The assessment is to evaluate the accuracy of the following statement with reference to situation where a failure to act may result in criminal liability. The statement is ''imposing criminal liability for omission is inconsistent with the principle of autonomy, the principle of legality and the harm principle''. Under the English criminal law, the general rule is that there can be liability for doing some act but not for omission or failure to act. The House of Lords in the case of Airedale NHS V Bland , stated that there can be no liability for omission or failure to do some act. In general for imposing criminal liability the law wants some positive act to be done .
Imposing criminal liability for omission or failure to do some act may violate the principle of autonomy. One person cannot expect that other will put his own life at danger for another person. This is known as principal of autonomy ''which allows one individual to live his life in accordance with his own wishes'' . The criminal law requires that no one should interfere with another person's autonomy principle. Also the principle of legality requires that: ''the criminal law can impose liability on a person with sufficient clarity and specificity to respect the principle of fair warning'' . If liability for omission is frequently allowed then this might be a violation of the principle of legality, principle of autonomy and the harm principle.
However, the common law and parliament have developed some specific situations where imposing criminal liability for omission could be justified. At present the English criminal law is allowing liability for failure to act where the offences is capable of being committed by omission and the person who failed to do some act was under a legal duty to act either at common law or statute. The court in the case of Gibbins and Proctor stated that: ''the offence murder and gross negligence manslaughter could be committed by omission'' . But the court in case of Lowe held that offences like assault and unlawful act manslaughter couldn’t be committed for failure to act.
The English criminal law allowed imposing criminal liability for omission in the following situations. The first situation where the English criminal law is allowing liability for omission is where the defendant owe a duty to victim based on special relationship. In the case of Gibbons and Proctor , the court held that parents will be liable for the death of their daughter as there is a special relationship between parents and children and therefore parents owe a duty of care to their daughter. Such special relationship could be between husband and wife. The court in this case by providing judgment confirmed the existence of the exception laid down in the Child and Young Persons Act 1933 . In the case of R V Instan , defendant lived with her aunt. Her aunt became ill and unable to feed herself or call for help. In this case defendant did not give her any food and did not call doctor for medical help. The court held that defendant was liable for manslaughter. Similarly in the case of R V Stone and Dobinson , defendants Stone and Dobinson was liable for manslaughter as they failed to failed to take care of victim Fanny after assuming responsibility for victim.
Another situation where the English criminal law is allowing liability for omission is where the defendant owe a duty to victim based on contractual duty. This was explicitly described in the case of R V Pittwood . In this case the defendant was bound under the contract to operate a level crossing at a railway. The defendant omitted to close railway gate when a train was coming. As a result the approaching train struck the car. The court held that defendant was under a contractual duty to operate the level carefully but he failed to do so. Therefore he will be liable for gross negligent manslaughter. Imposing such liability on defendant could be justified because he was paid for carrying out his duty but he failed.
Again the defendant will be liable for omission where he fails to prevent a risk which he created. This was illustrated in the case of R V Miller . In this case the defendant while smoking a cigarette fell asleep on his mattress. When defendant saw that his cigarette causes fire on mattress he moved into another room instead of calling others for help. As a result the fire spread up. The court held that, the defendant was liable for criminal damage by arson not because of starting the fire but because of failing to prevent the fire from spreading.
In the case of R V Adomako, the court held that in order to impose liability for gross negligence manslaughter, the defendant must owe a duty of care . In R V Khan and Khan, defendants left a woman in their flat who took too much drug. When they came back, they found that woman had died. The court held that ''the defendant were convicted of gross negligence manslaughter, or as the trial judge called it, ''manslaughter by omission'' . This case permits courts to extend duty situations when the court think appropriate. The court also in the case of R V Evans expressed the view that there defendant knows the risk, he owe a duty to mitigate such risk or owe a duty to call other's for help. The decision of R V Evans was justified on the basis of morality grounds.
