- List the elements of a crime.
- Define the criminal act element.
- Identify three requirements of criminal act.
- Describe an exception to the criminal act element.
- Ascertain three situations where an omission to act could be criminal.
- Distinguish between actual and constructive possession.
- Identify the criminal intent element required when possession is the criminal act.
Crimes can be broken down into elements, which the prosecution must prove beyond a reasonable doubt. Criminal elements are set forth in criminal statutes, or cases in jurisdictions that allow for common-law crimes. With exceptions, every crime has at least three elements: a criminal act, also called actus reus; a criminal intent, also called mens rea; and concurrence of the two. The term conduct is often used to reflect the criminal act and intent elements. As the Model Penal Code explains, “‘conduct’ means an action or omission and its accompanying state of mind” (Model Penal Code § 1.13(5)).
Figure 4.1 Criminal Code of Georgia
Recall from Chapter 1 “Introduction to Criminal Law” that not all crimes require a bad result. If a crime does require a bad result, the prosecution must also prove the additional elements of causation and harm.
Another requirement of some crimes is attendant circumstances. Attendant circumstances are specified factors that must be present when the crime is committed. These could include the crime’s methodology, location or setting, and victim characteristics, among others.
This chapter analyzes the elements of every crime. Chapter 7 “Parties to Crime” through Chapter 13 “Crimes against the Government” analyze the elements of specific crimes, using a general overview of most states’ laws, the Model Penal Code, and federal law when appropriate.
Example of a Crime That Has Only Three Elements
Janine gets into a fight with her boyfriend Conrad after the senior prom. She grabs Conrad’s car keys out of his hand, jumps into his car, and locks all the doors. When Conrad strides over to the car, she starts the engine, puts the car into drive, and tries to run him down. It is dark and difficult for Janine to see, so Conrad easily gets out of her way and is unharmed. However, Janine is thereafter arrested and charged with attempted murder. In this case, the prosecution has to prove the elements of criminal act, criminal intent, and concurrence for attempted murder. The prosecution does not have to prove causation or that Conrad was harmed because attempt crimes, including attempted murder, do not have a bad result requirement. Attempt and other incomplete or inchoate crimes are discussed in Chapter 8 “Inchoate Offenses”.
Criminal act, or actus reus, is generally defined as an unlawful bodily movement (N.Y. Penal Law, 2010). The criminal statute, or case in jurisdictions that allow common-law crimes, describes the criminal act element.
Figure 4.2 Alabama Criminal Code
The Requirement of Voluntariness
One requirement of criminal act is that the defendant perform it voluntarily. In other words, the defendant must control the act. It would not serve the policy of specific deterrence to punish the defendant for irrepressible acts. The Model Penal Code gives the following examples of acts that are not voluntary and, therefore, not criminal: reflexes, convulsions, bodily movements during unconsciousness or sleep, conduct during hypnosis or resulting from hypnotic suggestion, or a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual (Model Penal Code § 2.01 (2)). One voluntary act is enough to fulfill the voluntary act requirement. Thus if a voluntary act is followed by an involuntary one, the court may still impose criminal liability depending on the circumstances (Govt. of Virgin Islands v. Smith, 2010).
Example of an Involuntary and Noncriminal Act
Perry is hypnotized at the local county fair. The hypnotist directs Perry to smash a banana cream pie into his girlfriend Shelley’s face. Smashing a pie into a person’s face is probably battery in most states, but Perry did not commit the act voluntarily, so he should not be convicted of a crime. Punishing Perry for battery would not specifically deter Perry from performing the act again while hypnotized because he is not in control of his behavior when experiencing this mental state.
Example of a Voluntary Act Followed by a Nonvoluntary Act
Timothy attends a party at a friend’s house and consumes several glasses of red wine. Timothy then attempts to drive his vehicle home. While driving, Timothy passes out at the wheel and hits another vehicle, killing its occupant. Timothy can probably be convicted of one or more crimes in this situation. Timothy’s acts of drinking several glasses of wine and then driving a vehicle are voluntary. Thus even though Timothy got into a car accident while unconscious, his involuntary act was preceded by conscious, controllable, and voluntary action. A punishment in this instance could specifically deter Timothy from drinking and driving on another occasion and is appropriate based on the circumstances.
