Essay Plan: Omissions question

Essay Plan: Omissions question

Essay Plan: ‘There are so many exceptions to the rule that a person cannot be criminally liable for omitting to act that it would be better to admit that there is no such rule and to enforce a general liability for failing to rescue others from imminent harm.’

Introduction

• Focus: Examines the rule against criminal liability for omissions, the various exceptions to this rule, and whether a general liability for failing to rescue others from imminent harm should be adopted.

• Thesis: While there are numerous exceptions to the rule against liability for omissions, enforcing a general liability for failing to rescue others could blur the line between legal and moral obligations and might not be the best solution.

• Overview:

◦ Current Exceptions: Liability for omissions exists in specific circumstances, such as contractual duties, legal duties, creating dangerous situations, and duties of care.

◦ Duty of Care:

▪ R v Stone and Dobinson (1977): Defendants were held liable for gross negligence manslaughter due to a duty of care, despite not being close family.

▪ R v Bowditch (2005): Extended the duty of care, imposing liability on individuals who engaged in risky behaviour together, even without a familial relationship.

◦ Critique:

▪ Expansion of Liability: Such cases stretch the concept of duty of care, potentially leading to excessive liability for omissions.

▪ Harm Principle: Imposes a positive act to cause harm, whereas the proposed general liability would extend to omissions.

▪ Moral vs. Legal Reprehensibility: General liability would blend legal obligations with moral judgments, potentially leading to unfair legal consequences.

◦ Conclusion: Maintaining separate legal and moral considerations helps prevent the legal system from becoming overly intrusive into personal responsibilities.

Paragraph 2: Intrinsic Worth of Humans Argument

• Overview:

◦ Intrinsic Worth: The notion that human life has intrinsic value might justify imposing certain duties to protect others.

◦ Contractual Duty:

▪ Pittwood (1902): Established that failing to fulfil a contractual duty, leading to harm, can be criminally liable.

◦ Misconduct in Public Office:

▪ R v Dytham (1979): Held a police officer liable for neglecting to intervene in a public altercation, reflecting a duty inherent in public office.

◦ Critique:

▪ Intrinsic Worth: While valuing human life is crucial, enforcing a general liability might be impractical and counterproductive.

▪ Resource Allocation: Joe Ellin argues that obliging individuals to rescue others could lead to undue strain and unintended negative consequences.

Paragraph 3: Citizenship Argument

• Overview:

◦ Citizenship Duty:

▪ Steven Heyman: Advocates for general liability based on the notion that citizens have a duty to protect each other as part of their civic responsibilities.

◦ Dangerous Situations:

▪ Miller (1983) and Santana Bermudez (2003): Established that creating a dangerous situation and failing to rectify it can lead to liability.

◦ Continuing Acts:

▪ Speck (2004): Discussed the concept of continuing acts, where the failure to act continues the criminal conduct, although it was contested.

◦ Critique:

▪ General Liability: Enforcing such a broad rule could overwhelm the legal system and fail to address the nuances of individual cases.

▪ Healthcare Implications: Airdale NHS Trust v Bland (1993) explored omissions in a healthcare context, which should be approached cautiously to avoid undue burden on resources.

Conclusion

• Summary: The rule against criminal liability for omissions is nuanced and designed to handle specific exceptions where a duty to act exists. While there is a rationale for considering a general liability based on moral and civic duties, such a reform could blur the lines between legal and moral obligations, leading to impractical and potentially unjust outcomes.

• Recommendation: Maintain the current rule with its exceptions but ensure clear and reasonable criteria for when omissions lead to liability, avoiding the pitfalls of a blanket general liability.

Sample Paragraphs

The enforcement of a general liability for failing to rescue others from immanent harm would be dangerous because it would blur the lines between legal and moral reprehensibility. Although there are so many exceptions, this is to cater for specific circumstantial and contextual events in society. For example, one could be liable for an omission if they have a duty of care. In R v Stone and Dobinson, the defendants failed to look after and feed Stone’s sister which resulted in her death. They were liable for gross negligence manslaughter because they had a duty of care to look after her sister. In this case, they were not the victims parents and had no legal hold over the child which is why the statement of discussion suggests bringing about a general liability because there seems to be a very wide scope for duties of care that are argued somewhat unconvincingly. Furthermore, the case of R v Bowditch highlights this point. Here, the defendant met a woman (victim) at a nightclub. They later went to the beach together, where she fell in and died. The defendant was liable of gross negligence because they embarked on a risky enterprise together and therefore had a duty of care to look after each other. Firstly, this stretched the liability for omission even further, where the duty of care didn’t require a close relationship, no familial or temporal link necessarily required. Secondly, this is problematic because it conflicts with the harm principle, which requires a positive act which harms somebody. Choice theorists would disagree with allowing a duty of care of this kind to amount to liability. Although the liability for omissions where the defendant owes a duty of care is already very wide, a general liability would open the floodgates as there would be no control mechanisms restricting claims of omission. Fundamentally, to allow a general liability would be to blur the line between moral and legal reprehensibility which would be unwise.