Most of the situations of omissions are developed by common law. There are some offences under Act of Parliaments where liability could be imposed for omission. For example Road Traffic Act 1988 and Domestic Violence, Crime and Victims Act 2004. Under the Road Traffic Act 1988, failure to give a breath sample when required is an offence . This is because of allowing the law of omission by parliament. Also under the Domestic Violence, Crime and Victims Act 2004 , defendant will be liable for his omission, where his omission allows death of a child.
From the above discussion it is apparent that there are certain situations where English criminal law is allowing imposing liability for omission. It is also clear that imposing liability based on omission seems inconsistent with the some basic rules of criminal law. The omission law is inconsistent with the principle of autonomy, the principle of legality and the harm principle. As the law of omission imposes liability on a person, even where he is not doing any act or causing harm to another rather just because of failure to do act. Catherine Elliot stated that the reluctance for imposing liability on the basis of omission could open up the floodgates of arguments. Such reluctance may bring a large number of public into the risk of prosecution. Therefore, liability for omission could only be imposed where the common law rules are satisfied and such liability could be justified on the basis of morality.
In this question, I am asked to advise Andy and Beth as to their criminal liability, if any. The possible criminal liability of Andy is Assault and Criminal Damage for screaming on Beth and burning her autobiography. Andy may also be liable for failure to prevent the fire from spreading to other piles of books in the warehouse. On the other hand, the possible criminal liability of Beth is Criminal Damage for smashing a nearby glass cabinet throw a brick.
Here, Andy screams on Beth and stated that he will burn every last copy of her books. In this regard, Andy might be liable for committing assault. An assault is committed when an accused intentionally or recklessly causes another to apprehend immediate and unlawful violence. It is apparent from the given fact that, although Andy screams on Beth, Beth did not apprehend immediate and unlawful violence, rather she laugh at Andy. Therefore, it can be said that Andy will not be liable for committing assault.
When Andy told Beth that 'I will make sure that no-one sees that book, even if I have to burn every last copy', he might be charged under s. 2(1) of Criminal Damage Act 1971, as Andy gives threats to destroy or damage property of Beth. However, in our case Andy will not be liable because Beth did not feared that her property might be destroyed by Andy.
Later, Andy goes directly from Beth' s house to the publisher's warehouse with a can of petrol. Andy quickly finds Beth's autobiography, douses the books in petrol and sets the pile on fire. In this respect, Andy may be liable for committing Criminal damage by arson under s. 1(3) of the Criminal Damage Act 1971 . S.1(3) of this Act stated that: ''where a person damaging property of another by fire shall be charged as arson'' . The actus reus of this offence is damaging or destroying another's property by arson without lawful excuse. In the case of Samuels V Stubbs, Walters J stated that: ''to constitute damage it is not necessary to establish actual damage of the property which renders the property useless'' . Also the case Roe V Kingerlee stated that, what amounts to criminal damage is a matter of fact. It is clear from the given scenario that Andy burn Beth's autobiography. So the actus reus of this offence is completed.
The men rea of this offence is intention or subjective type of recklessness. In this case, it is apparent that Andy had intention to damage the books of Beth's. So it is likely that Andy will be liable for committing criminal damage by arson under s.1(3) of the Criminal Damage Act 1971.
The fact also stated that, when the fire spreads to other piles of books in the warehouse, Andy panics and runs off. In this regard, Andy may be liable for failure to prevent the fire from spreading to other piles of books in the warehouse. Generally, there is no liability for an omission to act.
However omission will amount to the actus rues of an offence only if: the crime charged is capable of commission by omission and where the person (defendant) is under a legal duty to act and breach of such duty causing the result.
In our fact the crime charged is likely to be criminal damage by arson as he burned other's books. There are some offences which cannot be committed include unlawful act manslaughter and assault. However, most of the offences can be committed by omission. These include murder, gross negligence manslaughter, theft, fraud and criminal damage.