Status as a Criminal Act
Generally, a defendant’s status in society is not a criminal act. Status is who the defendant is, not what the defendant does. Similar to punishment for an involuntary act, when the government punishes an individual for status, it is essentially targeting that individual for circumstances that are outside his or her control. This punishment may be cruel and unusual pursuant to the Eighth Amendment if it is disproportionate to the defendant’s behavior.
In Robinson v. California, 370 U.S. 660 (1962), the US Supreme Court held that it is unconstitutional as cruel and unusual punishment pursuant to the Eighth Amendment to punish an individual for the status of being a drug addict—even if the drugs to which the defendant is addicted are illegal. The Court compared drug addiction to an illness, such as leprosy or venereal disease. Punishing a defendant for being sick not only is inhumane but also does not specifically deter, similar to a punishment for an involuntary act.
If the defendant can control the actions at issue in spite of his or her status, the defendant’s conduct can be constitutionally criminalized and punished pursuant to the Eighth Amendment. In Powell v. Texas, 392 U.S. 514 (1968), the US Supreme Court upheld the defendant’s conviction for “drunk in public,” in spite of the defendant’s status as an alcoholic. The Court held that it is difficult but not impossible for an alcoholic to resist the urge to drink, so the behavior the statute criminalized was voluntary. Also, the Court ruled that the state has an interest in treating alcoholism and preventing alcohol-related crimes that could injure the defendant and others. Pursuant to Powell, statutes that criminalize voluntary acts that arise from status are constitutional under the Eighth Amendment.
Example of a Constitutional Statute Related to Status
Refer to the example in Section 4 “Example of a Voluntary Act Followed by a Nonvoluntary Act”, where Timothy drives under the influence of alcohol and kills another. A state statute that criminalizes killing another person while driving under the influence is constitutional as applied to Timothy, even if Timothy is an alcoholic. The state has an interest in treating alcoholism and preventing alcohol-related crimes that could injure or kill Timothy or another person. Timothy’s act of driving while intoxicated is voluntary, even if his status as an alcoholic makes it more difficult for Timothy to control his drinking. Thus Timothy and other alcoholic defendants can be prosecuted and punished for killing another person while driving under the influence without violating the Eighth Amendment.
Thoughts as Criminal Acts
Thoughts are a part of criminal intent, notcriminal act. Thoughts cannot be criminalized.
Example of Noncriminal Thoughts
Brianna, a housecleaner, fantasizes about killing her elderly client Phoebe and stealing all her jewelry. Brianna writes her thoughts in a diary, documenting how she intends to rig the gas line so that gas is pumped into the house all night while Phoebe is sleeping. Brianna includes the date that she wants to kill Phoebe in her most recent diary entry. As Brianna leaves Phoebe’s house, her diary accidentally falls out of her purse. Later, Phoebe finds the diary on the floor and reads it. Phoebe calls the police, gives them Brianna’s diary, and insists they arrest Brianna for attempted murder. Although Brianna’s murder plot is sinister and is documented in her diary, an arrest is improper in this case. Brianna cannot be punished for her thoughts alone. If Brianna took substantial steps toward killing Phoebe, an attempted murder charge might be appropriate. However, at this stage, Brianna is only planning a crime, not committing a crime. Phoebe may be able to go to court and get a restraining order against Brianna to prevent her from carrying out her murder plot, but Brianna cannot be incapacitated by arrest and prosecution for attempted murder in this case.
Omission to Act
An exception to the requirement of a criminal act element is omission to act. Criminal prosecution for a failure to act is rare because the government is reluctant to compel individuals to put themselves in harm’s way. However, under certain specific circumstances, omission to act can be criminalized.
An omission to act can only be criminal when the law imposes a duty to act (N.Y. Penal Law, 2010). This legal duty to act becomes an element of the crime, and the prosecution must prove it beyond a reasonable doubt, along with proving the defendant’s inaction under the circumstances. Failure or omission to act is only criminal in three situations: (1) when there is a statute that creates a legal duty to act, (2) when there is a contract that creates a legal duty to act, or (3) when there is a special relationship between the parties that creates a legal duty to act. Legal duties to act vary from state to state and from state to federal.
Duty to Act Based on a Statute
When a duty to act is statutory, it usually concerns a government interest that is paramount. Some common examples of statutory duties to act are the duty to file state or federal tax returns (26 U.S.C., 2010), the duty of health-care personnel to report gunshot wounds (Fla. Stat. Ann., 2010), and the duty to report child abuse (Ky. Rev. Stat. Ann., 2010).
