A Critical Analysis of the Criminalisation of Omissions

Introduction

This essay aims to critically analyse the place of omissions within the criminal law, which traditionally has primarily focused on acts of commission which result in harm to another. However, in certain circumstances, it can penalise an act of omission, which is ‘something which is not done in circumstances where there is some reason or expectation for that thing to be done’.^[1] This essay aims to assess the circumstances where such an expectation is held by the justice system. The common law generally imposes such a duty to act in four specific circumstances: where the defendant is a public servant, has a familial relationship to the victim, voluntarily assumed responsibility for the victim or created the danger to the victim.^[2] In all other circumstances, there is generally no duty to act, even when it would be morally reprehensible to fail to do so. For example, an able-bodied person who does not attempt to save a drowning baby is not a murderer in the eyes of the law.  In some other jurisdictions, attempts have been made to impose a duty to help others in the form of ‘Good Samaritan’ laws.  This essay will also examine their application in continental jurisdictions.

Familial Relationship

As mentioned above, there are limited circumstances where criminal law imposes a duty to act. Perhaps the most obvious of these is when there is a familial relationship between parties. One of the earlier examples of this is R v Senior,^[3] where a father was found guilty of manslaughter for refusing medication to treat his son’s pneumonia because of his religious beliefs. The rationale here is pragmatic. As a father, it is his fundamental duty to keep his son alive; by refusing to seek medical help, he was as responsible for his son’s death as the ailment that killed him.  This was somewhat contradicted decades later in R v Lowe,^[4] when a father of low intelligence was acquitted of manslaughter. His daughter died after he failed to call a doctor; here, the rationale being that he had not foreseen the consequences of this failure. It is submitted this argument is overly cautious in its unwillingness to criminalise an omission, suggesting that parents caring for infants do not have a duty to know when to call for medical help. While this judgment was influenced by the low intelligence of both the father and the mother, surely such knowledge is a non-derogable requirement of parenthood, and as Mr Lowe had had children taken from him before,  he ought to have been even more vigilant in the circumstances.

The reverse relationship was considered in DPP v Joel,^[5] where a mother with MS died whilst living in the home of her daughter and her daughter’s partner. She was poorly cared for and developed infected bedsores as a result of her condition. She contracted pneumonia and passed away after being taken to hospital for treatment. The daughter was found to have been negligent in the care of her mother, however questions raised concerning the negligence of the HSE lead to no conviction for the mother’s death. The prosecution also failed to prove that the daughter’s partner owed the mother a duty of care in this case. This particular case is interesting due to the family dynamic it encompasses. While parents have a natural responsibility to care for their underage children, there is a debate to be had on whether children have a responsibility to care for their parents, and whether that responsibility is a natural or legal one. In this case, neither the daughter nor her partner wanted the mother in their home. There is an argument to be made that the law should not impose a duty of care on them where they had no choice in the matter.

Public Service

Omissions are also penalised when the defendant is a public servant, as these people have duties to safeguard the public and their failure to do so can have very serious consequences. One harrowing Irish example is DPP v Bartley,^[6] where a woman endured sexual abuse by her stepbrother for 25 years after her complaint to a Garda was ignored. The Garda was ultimately found to have failed in their duty to investigate all credible claims. The earlier case, R. v Dytham,^[7] was cited as a precedent, where a police officer was convicted of misconduct in a public office for watching a man be beaten to death and not intervening. Both these cases establish the important precedent that police officers have a duty of care to all of society, and because of the high-stakes nature of their work, failing to act when they clearly should have acted can lead to criminal convictions. This ensures that they feel obliged to perform their job correctly and comprehensively and that the public receives the protection  they deserve.

Creation of Danger

One of the more abstract conditions where an individual can be held criminally liable for an omission is in a situation where they created a danger to others. In R v Miller,^[8] the House of Lords found the defendant guilty of arson by omission. He had fallen asleep with a cigarette in his hand, woken up to find the mattress on fire, and instead of making an effort to put the fire out, moved to another room and allowed the building to be damaged. This established a common-sense precedent that a person who creates a danger is under a legal duty to alleviate the effects of that danger. The Court of Appeal extended this principle in R v Evans,^[9] where they upheld a manslaughter conviction. The defendant had acquired heroin for her sister on which she overdosed and died, but both she and her mother did not seek medical help for fear of legal trouble. They found that an individual who contributes to a life-threatening state of affairs has a duty to take reasonable steps to save the other’s life. These rulings are not consistent with the emphasis put on autonomy and free will in criminal law,^[10] but nonetheless, they are justified. In both of these cases, the defendants acted callously in failing to mitigate danger and prevent serious harm to others when they could have easily done so. In the interest of the common good, such negligent behaviour must be criminalised.

Voluntary Assumption of Duty

Perhaps the most unclear criminalisation of omissions comes in the form of voluntary assumptions of duty. In R v Gibbins and Proctor,^[11] the first defendant left his wife and brought his children with him to live with the second defendant. The second defendant deprived one of his daughters of food and allowed her to starve to death, and both were ultimately convicted of murder. Even though the second defendant was not related to the deceased, she had acted as her mother and therefore owed her a duty of care. In R v Stone and Dobinson^[12] the first defendant’s sister, who rented a room from him, died after living in squalor. Both he and the second defendant, his mistress-cum-housemaid, were convicted of manslaughter. As she had washed and provided food for the deceased, as well as attempted to summon a doctor, the second defendant had voluntarily assumed a duty of care. There is a grey area here regarding the liability of the second defendant. It may be argued that due to the lack of a concrete relationship between her and the deceased, as well her bona fide efforts to care for the deceased, she should not have been responsible for her death.

