Essay Plan: "The criminal law sometimes criminalises omissions; it also occasionally criminalises involuntary acts. This is regrettable."

Introduction

• Focus: The essay will explore whether the criminalisation of omissions and involuntary acts in criminal law is regrettable, considering specific doctrines such as omissions liability, gross negligence manslaughter, and indirect intention.

• Thesis: While the criminalisation of certain omissions and involuntary acts can be justified, the law’s current approach—especially in relation to the scope and application of these principles—can be problematic and, in some instances, regrettable.

Paragraph 1: Criminalisation of Omissions

• General Rule and Exceptions:

◦ There is no general duty to act in UK common law, but exceptions exist where liability for omissions is imposed. This includes situations where there is a contractual duty, a duty imposed by law, or a statutory duty.

◦ Contractual Duties:

▪ R v Pittwood (1902): The defendant was convicted of manslaughter for failing to perform a contractual duty, resulting in a death. This type of omission is not regrettable as it upholds justice by ensuring that individuals fulfil their legal obligations.

◦ Duty Imposed by Law:

▪ R v Evans (2009): The defendant was convicted because she failed to seek medical help for her sister, leading to death. The case demonstrates the wide and uncertain scope of the duty of care imposed by law, which is problematic and regrettable.

▪ Problematic Cases:

▪ R v Bowditch: A man was convicted of manslaughter after failing to rescue a woman he had just met, illustrating how tenuous and broad the duty of care can be.

▪ R v Broughton (2020): The defendant’s charge of gross negligence manslaughter was overturned despite clear evidence of negligence, highlighting the inconsistency and uncertainty in the application of the law.

Paragraph 2: Gross Negligence Manslaughter

• Principle and Application:

◦ The doctrine of gross negligence manslaughter, as outlined in R v Adomako (1995), is based on a duty of care, breach of that duty, causation of death, and grossness of the breach.

◦ Criticism of Vagueness:

▪ R v Misra (2005): The case revealed the vagueness of the “grossness” requirement, which has been criticised for lacking clarity and conflicting with the principle of legality under Article 7 of the ECHR.

▪ The application of gross negligence manslaughter in cases like Misra also raises concerns under Article 6, as it often involves applying broad legal principles without clear, case-specific reasoning.

▪ Scholarly Criticism:

▪ Jeremy Horder has argued that the law creates a “distinction without difference,” meaning that the threshold for gross negligence is so unclear that it effectively blurs the lines between negligence and criminal liability.

Paragraph 3: Indirect Intention

• Concept and Issues:

◦ Indirect or oblique intention refers to situations where a defendant’s primary aim is not to cause a particular outcome, but that outcome is a virtually certain consequence of their actions.

◦ Historical Development:

▪ DPP v Smith (1961) and R v Hyam (1975): Early cases where foresight of consequences was equated with intention, leading to criticisms of over-criminalisation.

▪ R v Moloney (1985): Attempted to narrow this by distinguishing between intention and mere foresight, but the law remained problematic.

▪ R v Hancock & Shankland (1986), R v Nedrick (1986), and R v Woollin (1998): These cases refined the test for indirect intention, focusing on whether death or serious harm was a virtual certainty and whether the defendant foresaw it as such.

▪ Horder’s Moral Elbow:

▪ Horder argues that the law should allow for "moral elbow room" in determining intention, recognising that there are degrees of moral culpability that the current law does not adequately address.

Conclusion

• Summary: The criminalisation of omissions and involuntary acts in criminal law serves important functions in ensuring justice and accountability. However, the broad and inconsistent application of these principles—particularly in relation to duty of care in omissions, gross negligence manslaughter, and indirect intention—can lead to regrettable outcomes.

• Final Argument: While the law’s intentions are commendable, there is a need for greater clarity, consistency, and refinement to avoid unjust convictions and ensure that criminal liability is fairly imposed.

Sample Paragraphs

This paragraph will discuss whether the criminalisation of some omissions are regrettable. There is no general liability in UK common law for a failure to act. However, the law has allowed some exceptions such as when the defendant: has a contractual duty, duty imposed by law or a statutory duty. We will begin by arguing that this is not regrettable through liability for failure to act when one owes a contractual duty. The Pittwood 1902 case involved the defendant who had a contractual duty to lift the gate to allow carts to pass through. He failed to put the gate back down which resulted in the victims death as he was passing through. He was rightly convicted of manslaughter because he had a duty to perform and failed. This is one example of the law allowing omissions which are not regrettable but uphold justice. However, the exception of a duty imposed by law has an unnecessarily wide scope which is regrettable. The case of Evans 2009, where the defendant owed a duty of care to her sister (victim) because she failed to call medical services and this resulted in her death, left the law in an uncertain place because questioned to what degree of relationship needs to be established to find a duty of care. R v Bowditch involved a man (defendant) and a woman (victim) who met at a nightclub and went to the sea together. She fell in and he failed to save her which resulted in him being convicted of manslaughter. A duty of care was narrowly established through stating that they engaged in a risky enterprise together and so had undertaken a duty to look after each other. This is regrettable and has caused great uncertainty which can be highlighted in the R v Broughten 2020 case. In this case, the girlfriend (victim) takes drugs and dies. The boyfriend (defendant) fails to call medical services, which if he did she would have had a ninety percent chance of survival. His charge of gross negligence manslaughter was overturned. The defendant had in fact recorded the victim deteriorating over a five to six hour period which calls into question whether there should be a general liability for omissions. However, the problem is not with the application of the law, it is with the law itself. The unnecessarily wide scope it has created is regrettable.

The occasional criminalisation of the involuntary act of gross negligence manslaughter will be discussed with regards to whether this is regrettable. Lord Mackay, in Adomako 1995, outlined that the following factors must be shown to convict the defendant for gross negligence manslaughter: the defendant owed a duty of care, there was a breach of this duty which caused the victim’s death, it was an obvious risk of death if breached and it was so gross to justify conviction. The application of this principle has been regrettable which can be demonstrated in the R v Misra 2005 case. The patient (victim) suffered a infection which remained undiagnosed resulting in the victim dying of toxic shock. The two doctors (defendants) had failed to inquire about results and conduct blood tests which if completed would have shown the victim’s status. They were convicted of gross negligence manslaughter. One argument against this is that it was inconsistent with article seven of the ECHR. The doctors had a right to know if there actions are grossly negligent and the requirement are too vague. This argument was dismissed on the grounds that they only demanded sufficient, not absolute certainty (the degree of vagueness was acceptable). This conflicts with the principle of legality, proportionality and fair labelling because of the vagueness and lack of clarity surrounding the law. It is also inconsistent with article six because the court was simply applying a principle of law rather than formulating a reasoned and case-specific judgement. This has led many legal scholars to criticise this principle such as Jeremy Horder who commented that the law has made a ‘distinction without difference’. This is regrettable due to the nature