Figure 4.3 Kentucky Revised Statutes
At common law, it was not criminal to stand by and refuse to help someone in danger. Some states supersede the common law by enacting Good Samaritan statutes that create a duty to assist those involved in an accident or emergency situation. Good Samaritan statutes typically contain provisions that insulate the actor from liability exposure when providing assistance (Minnesota Code, 2010).
Figure 4.4 Minnesota Good Samaritan Law
Good Samaritan Law Video
Good Samaritan Sued after Rescuing Woman in an Accident
This video is a news story on a California Supreme Court case regarding the civil liability of a Good Samaritan:
(click to see video)
Duty to Act Based on a Contract
A duty to act can be based on a contract between the defendant and another party. The most prevalent examples would be a physician’s contractual duty to help a patient or a lifeguard’s duty to save someone who is drowning. Keep in mind that experts who are not contractually bound can ignore an individual’s pleas for help without committing a crime, no matter how morally abhorrent that may seem. For example, an expert swimmer can watch someone drown if there is no statute, contract, or special relationship that creates a legal duty to act.
Duty to Act Based on a Special Relationship
A special relationship may also be the basis of a legal duty to act. The most common special relationships are parent-child, spouse-spouse, and employer-employee. Often, the rationale for creating a legal duty to act when people are in a special relationship is the dependence of one individual on another. A parent has the obligation by law to provide food, clothing, shelter, and medical care for his or her children, because children are dependent on their parents and do not have the ability to procure these items themselves. In addition, if someone puts another person in peril, there may be a duty to rescue that person (State ex rel. Kuntz v. Thirteenth Jud. Dist., 2010). Although this is not exactly a special relationship, the victim may be dependent on the person who created the dangerous situation because he or she may be the only one present and able to render aid. On a related note, some jurisdictions also impose a duty to continue to provide aid, once aid or assistance has started (Jones v. U.S., 2010). Similar to the duty to rescue a victim the defendant has put in peril, the duty to continue to provide aid is rooted in the victim’s dependence on the defendant and the unlikely chance that another person may come along to help once the defendant has begun providing assistance.
Example of a Failure to Act That Is Noncriminal
Recall the example from Chapter 1 “Introduction to Criminal Law”, Section 1.2.1 “Example of Criminal Law Issues”, where Clara and Linda are shopping together and Clara stands by and watches as Linda shoplifts a bra. In this example, Clara does not have a duty to report Linda for shoplifting. Clara does not have a contractual duty to report a crime in this situation because she is not a law enforcement officer or security guard obligated by an employment contract. Nor does she have a special relationship with the store mandating such a report. Unless a statute or ordinance exists to force individuals to report crimes committed in their presence, which is extremely unlikely, Clara can legally observe Linda’s shoplifting without reporting it. Of course, if Clara assists Linda with the shoplifting, she has then performed a criminal act or actus reus, and a criminal prosecution is appropriate.
Example of a Failure to Act That Is Criminal
Penelope stands on the shore at a public beach and watches as a child drowns. If Penelope’s state has a Good Samaritan law, she may have a duty to help the child based on a statute. If Penelope is the lifeguard, she may have a duty to save the child based on a contract. If Penelope is the child’s mother, she may have a duty to provide assistance based on their special relationship. If Penelope threw the child in the ocean, she may have a duty to rescue the child she put in peril. If Penelope is just a bystander, and no Good Samaritan law is in force, she has no duty to act and cannot be criminally prosecuted if the child suffers harm or drowns.
Possession as a Criminal Act
Although it is passive rather than active, possession is still considered a criminal act. The most common objects that are criminal to possess are illegal contraband, drugs, and weapons. There are two types of possession: actual possession and constructive possession. Actual possession indicates that the defendant has the item on or very near his or her person. Constructive possession indicates that the item is not on the defendant’s person, but is within the defendant’s area of control, such as inside a house or automobile with the defendant (State v. Davis, 2011). More than one defendant can be in possession of an object, although this would clearly be a constructive possession for at least one of them.
Because it is passive, possession should be knowing, meaning the defendant is aware that he or she possesses the item (Connecticut Jury Instructions No. 2.11-1, 2011). As the Model Penal Code states in § 2.01(4), “[p]ossession is an act, within the meaning of this Section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.” In the vast majority of states, a statute permitting a conviction for possession without this knowledge or awareness lacks the criminal intent element and would be unenforceable.
