Law has not so far developed to the stage of treating it as criminal.”
So stated Lord Diplock in the case of R v. Miller, as an obiter dicta which goes to show the attitude to the idea of criminal omissions as it stood in 1982. As of now, there has been no change in what precisely it covers since 1982, which has led to debate as to whether the law of criminal omission is sufficiently wide or not; an argument as to whether it needs to be expanded in order to include, for example, a wider range of legally enforceable civil duties or whether to do so would be dragging too much moral judgement into the law. This moral question is important, since the law only ought to criminalise that conduct which an overwhelming majority of people would find morally reprehensible; and is it the place of the legislature to enforce a moral code? This is an important question, as it dictates how much we criminalise omissions or failures to act.
So what is the doctrine of omission at criminal law? Currently, there are a two situations in which a failure to act or a failure to do something constitutes the actus reus of the offence; specifically, failure to perform a specified act in circumstances where the law explicitly says that not to do something is an offence (for example, there are offences such as “failure to provide a breathalyser sample when requested” in which the actus reus is not providing a breath sample) or causing harm indirectly to someone through a failure to act in one of several specific circumstances, usually where there is a special pre-existing duty of care - for example, parent or legal guardian/child, doctor/patient, etc.
Although the first of these categories is quite clearly not worth debating, as the very offence itself is named “failure to do something,” and this clearly indicated that the actus reus of the offence is clearly an omission. The question arises, though, over the second category mainly, and one of the specified circumstances for a criminal omission is that the defendant is a blood relation of the victim (under the law, this falls into the category of a special relationship.) The rationale behind this, it appears, is that parents have a duty to look after and care for their children; after all, a mother who fails to observe her offspring drowning in a bathtub while unsupervised has clearly been negligent in her parental duty as she had a legal responsibility to the child and, according to Hart and Honoré, in Causation in the Law, when one deviates from a societal norm in such a manner, it becomes an exceptional circumstance, and modern society, despite technological advances and philosophies, continues to be interdependent.
On the other hand, the author Hogan has said that “there is no way you can cause an event by doing nothing.” His rationale is that if you do not do anything to affect a situation, the situation will be carried out to the conclusion it would have reached but for your interventions. Therefore, you are not directly causing the event, as it would still have occurred had you not been there. On balance, though, the view of Hart and Honoré is preferable, as it has some case law to back it up. (R v. Downes, R v. Stone and Dobinson, among others.) Also, in this situation, where the victim is a blood relative or wife or somebody for whom the defendant has assumed responsibility (e.g. in adoption, doctor/patient, etc.) the law of omissions seems to be sufficient as it would be an exception to a societal norm according to Hart and Honoré, although it is worth noting that in the US case of People v. Beardsley an assumed responsibility was not made, as the judge there described the victim as the defendant’s “weekend mistress.” These views were echoed by Professor Ashworth in The Scope of Liability for Omissions, in which the author explains why a blood relation, marriage, or similar relationship to a victim should call for a special duty to act in case of a danger ot that person.
Another place in which the law of omissions is used as an actus reus at present is illustrated by the case of R v. Miller. Here, the accused was a homeless person who set light to a building in which he was squatting by his omission to extinguish a half finished cigarette before he went to sleep, and thus caused extensive damage to the building. It was ruled here, though, that that conduct was not so much a criminal omission. However, upon being woken by the burning mattress some time later, simply moving to another room rather than taking steps to extinguish the fire did constitute such an omission. Lord Diplock, when the case was laid before the House of Lords, upheld the conviction, saying that where the accused caused a danger, he would have a specific responsibility to take steps to minimise that danger. Morally, this also seems sound - especially as in this case the property damaged did not belong to the defendant, it was morally the right thing to do to attempt to put out the fire or, if there was no available method to hand, raise the alarm. So, as we can see here, the law of omissions does appear to adequately cover such a situation.
The law of omissions, it can also be argued, is necessary to allow the concept of “euthanasia by inaction,” though this in itself is a moral minefield. From a legal point of view, however, in the case of a terminally ill patient, the current law is that killing a patient that is on life support who has no chance at all of recovery, is illegal, as is assisted suicide performed on a terminally ill patient, even with consent (see R v. Pretty, or, in the US, possibly the Terri Schiavo affair, since whether exactly this constitutes an omission may come up in future litigation), but letting them die through the withholding of treatment is not, as Lord Goff ruled in the case of Airedale NHS Trust v. Bland.
Similarly, the law of omissions also extends to medical practice. In the case of Re A (children), the doctors argued that to separate the Siamese twins in question should not constitute a criminal act as it was the “lesser of two evils,” so to speak; that is, by separating them only one of the twins should die while, if they omitted to separate the twins, both would invariably die and they would be guilty of causing death through inaction where they had assumed a duty of care.
On the other hand, there are some instances where the law of omissions does seem rather inadequate to prevent certain harms. Take R v. Khan and Khan by way of example. In this case, an appeal was allowed and it was held that the defendants’ duty to act was too far-fetched, although this decision has come under fire from various authors, including C. M. V. Clarkson and H. M. Keating, who say that, owing to the precedent set in Miller, where the defendant has created a danger - in this instance, supplying heroin to someone who is inexperienced in its taking and thus at greater than normal risk of overdose - then, the defendant is under a special duty to minimise any danger and thus their omission to find medical assistance for the deceased constituted a criminal actus reus. Proponents of the ruling in Khan and Khan, however, could state that this ought not to be a criminal omission, as if it was held to be an omission it would set a legally binding precedent which would extend the idea of a “reasonable duty to act” too far.
Some writers and practicing lawyers also believe that, as in France, the UK should have a duty of easy rescue - that is to say, a general duty imposed on every citizen to come to the aid of any other person who he or she feels is in danger. As Graham Hughes wrote in his article Criminal Omissions, “The law often lags a half-century or so behind public mores.” However, the argument against this is, according to Professor Ashworth, that “the criminal law should recognise an individual’s choices rather than allowing liability to be governed by chance.” Others argue, in a similar vein, notably Clarkson & Keating, that the person in danger has no legal right to rescue, and thus by extension there is no duty to rescue them. Also, we should ask ourselves, how do we define an "easy rescue?" Should we use the reasonableness test to determine that? Suppose that D saw a child drowning in a swimming pool and had no duty of care to them. Should they be immediately obliged to dive in a rescue them? What if they cannot swim? It is considerations like these that make the implementation of such a doctrine rather difficult.
So, bearing all the above reasoning in mind, is the law of omissions sufficient? On balance, it appears that it is. Although the law is heavily influenced by and based on the idea of societal mores and morality, we must nevertheless try to prevent the law being overcome by morality, for reasons of practicality, and also because people have different ideas as to what is morally acceptable. It may not be particularly pleasing that a person can stand and watch someone drowning without lifting a finger to save them, but the difficulty in proving a criminal omission in such a case would be staggering - did they actually intend to act but panic and not know how to go about saving the person, for example? Also, we should ask ourselves if it is right to brand those who failed to act in such circumstances as if they had thrown the victim into the river in the first place. The law must be constructed to reflect the society of today, and evidently it is generally not thought of in the public’s mind that those who fail to save people’s lives are as bad as those who take them.
Criminal Law, Theory & Doctrine, Simester & Sullivan
Criminal Law, Text & Materials, Clarkson & Keating
Various lecture notes, articles, cases etc. as cited in the text.