No one believe that we should be guilty for every omission nor do many suggest that omissions are never punishable. The extent to which criminal liability for omissions can be legitimately extended remains at the heart of legal debate. The general rule in common law is that there is no liability for omissions but there are substantial exceptions that arise when one has a specific duty to act. Thus, an omission is simply ‘a neglect of duty’; one is liable only when a legal duty- statutory, situational, contractual, and relational- is in existence. This essay will discuss that since offenses of omission are conventionally understood as crimes merely consisting of a 'breach of duty', the real issue is the competing definitions of what duties are owed by people to each other and how far the scope and standard of duty can be legitimately extended. In arguing this point, this essay will also discuss how the doctrine of a general duty to rescue proposed by social responsibility theorists law cannot be legitimately justified, as it would undermine liberty, autonomy and the rule of law.
Where there is statutory or relational basis for a duty to act, an omission to carry out the duty may incur criminal liability. There is no question that parents are responsible for the welfare of their child. In Gibbons and Proctor, both parents were charged with murder for neglecting to feed their child to death. However, the legal duty of care and liability for omissions can be extended to those who has taken on the obligation to care for another. A prominent but controversial authority is Stone and Dobinson. The defendants, both with disabilities, voluntarily ‘took in’ Stone's sister, an infirm women struggling with mental health issues but attempts to summon sufficient medical help failed and the victim died. The court held that defendants accepted the responsibility for an incapacitated relative so failing to take necessary care incurs liability for manslaughter should the relative die as a result. This suggest that courts adopt a strict line when faced with claims that the defendants had done what they believed to be sufficient to fulfil their duty. Although critics suggest that the scope of relational duties in this case is illegitimately extended to far, given the vulnerability of the defendants, when one voluntarily take someone 'helpless’ in, there should be duty to guarantee his or her safety due to the expectation of reliance. Therefore, criminal liability for omission can be legitimately be extended for relational duties that are of sufficient proxibility.
A duty to act can also be created by an implied or express contract and that duty can be legitimately extended to those with public office status. A person may be employed to ensure that citizens are not endangered by a piece of machinery. In Pittwood, the defendant, as a railway gatekeeper, left the gate open before his lunch break and a cart driver was killed while crossing. Where the failure to fulfil a contractual obligation is a risk to others’ lives, legal duty to act is owed to both the parties to the contract and the victim. Although courts have not addressed the issue of whether the duty owed under a contract exist strictly within the terms and conditions, the duty to act for public sector workers are broader than other professions. In the famous case of Dytham, a man was kicked to death outside a bar in front of a police who refused to act because he was off-duty. He was convicted of misconduct in a public office and dereliction of his duties to maintain the peace. In this case, the scope of duty is extended; unlike citizens, police officers have a contract with the state and a duty of care to all of society. Therefore, when the consequence of one’s omission concerns the public interest the scope of liability can be legitimately extended as the duty in this case is arguably both contractual and statutory.
Moreover, criminal liability may be legitimately imposed for situational cases where an action results in a dangerous situation which the defendant knowingly omits to mitigate the harm. Conviction for omissions is based on an imputed duty to act, flowing from ‘responsibility’ for minimising the wrongfully created a consequence. A cause celebre for this principle is Miller. The defendant fell asleep holding a cigarette, unintentionaly started a fire but ignored it. Applying the principle of 'supervening fault', Miller becomes liable for the reckless refusal to extinguish the fire as at that point in time, actus reus and mens rea overlap, resulting the criminal liability. This principle was confirmed in Santana-Bermudez v DPP. In response to the officer's question, the defendant declared that he had no needles on him. However, while searching the defendant, the officer was injured by a needle. The High Court held that the defendant was convicted of assault not by a positive act but by his omission. The defendant’s reckless dishonest assurance exposed a reasonably foreseeable risk of injury for the officer which materialised. As Elliot and Ormerod note, in both Miller and Santana-Bermudez, the court determined the scope of liability for omissions by asking: but for the defendant’s omission, would damage or assault occur? Like contractual duties, it is in the public interest to prosecute those who are bound by this exceptional category of duty to remedy an initiated dangerous situation or serious consequence.
In absences of the ‘core categories of relationships’ and duties, there is no general duty of easy rescue in common law; despite the social responsibility view coined by Ashworth that support conviction for failing to intervene, when necessary to prevent the occurence of a serious harm, criminal liability for omissions cannot be legitimately be extended beyond legal duties. Unlike civil law systems with a history of Good Samaritan laws, English law strives to protect individual liberty and autonomy. On the surface, Ashworth’s view appear to be more conductive to public interest. However, it is key to highlight that criminal law ought to punish guilty acts or omissions and not ‘immoral’ character. The common shallow pool example by Stephen illustrate that if a passerby sees a child drowning and did not help, he commits no offence as he did not drown the child; ex hypothesi, the child would have drowned. What if there were multiple bystanders? The duty of easy rescue, morally persuasive as it is, in the event when there are multiple bystanders who did not act, selecting someone as a candidate for prosecution could constitute the thin end of an authoritarian wedge. In answering how legitimately liability can be extended for omissions, the inevitable casual uncertainties and the vagueness of bad Samaritan laws produce a risk that juries may punish people for just being ‘soulless’ rather than what occured on a specific occasion, undermining liberty and the rule of law by transferring effective power to officials and risking punishing the innocents. Although there are good arguments to impose citizenship duties, ensuring consistency and striking a balance between recognising certain duties of citizenship and recognising the limits on what it is fair to ask of citizens is challenging and farfetched. Since the legitimate extension of omissions liability to the general duty of rescue calls for much greater justification, liability for omissions should only be imposed where the defendant has a legal duty to act and fails to do so.
Conclusively, addressing the real question of how far liability for omissions can be legitimately be extended manifests the ‘undesirable complexity’ courts face when determining whether one can be found guilty for doing nothing and the scope and standard of relational and situational duty in each case.To extend liability for omissions, state’s coercive powers can only be legitimately invoked in response to emissions by those with statutory and ‘judge-made’ duties. Nevertheless, the common law prides itself in its flexibility; so long as proper attention is paid to individual freedom, liberty, and the ‘rule of law’, the requirements and boundaries of omissions liability can be legitimately be extended to serve the common good but this would require further debate and elucidation.