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Is there any rational basis for the distinction which criminal law draws between acts and omissions

Is There Any Rational Basis for the Distinction Which Criminal Law Draws Between Acts and Omissions? How consistently is the Distinction Maintained?

An act is an action which directly or indirectly causes a result. In criminal law, a person is held liable for an action which, when the required mens rea[1] and actus reus[2] can jointly be proven to have caused harm to a person or property, unless they have a reasonable defence[3].

In contrast people are usually not convicted for their omissions: "it is evident that to punish men by law for not rendering to others all the service which it is their [moral] duty to render would be preposterous" [4]. Making all moral omissions a crime would encompass too many people and would create an oppressive society[5]. An omission in law is where action is not taken which would prevent or reduce the risk of harm or damage to a person or property, where a person has an obligation to act. A policeman in Dytham [1979] QB 722[6] was found guilty of misconduct whilst acting as an officer of justice, whilst as he was in uniform and on duty he stood by and failed to assist a man who was beaten to death by a doorman of a nightclub. His omission to act had contravened his statutory obligation to help, which his profession imposed on him.

Where a relationship or assumption of care is present, there is an automatic duty to act, so that if an omission to act results in "legally recognised harm"[7], liability may be applied. In Stone and Dobinson [1977], the court of appeal ruled that by assuming duty of care for his sister they were "obliged to summon help or care for the sister when she became infirm"[8]. Lord Atkin ruled that a sentence of manslaughter should be applied to the fatalistic omission, especially when it was proven that if help had been attained at the time of her last bathing, two weeks before her death, she would have survived.

A further scenario where liability is addressed for an omission is when "an initial inadvertent action results in harm which the defendant later knowingly fails to avert when the opportunity presents itself"7, represented by the case of R v Miller (James) [1982][9]. The Court of Appeal ruled that a coincidence of mens rea and actus rea is usually fundamental, however, "an unintentional act followed by an intentional act or, in appropriate cases, reckless omission to rectify it or its consequences, could be regarded together as an intentional act"[10]. The sequence of events from Miller’s accidental falling asleep with the lit cigarette in his hand, to discovering that the mattress was smouldering, to ignoring the fire hazard, and moving to a next room was considered, by the House of Lords, as one continuous reckless act. Miller was thus found liable for arson due to his omission to rectify the dangerous situation, which he himself had created, as soon as the opportunity arose.

When dissecting the elements of an omission and an act, many similarities are found. When deciding whether a person is liable for an act which results in causing criminal harm or damage, it must be considered whether the act was voluntary. For example in the case of murder, a person is found culpable if they are found to have the mens rea[11] and actus reus[12], which they voluntarily choose to perform. Yet, in order to refrain from acting, there has to be a voluntary decision to omit to act. In the case of Miller he voluntarily thought to leave the scene where the mattress was smouldering knowing that the mattress would most likely set alight, whereas a person who had voluntarily thrown a match onto the mattress would be convicted of the identical crime of arson. There becomes a point where decisions are paramount to whether a person is liable or not for a crime. In both acts and omissions the element of decision in both is what fails to conclude that it is rational to distinguish between them both.

When the implication of "intention" is used to define an element of actus reus and mens rea combined, it becomes clear that it may not be so rational to distinct between an act and omission. Liability for an act requires it to be proven that the actor had mens rea or the intention of causing harm or damage, yet it can be ascertained that for many criminal omissions the mens rea is the same, in that they know by not acting, harm or damage may still occur. It is thus questionable whether there should be such a clear distinction between the two. This may be exemplified by Fagan v Commissioner of Police Of the Metropolis [1968] where an originally accidental act of driving a car onto the foot of a police constable was then followed by the intentional mens rea resulting in a temporary refusal to remove the car from the foot. This element of mens rea adapts the incident, in the eyes of the law, to have become one long sequence of events, which technically since the actus reus[13] and the mens rea[14] would serve as proof, under normal circumstances as a criminally liable act. This suggests that it is not rational to draw such a distinction between an act and an omission.

However the distinction between acts and omissions is often criticised as the distinction can often differ simply on the way the situation is described. Reflecting on the case of Airedale NHS Trust v Bland [1993] where a request was brought to court by doctors of the hospital requesting permission to remove life-supporting machines. Lord Goff of Chieveley, in the House of Lords, ruled that it would be a legal omission due to the situation, as there was no duty for a doctor to prolong the life of an individual regardless of the circumstances. However, contrary to Lord Goff’s ruling it could also be viewed that the action was indeed an act of murder, complete with the necessary mens rea and actus reus[15]. It is thus that the distinction between an act and an omission becomes blurred and it wholly depends on how the sequence of events is described and on how the law views such sequence of events.

It is notable that in the case of a death, the causation lays equal weight on whether the result was caused either by an act or an omission. The fact that the maximum sentence for each[16] is a life-sentence highlights that there is not a rational basis for drawing a distinction between the two. A difficulty with this is highlighted in Smith [1979] S was charged with manslaughter for not receiving medical help, which would have saved his wife’s life if it had been received at the beginning of his wife’s deterioration of health. S contested that his wife had had a dislike of doctors and that it had been her request that he should not seek medical advice. S was held liable for his wife’s death. It is thus a concern whether acts and omissions should not be more clearly distinct from each other, in order to prevent similar convictions being placed onto defendant’s where the omission is not wholly voluntary, but which is not covered by the law, whereas actions have more distinct defences.

The distinction between an act and an omission is therefore not fully rational as in most cases the distinction is not fully maintained. It is often used to describe the sequence of events, yet it is often blurred with the term "act" in addressing culpability. Miller highlights controversy that by omitting to take action which would have prevented the extent of the fire, the entire sequence of events can be combined to equal one act, which disguises the distinction between an act and an omission.

However, the distinction between an act and an omission serves an important purpose, as it does serve to distinguish and highlight some behaviour that can only be solely classified as an omission to act, and are charged as thus, as in Dytham and many statutory motor offences. Also the distinction between an act and omission still serves to highlight some situations where a person is criminally liable for their omissions, where if there was no distinction, may be overlooked; even if the end result is that the person is convicted with the same terms as the voluntary act would enforce, as in Fagan v Commissioner of Police Of the Metropolis. However, rather than claim that it is irrational to distinct between an act and an omission, it may be considered that the way in which the courts handle the distinction between acts and omissions is unsuitable, to the effect that the distinction becomes irrational and useless.

[1] Mens rea: a proven intention

[2] Actus Reus: a voluntary action

[3] Defence: proof that the action was not voluntary, e.g. an action forced by illegal coercion

[4] Lord Macauley’s Works (Ed. Lady Trevelyan), Vol. VII, p497

[5] It should be noted that this differs from other European countries. In France, for example, in 1997 the "paparazzi" at the scene of Dodi al Fayed and Diana, Princess of Wales were convicted with failing to assist a person in danger.

[6] M. J. Allen Textbook on Criminal Law 6th Edition, Published 2001

[7] Lacey and Wells Reconstructing Criminal Law, Text and Materials 2nd Edition, Published 1998

[8] Westlaw UK information website

[9] Westlaw UK information website

[10] Lacey and Wells Reconstructing Criminal Law, Text and Materials 2nd Edition, Published 1998

[11] Intending to act in a way that will have a virtual certainty of causing grievous bodily harm, or killing a person.

[12] Performing an action which will achieve the terms of the mens rea.

[13] Driving the foot onto the police constable’s foot.

[14] Refusing to remove the car from his foot.

[15] The doctor was aware of what would happen when the life-support machines were removed and which also provides the voluntary intention to let a person die

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