Example of an Unenforceable Possession Statute
A state has a criminal statute that prohibits “being within 100 feet of any quantity of marijuana.” Ricardo sits next to Jean on the subway. A law enforcement officer smells marijuana and does a pat-down search of Jean. He discovers that Jean has a large baggie of marijuana in his jacket pocket and arrests Jean and Ricardo for marijuana possession. Ricardo was within one hundred feet of marijuana as prohibited by the statute, but Ricardo should not be prosecuted for marijuana possession. No evidence exists to indicate that Ricardo knew Jean, or knew that Jean possessed marijuana. Thus Ricardo does not have the criminal intent or mens rea for possession, and the state’s possession statute should not be enforced against him.
- The elements of a crime are criminal act, criminal intent, concurrence, causation, harm, and attendant circumstances. Only crimes that specify a bad result have the elements of causation and harm.
- Criminal act is usually an unlawful bodily movement that is defined in a statute, or a case in jurisdictions that allow common-law crimes.
- The criminal act must be voluntary and cannot be based solely on the status of the defendant or the defendant’s thoughts.
- An exception to the criminal act element is omission to act.
- Omission to act could be criminal if there is a statute, contract, or special relationship that creates a legal duty to act in the defendant’s situation.
- Actual possession means that the item is on or very near the defendant’s person. Constructive possession means that the item is within the defendant’s control, such as inside a house or vehicle with the defendant.
- In most states, the defendant must be aware that he or she possesses the item to be convicted of possession.
Answer the following questions. Check your answers using the answer key at the end of the chapter.
- Jacqueline is diagnosed with epilepsy two years after receiving her driver’s license. While driving to a concert, Jacqueline suffers an epileptic seizure and crashes into another vehicle, injuring both of its occupants. Can Jacqueline be convicted of a crime in this situation? Why or why not?
- Read Oler v. State, 998 S.W.2d 363 (1999). In Oler, the defendant was convicted of possession of a controlled substance by misrepresentation. The defendant solicited and received prescriptions for Dilaudid, a controlled substance, from four different physicians without informing them that he already had a prescription for Dilaudid. The defendant appealed, arguing that he had no legal duty to disclose his previous receipt of the drug to the physicians, and was therefore unlawfully punished for an omission to act. Did the Texas Court of Appeals uphold the defendant’s conviction? Why or why not? The case is available at this link: http://scholar.google.com/scholar_case?case=460187562193844690&q= 998+S.W.2d+363&hl=en&as_sdt=10000000000002.
- Read Staples v. U.S., 511 U.S. 600 (1994). In Staples, the defendant was convicted of possession of an unregistered automatic weapon in violation of the National Firearms Act. The defendant claimed the conviction was improper because the prosecution did not prove that he knew the weapon was automatic, and the prosecution must prove this knowledge to convict under the statute. Did the US Supreme Court reverse the defendant’s conviction? Why or why not? The case is available at this link: http://www.law.cornell.edu/supct/html/92-1441.ZO.html.
Connecticut Jury Instructions No. 2.11-1, accessed February 13, 2011, http://www.jud.ct.gov/ji/criminal/part2/2.11-1.htm.
Fla. Stat. Ann. § 790.24, accessed October 25, 2010, http://law.onecle.com/florida/crimes/790.24.html.
Govt. of Virgin Islands v. Smith, 278 F.2d 169 (1960), accessed October 26, 2010, http://openjurist.org/278/f2d/169/government-of-the-virgin-islands-v-smith.
Jones v. U.S., 308 F.2d 307 (1962), accessed October 25, 2010, http://scholar.google.com/scholar_case?case=14703438613582917232&hl=en&as_sdt=2002&as_vis=1.
Ky. Rev. Stat. Ann. § 620.030, accessed October 25, 2010, http://www.lrc.ky.gov/krs/620-00/030.pdf.
Minnesota Code § 604A.01, accessed October 25, 2010, http://law.justia.com/minnesota/codes/2005/595/604a-s01.html.
N.Y. Penal Law § 15.00, accessed October 25, 2010, http://law.onecle.com/new-york/penal/PEN015.00_15.00.html.
State ex rel. Kuntz v. Thirteenth Jud. Dist., 995 P.2d 951 (2000), accessed October 25, 2010, http://caselaw.findlaw.com/mt-supreme-court/1434948.html.