The principle of voluntary assumption of duty was arguably extended too far in the case of R v Taktak.^[13] The defendant had brought a prostitute, who was nearly unconscious when he collected her, to his heroin dealer’s home, where he tried to help her but did not call a doctor. When the dealer arrived, he called a doctor, who pronounced the prostitute dead. It was found that the defendant had assumed a duty of care for her as, by bringing her to the dealer’s home, there was no chance of anyone else helping her. This is a tentative argument, as the defendant had no prior relationship with the woman. It is predicated on the assumption that, had he not collected her, a passer-by would have gotten medical assistance for her. This is a worryingly broad interpretation of a voluntary assumption of duty to a stranger. Will the courts one day impose the duty to call an ambulance on said passers-by? Any further extension of Taktak would be moving beyond the realm of administering justice and verging on infringing on individual liberty and autonomy.

Duty to Rescue and Duty to Act – An Alternative?

One of the proposed alternatives to this dilemma that we have seen in other jurisdictions, such as in France and Germany, is the imposition of so-called ‘Good Samaritan’ laws. These laws range from imposing a duty to rescue someone in peril to imposing a duty to act to prevent a crime. Both jurisdictions impose a ‘duty to rescue’ incurring a penalty of imprisonment or a fine. Section 323(c) of the German Criminal Code mandates assisting in the case of an accident, danger or emergency where it would not endanger oneself, while Article 223(6) of the French Penal Code requires offering assistance to a person in danger where it would not endanger oneself. It is submitted that the German laws in this area are fairer and less imposing on the general public than the French equivalents. The German duty to rescue, unlike the French, hinges on necessity in a manner analogous to the requirement for causation in the tort of negligence, as well as reasonability. Failing the French duty, on the other hand, does not require that your failure to help a person in danger actually had harmful consequences, or proof that your assistance would have been successful.^[14]

Germany has an interesting approach to a ‘duty to act’. The official English translation of section 13 of the German Criminal Code sets out not a duty to act, but rather a penalty for ‘whoever fails to prevent a result which is an element of a criminal provision (...) if they are legally responsible for ensuring that the result does not occur and if the omission is equivalent to the [commission of] the offence through a positive act’. This provision is much more limited in scope than a more generic ‘duty to act’, while still achieving the desired result. It essentially imposes a duty to act only on parties with some degree of responsibility for would-be criminals.^[15] More importantly, this duty is only breached should the crime actually occur, and where failing to prevent the crime is morally reprehensible enough to be equivalent to actually committing the crime oneself.^[16] Opponents of these laws in other jurisdictions argue that the many nuances involved in the decision to undertake a rescue would make a failure to rescue difficult to prosecute. The potential rescuer may have only a split-second to assess their capabilities to perform a rescue and the danger they may face in doing so.^[17] In any serious attempt to deal with rescuers under the law, courts would need to adopt a subjective test as to the difficulty of the rescue from the rescuer’s perspective at the time.^[18]  It is submitted that the German provision here is effectual, but no more so than the current state of the common law.

Conclusion

Using a literal interpretation of actus reus, no omission could constitute a crime. However, the courts have correctly adopted a pragmatic, albeit cautious, approach to situations where a person’s failure to act should be considered criminal. In some of the cases mentioned above, particularly those where people have sat back and allowed their family members to die from neglect, there can be no doubt that the severity of a criminal conviction is deserved. This desire to issue just rulings must be carefully balanced with the fundamental legal principles of individual liberty and autonomy. Good morals cannot and must not be mandated by the judiciary. Legislative attempts to impose a duty to help others may be well-meaning, but to be effectual, they would have to be no more broad in scope than the current state of the common law. In Germany we have seen a more practical approach when compared to the paternalistic approach taken by France. Only those most heinous omissions should be criminalised, and even then only in situations where the person in question had a clear duty to act, be it as a result of their behaviour, their profession or their close relationship to those affected by their omission.

 

[1] A P Simester, ‘Why Omissions are Special’ (1995) 1 LEG 311.

[2] Conor Hanly, An Introduction to Irish Criminal Law (3rd edn, Gill & Macmillan 2015) 59.

[3] [1989] 1 QB 283.

[4] [1973] 1 QB 702.

[5] [2016] IECA 120.

[6] [1997] 6 JIC 1301.

[7] [1979] 1 QB 722.

[8] [1983] 2 AC 161.

[9] [2009] 1 WLR 1999.

[10] Hanly (n 2) 57.

[11] [1918] 13 CrAppR 134.

[12] [1977] 1 QB 354.

[13] [1988] 34 ACR 334.

[14] Andrew Ashworth and Eva Steiner, 'Criminal Omissions and Public Duties: The French Experience' (1990) 10 LS 153

[15] George P Fletcher, 'Criminal Omissions: Some Perspectives' (1976) 24 AJCL 703.

[16] ibid.

[17] Gavin Dingwall and Alisdair A Gillespie, 'Reconsidering the Good Samaritan: A Duty to Rescue' (2008) 39 Cambrian L Rev 26.

[18] ibid.