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.”

The statement suggests that the law should abandon the general principle that there is no criminal liability for omissions and instead impose a general liability to rescue others from imminent harm. This essay will discuss the merits and drawbacks of this suggestion, considering the current exceptions to the omission rule and the potential implications of a general liability rule.

Paragraph 1: Disagreeing with the Need for a General Liability Rule

Current Exceptions to the Rule Against Omissions:

• Statutory Duties:

◦ Failure to Provide a Breath Sample: Under the Road Traffic Act 1988, section 6, individuals are criminally liable for failing to provide a breath sample when required. This example demonstrates a specific statutory duty where omission is criminalised.

• Contractual Duties:

◦ R v Pittwood (1902): The defendant was found liable for manslaughter due to his failure to fulfil a contractual duty to close a railway crossing gate, leading to a fatal accident. This case illustrates how contractual duties can create criminal liability for omissions.

• Duties Imposed by Law:

◦ General Scope: The law has developed a range of specific scenarios where a duty to act exists, such as in cases of creating dangerous situations or assuming responsibility for others.

Clarity and Development:

• Established Framework: The law has established clear frameworks for when omissions can lead to liability. The exceptions are designed to address specific and important situations, suggesting that the current legal framework is adequate for addressing most cases of omissions.

Paragraph 2: Agreeing with the Need for Reform

Complexity and Issues with Current Exceptions:

• Duty Imposed by Law:

◦ Creating a Dangerous Situation: In R v Miller (1983), the defendant was found liable for failing to take action after creating a dangerous situation (a fire). However, this duty is often seen as limited and context-specific, creating confusion.

◦ Assumption of Responsibility: R v Stone and Dobinson (1977) held that assuming responsibility for another person can lead to criminal liability for omissions. This principle is not always straightforward and may not cover all situations where help is needed.

◦ Misconduct in Public Office: R v Dytham (1979) involved a police officer who failed to act in the face of a serious assault, leading to a conviction for misconduct in public office. This exception illustrates how public duties can create liability but also highlights the narrow scope of this exception.

◦ Part of a Continuing Act: R v Fagan (1969) established that a continuing act can lead to liability for omissions. However, this principle is limited to specific contexts where the act and omission are closely related.

Gaps in Current Framework:

• Cases Like Santana-Bermudez: In this case, the defendant's failure to disclose a needle to a police officer who was injured by it highlighted the complexities of imposing liability for omissions. Similarly, Airedale NHS Trust v Bland (1993) involved the cessation of life support and raised issues about the boundaries of omission liability.

Paragraph 3: Challenges of Implementing General Liability

Potential Issues with a General Liability Rule:

• Widening Scope and Uncertainty:

◦ Increased Liability: Imposing a general liability for omissions could significantly widen the scope of criminal responsibility. It would create uncertainty about when failure to act constitutes a criminal offence, potentially leading to overly broad applications.

◦ Practical Concerns: Dressler argues that such a rule could lead to more dangerous situations, as people might feel compelled to act even when their actions could be harmful or inadequate. This might result in unintended consequences and complications.

Specific Scenarios:

• Reasonableness of Action: A general liability rule must consider whether it is reasonable for a person to act in a given situation. Factors such as the risk involved and the individual's capacity to act need to be addressed, which complicates the enforcement of such a rule.

• Intoxication and Mental State: The impact of intoxication or mental health issues on the ability to act can complicate the imposition of general liability. Determining when someone’s failure to act is criminally liable in these contexts would be challenging and could lead to inconsistent application.

Conclusion

The suggestion to impose a general liability for failing to rescue others from imminent harm addresses some of the limitations and complexities of the current law on omissions. However, while the current framework has exceptions that can sometimes be confusing or inadequate, a broad general liability rule could introduce significant uncertainty and practical difficulties. It would be more prudent to refine and clarify the existing exceptions and ensure that any new rules take into account the reasonableness of the required action and the individual’s circumstances, including intoxication and mental state. This balanced approach would help maintain the effectiveness of criminal law while addressing the gaps in the current system.