State v. Davis, 84 Conn. App. 505 (2004), accessed February 13, 2011, http://scholar.google.com/scholar_case?case=12496216636522596448&hl=en&as_sdt=2&as_vis=1&oi=scholarr.
26 U.S.C. § 7203, accessed October 25, 2010, http://www.law.cornell.edu/uscode/26/usc_sec_26_00007203—-000-.html.
This is a derivative of Criminal Law by a publisher who has requested that they and the original author not receive attribution, which was originally released and is used under CC BY-NC-SA. This work, unless otherwise expressly stated, is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.
Leaving Good Undone: Omissions in English Criminal Law
We know from current case law and statute that omissions may be, and are, punished although “[g]enerally in English criminal law a person is not liable for failing to act … even if another person’s life is in danger.” (1) There is a substantial exception from this rule, and it is generally accepted by both courts and academics: “a defendant is liable if he or she fails to act when under a duty to act.” (2)
However, the word “omission” in itself can be confusing.
What is an omission?
The Oxford English Dictionary currently describes the word “omission” as follows:
1. The non-performance or neglect of an action which one has a moral duty or legal obligation to perform; an instance of this. Recorded earliest in sin of omission
2. a. The action of omitting, leaving out, or not including a person or thing. b. An instance of this; (concr.) a person or thing that has been omitted or passed over. (3)
It is worth noting, especially in the context of this paper, that the first recorded instance of the word in English, around the beginning of the 15th century, defined an omission as “leaving good undone: when men leave the good they should do” and, among other examples, “to do negligently what one was bound by vow to do, or by command …and yielding not a good deed for another if one can.” (4)
The second recorded occurrence of the word, in the pietistic writings of Bishop Richard Pecock, explains the word as above — “leavings of [something] undone”, but also brings the counterpart concept: commissions, “the contrary doings against [one].” (5)
At least to what regards medieval pietistic thinking, an omission (in the meaning 1. above) appears to be considered just as bad as a commission. Given that the word and its counterpart applied to morals, and were associated as concepts with sins, we should not be surprised at the process of transition and correlation from the religious sphere to the judicial, leading to the contrasting pair of omission and act in use to this day.
The omission formulated by Rolle of Hampole is “leaving the good undone.” This presents us with the meaning familiar to law students and practitioners of today: “e.g. ‘failing to…’, usually in the context of an undertaking.” (6)
From a failing to a criminal matter
In his seminal essay on omissions in criminal law, Professor Andrew Ashworth enumerates five possible situations when a duty might be imposed by the courts:
- Prior created dangerous act ;
- Relationship duties ;
- Undertaken duties ;
- Duties of ownership or control of property (7) ;
- Citizenship duties.
This latter is less encountered in practice in the English context, but is often mentioned in theoretical approaches, especially in the context of “Good Samaritan Laws”. (8)
This point of view is generally held as the current position of the law, although with significant subtractions or additions to it. In Great Debates on Criminal Law (9), Jonathan Herring prefers to omit citizenship duties completely, whereas Smith and Hogan: Criminal Law introduces a new duty, namely that of Dangerous pursuits (10), and then renames (and shortens drastically) ‘Citizenship duties’ as ‘A general duty of rescue’. For clarity, Ashworth’s ‘Undertaken duties’ are also broken into ‘Contract’ and ‘Voluntary undertakings’.
Irrespective of the formulation (the language used and its interpretation being liable to bring further complications), the consensus is that once a duty to act exists, a breach by action or omission is likely to attract sanction.
It would be easy to dismiss further discussion saying that this clarifies the position and matters should always proceed accordingly. This paper starts from the premise that “The law does and should criminalise omissions to act just as much as it criminalises positive acts,” and we shall see now how exactly it does this.