In our case the offence under s.1(3) of the Criminal Damage Act 1971 is likely to be capable of committed by omission. It is apparent from the fact that Andy had committed the actus reus of the offence. The men rea of this offence is intention or recklessness. In this case Andy did not have any intention to damage the other's books which were in the warehouse. The House of Lords in the case of R V G and Another stated that, the defendant must realise that he was creating a risk of damage. In this case it is clear that Andy did seem to have realised some risk of damage to the other's books which were in the warehouse.
Assuming that a s.1(3) offence is committed and it is capable of committed by omission. The question is whether Andy was under a legal duty to act and failed to act according to reasonable standard. In our fact Andy's legal duty to act may arise from failing to avoid danger of his own making. In the case of R V Miller it was stated that: ''where a defendant unintentionally created danger, he must have a duty to take reasonable steps to minimise such danger or harm'' . In R V Miller, defendant allowed the fire to spread instead of calling for help. The Court held that, defendant was liable not because of starting the fire but for failing to do anything about it. So, if we apply this principle into our given fact, it is possible to argue that Andy was under a legal duty to take some reasonable steps to prevent the fire from spreading. Andy must take steps to prevent the fire from spreading, as he created the danger. In our fact Andy failed to take such steps. Therefore, Andy will be liable under s.1(3) for his omission as he failed to avoid danger of his own making.
The fact also stated that, Beth Picks up a brick and smashes a nearby glass cabinet that is protected by a burglar alarm because it contains a valuable first edition of 'A Christmas Carol' by Charles Dickins. In his respect Beth might be liable for committing criminal damage under s. 1(1) of the Criminal Damage Act 1971. S.1(1) of the Criminal Damage Act 1971 stated that: ''a person who without lawful excuse, intentionally or recklessly destroys or damages property belonging to another shall be guilty of an offence'' . It is apparent from the fact that Beth committed the actus rues of the offence, as he smashes a nearby glass cabinet which belongs to Charles Dickins. The men rea of this offence is intention or subjective type of recklessness. In this case, it is clear that Beth had intention to commit criminal damage as she smashes a glass through brick. Therefore, Beth will be liable under s.1(1) of the Criminal Damage Act 1971.
However, Beth may rely on lawful excuse as a defence of criminal damage. If Beth successfully argue that she had lawful excuse to commit such damage, then she might be discharged from her liability. Beth may rely on s.5 (2) (a) of the Criminal Damage Act 1971. S. 5 (2) (a) stated that ''if defendant believes that, other person will give consent to the damage or destruction if he knew the circumstances then the defendant will not be liable for such damage or destruction'' . In order to rely on this defence Beth must honestly believed that the owner of Christmas Carol would have consented when he known the true facts. The belief must be honest . In our case it is possible to said that Beth will be able to successfully rely on this defence. Beth had honestly believed that the owner of Christmas Carol would have consented. Therefore, Beth might be discharged from the liability of criminal damage.
The parties are advised above.
Bibliography:
Cases:
• Airedale NHS Trust V Bland [1993] 1 All ER 821
• R V Gibbons & Proctor (1918) 13 Cr App R 134
• R V Stone and Dobinson [1977] QB 354
• R V Instan [1893] 1 QB 450
• R V Pittwood (1902) 19 TLR 37
• R V Miller [1983] 2 AC 161
• R V Evans [2009] 1 WLR 1999
• R V Khan & Khan [1998] Crim LR 830
• R V Adomako [1995] 1 AC 171
• Samuels V Stubbs [1972] 4 SASR 200 at 203
• Roe V Kingerlee [1986] Crim LR 735
• R V G and Another [2003] 4 All ER 765
Statute:
Criminal Damage Act 1971
Road Traffic Act 1988
Domestic Violence, Crime and Victims Act 2004
Child and Young Persons Act 1933
Books:
C Elliott and Q Frances, Criminal Law (9th edn, Pearson Publication 2012)
Smith and Hogan, Criminal Law (12th edn, Oxford University Press 2008)