Mustill LJ in Airedale National Health Trust v Bland said that “[t]he English criminal law … draws a sharp distinction between acts and omissions” but he showed his dissatisfaction by adding that “the current state of the law is unsatisfactory both morally and intellectually” and that “[f]or the time being all are agreed that the distinction between acts and omissions exists, and we must give effect to it.” (11)
We thus have an admission at the highest judiciary level that the state of affairs (as of 1993) was in need of reform and the discussion has been ongoing since at least 1985 when the Law Commission proposed a codification of the criminal law (12). In 1987, Professor Glanville Williams expressed his anxiety with regards to the status of omissions in the draft code, believing that “[it] provides too great scope for offences of omission,” (13) and critics have been calling for an overhaul ever since, becoming — to paraphrase a 2011 article by Andrew McGee — increasingly louder, and their words increasingly stronger . (14)
Although there is a general consensus that the law should punish omissions (15), it is not always clear as to what the omission are, in either of the main views on the subject: “the conventional view”, and the “social responsibility view” (16). In both views, the difficulty lies in separating acts from omissions, and deciding to what extent an omission can be said to have a positive effect and so have criminal liability imposed on it. We shall embrace Ashworth’s view that “although there are some clear cases of omission and some clear cases of act, there are many ambiguous cases” (17) in which act and omission — doing and non-doing — overlap, and shall consider things at face value through this perspective.
The philosophical distinction between acts and omissions is arguably too complicated to deal with in this paper at the length and breadth it deserves, and, following Lord Diplock’s example, we shall continue with it as it is. We can take a look instead at the current approach of the courts for the imposition of liability. This includes:
“(i) classification (is the case one of omission or act?); (ii) the scope of liability (is the offence in question one under which conviction can arise for omission?); (iii) the moral bases of liability (on what grounds can the law impose a duty to act?); (iv) issues of causation (how can D’s failure to act result in a proscribed wrong?). (18)
It will be necessary not just to look at some cases through this lens, but also, in order to understand the moral dimension of this approach, to return to the religious medieval man and his example of omission as “leaving good undone.” What else can we consider an omission other than a good left undone in a case like Miller (19), in which the defendant who set a mattress on fire moves to another room in order to sleep, without putting the fire out first? We can even say that Mr Miller, in the words of Rolle (20) “was bound by vow to do” something — in this case the vow being his duty to remedy a dangerous situation he initiated. This point proved to be crucial in his conviction for criminal damages. As a strict liability offence, it became irrelevant that Miller had had no intention to set fire to the house, that there was no mens rea (21). The House of Lords found that it was an “erroneous notion that failure to act cannot give rise to criminal liability in English law.” (22)
A different omission, but with the similar effect of being construed into an act, occurred in DPP v Santana-Bermudez (23); when asked whether he still had “any sharps” on him, a man who was going to be body searched by the police replied that he didn’t, after emptying his pockets. The constable who conducted the search then stuck her finger in a hypodermic needle. The issue at stake was whether the defendant could be guilty of assault by omission. The High Court found that he did not cause the assault by a positive act, but his omission did lead to it.
As an exercise, this is how the courts’ approach, as identified by Elliott and Ormerod, applies to Miller and Santana-Bermudez: (i) an omission was construed as an act; (ii) there was scope for liability; (iii) once the omission was viewed as a culpable act, there was a moral basis for the imposition of a duty to act; and (iv) but for the Defendant’s omission there would have been no damage or assault.
We now have a framework which is applied to future cases, and we might obtain some certainties, but it doesn’t mean that we have solved the bigger questions: (i) what differentiates omissions from an acts?; (ii) and if it is an omission, to which point does the scope for liability extends? As such, Maurice Kay J in Santana-Bermudez seems to share the annoyance shown by Lord Diplock twenty years previously in Miller:
“A great deal of undesirable complexity has bedevilled our criminal law as a result of quasi theological distinctions between acts and omissions.”
Conclusion: What to do next?
Argumentation on omissions in criminal law seems to be under the aegis of the parable of the Good Samaritan (24). Did the men walking past an injured man without helping him have a duty to act? Morally speaking, yes — in Jesus’ parable we are exhorted to love our neighbour.
From a legal point of view, the situation is different. In the words of Lord Diplock in Miller:
“The conduct of the parabolical priest and Levite on the road to Jericho may have been indeed deplorable, but English law has not so far developed to the stage of treating it as criminal; and if it ever were to do so there would be difficulties in defining what should be the limits of the offence.” (25)
In the 15th century, Bishop Pecock instructed his readers to find blame for omissions if “oure conscience schulde deem us gilty” (26). But as Lord Diplock underlined, morality and the law, although closely connected, are different things. Some European countries like France and Germany penalise the failure to help a person in difficulty, if this can be done without endangering oneself (27). Along these lines, there have been calls for the creation of a general duty of care in English Law that would impose a criminal sanction on people who fail to give assistance (28) and Prof Ashworth is one of the main proponents. Speaking in a radio panel discussion on BBC Radio 4 in January 2015 (29), he said:
“I think we need to have a law that states there should be a duty to assist… At the moment, English law is untidy and unprincipled, and I think we ought to state this principle and bring it in as a law … I am suggesting we should have a clearer law that should tell people they should give assistance to others in a wide range of situations, and that offence [from failing to give assistance] is a middle-ranking offence.”
This would not only bring the law to the moral position which maintains that one should be “yielding … a good deed for another if one can”; it may be argued (and indeed it is argued) that it would simplify a little of the already mentioned “undesirable complexity”. As the law currently stands, it does criminalise omissions to act just as much as it criminalises positive acts. However, in a hybrid conventional and social responsibility view more attuned to contemporary sensibilities and moral compass, as that proposed by Ashworth (30), it might be more conducive to social cohesion to encourage citizen action and responsibility more, and punish some omissions less. It will also do something which the public generally welcomes: it could protect would-be good Samaritans from the possible sanction of the law. (31)
— — — — — — — — — — — — —
- Jonathan Herring, Great Debates in Criminal Law (Palgrave Macmillan 2009), p. 24
- “omission, n.” OED Online. Oxford University Press, December 2014. The word comes in English from Anglo-Norman around 1300, in the sense 1. For sense 2, word appeared in legal English around 1440 in a Court of Chancery report: “Bothe oblygaciouns and condiciouns were made and wretone… with out eny omissioun or varyaunce” http://www.oed.com/view/Entry/131211?redirectedFrom=omission (accessed February 10, 2015).
- Richard Rolle of Hampole, The Form of Perfect Living (Thomas Baker, London 1910), p. 33–34. The writing itself probably dates from before 1400.
- Bishop Pecock; Vaughan Hitchcock, E (Ed.) The Donet (Early English Text Society No. 156, Oxford University Press 1921), p. 96: “knowleching … alle þe omyssiouns of hem, and alle commysiouns agens hem: þat is to seie, alle þe levings of hem undoon, and alle þe contrarye doingis agens hem, … in which oure conscience schulde deem us gilty.” Writing dates from cca. 1445
- Andrew Ashworth, “The Scope of Criminal Liability for Omissions” (1989) Law Quarterly Review, 105(Jul), p. 424
- Cases for points 1–4: R v Miller  2 AC 161; R v Gibbins & Proctor  13 Cr App Rep 134; Stone and Dobinson  Q.B. 354, R v Pittwood  19 T.L.R. 37, R v Dytham  Q.B. 72; Tuck v Robson  1 W.L.R. 741
- Note there are two types of Good Samaritan Law: one imposes a general liability to act; the other is meant to protect “everyday heroes” from negligence or criminal liability (in certain cases) if their altruistic actions are contested in court. This latter type is enacted in the UK as the Social Action, Responsibility and Heroism Act 2015
- Herring, op.cit., p. 24–25
- David Ormerod, Smith and Hogan: Criminal Law. Cases and Materials (10th edition, Oxford University Press 2009), p. 105. Case law quoted is Khan and Khan  Crim LR 830
-  AC 789
- Law Commission, Codification of the Criminal Law (Law Com No 143, 1985)
- Glanville Williams, “What should the Code do about omissions?” (1987) Legal Studies 7, p. 92–118
- Andrew McGee, “Ending the life of the act/omission dispute: causation in withholding and withdrawing life-sustaining measures” (2011) Legal Studies, Vol. 31 No. 3, September, p. 468
- Herring, op.cit., p. 25
- Both views criticised to some extent by Williams, “Criminal omissions — the conventional view” (1991) Law Quarterly Review, 107 (Jan), p. 86–98
- Andrew Ashworth, Principles of Criminal Law (Oxford University Press 2009) p. 100
- Tracey Elliott and David Ormerod, “Acts and Omissions — A Distinction without Defence?” (2008) Cambrian Law Review 39, p. 40. Also in Smith and Hogan, op.cit., p. 89
- R v Miller  UKHL 6
- Rolle of Hampole, op.cit.
- A general problem in liability for omissions, as Actus reus and Mens rea do not coincide
- Per Lord Diplock,  UKHL 6. Lord Diplock also criticised the common use of the formula actus reus, which he observed that, by its very wording, suggest an action
-  EWHC Admin 2908
- The Bible, King James Version, Luke 10:25–37
-  UKHL 6
- Bishop Pecock; Vaughan Hitchcock (Ed.), The Donet, op.cit.
- Andrew Ashworth and Eva Steiner, “Criminal Omissions and public duties: the French experience” (1990) Legal studies 10, p. 153–164
- Ashworth, op.cit., p. 454
- Andrew Ashworth speaking during the “Unreliable Evidence” radio series, episode Good Samaritan Law (BBC Radio 4, 14 January 2015). The programme was hosted by Clive Anderson; other guests: former law lord, Lord Hoffman, barrister Peter Cooke and French law expert Catherine Elliott
- Although coming from a different perspective than Ashworth, Glanville Williams (1991), op.cit., p.93, agreed with lower penalties for some omissions: “Ministers continually bewail the rise in the prison population, yet raise maximum punishments for no better reason than to convince the general populace that they are trying to control crime.”
- Jonathan Romain, “Let’s not turn our backs on a good Samaritan law” The Guardian (London, 30 January 2015)
Andrew Ashworth and Jeremy Horder, Principles of Criminal Law (7th edition, Oxford University Press 2013)
Andrew Ashworth, Principles of Criminal Law (6th edition, Oxford University Press 2009)
Jonathan Herring, Great Debates in Criminal Law (Palgrave Macmillan 2009)
David Ormerod, Smith and Hogan: Criminal Law. Cases and Materials (10th edition, Oxford University Press 2009)
Michael Moore, Placing Blame: A Theory of the Criminal Law (Clarendon Press 1993)
Bishop Pecock, Elsie Vaughan Hitchcock (Ed.), The Donet (Early English Text Society No. 156, Oxford University Press 1921). Available in facsimile online at https://archive.org/details/donetpeco00peco, accessed 01 February 2015
Richard Rolle of Hampole, The Form of Perfect Living (Thomas Baker, London 1910). Available in facsimile online at http://www.gutenberg.org/ebooks/25856 , accessed on 31 January 2015
Victor Tadros, Criminal Responsibility (Oxford University Press, 2007)
Andrew Ashworth, “The Scope of Criminal Liability for Omissions” (1989) Law Quarterly Review, 105(Jul), p. 424–459
Andrew Ashworth, “Ignorance of the Criminal Law, and Duties to Avoid It” (2011). Modern Law Review 74(1) , p. 1–26
Andrew Ashworth and Eva Steiner, “Criminal Omissions and public duties: the French experience” (1990) Legal studies 10, p. 153–164
Tracey Elliot and David Ormerod, “Acts and Omissions — A Distinction without Defence?” (2008) Cambrian Law Review 39, p. 40–59
Tracey Elliott, “Liability for Manslaughter by Omission: Don’t Let the Baby Drown!” (2010) Journal of Criminal Law 74, p. 163–179
Andrew McGee, “Ending the life of the act/omission dispute: causation in withholding and withdrawing life-sustaining measures” (2011) Legal Studies, Vol. 31 No. 3, September, p. 467–491
Jonathan Romain, “Let’s not turn our backs on a good Samaritan law” The Guardian (London, 30 January 2015) www.theguardian.com/commentisfree/2015/jan/30/good-samaritan-law-bureaucracy-health-safety-food-shelter, accessed on 31 January 2015
Glanville Williams, “What should the Code do about omissions?” (1987) Legal Studies 7, p. 92–118
Glanville Williams, “Criminal omissions — the conventional view” (1991) Law Quarterly Review, 107(Jan), p. 86–98
Airedale National Health Trust v Bland  AC 789
Director of Public Prosecutions v Santana-Bermudez  EWHC Admin 2908
R v Adomako  UKHL 6
R v Dytham  Q.B. 72
R v Gibbins & Proctor  13 Cr App Rep 134
R v Miller  2 AC 161
R v Pittwood  19 T.L.R. 37
Stone and Dobinson  1QB 354
Tuck v Robson  1 W.L.R. 741
Criminal Damage Act 1971
The Social Action, Responsibility and Heroism Act 2015
Broadcasts and Other:
“Unreliable Evidence” series, episode Good Samaritan Law (BBC Radio 4, 14 January 2015)
OED Online Oxford University Press, December 2014, available online at <http://www.oed.com > accessed 31 January 2015