Liability for Omissions

The introduction to actus reus post looks at the general rule for actus reus in criminal law. These three video focus on the liability for omissions.

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This first video looks at liability for omissions that arise out of the first 5 duties above (contractual, statutory, public office, voluntary assumption of duty and special relationships) as well as liability from the creation of dangerous situations.

 

This next video looks at liability for omissions arising out of status offences and continuing acts.

This last video sums up the main positions for and against liability for omissions.

 

Yes:

  • Taking the social responsibility view, yes they should because there is an assumption that that criminal law is here regulate behaviour including acts and omissions.
  • The individual autonomy argument is weak because rarely does the criminal law seek to promote this look at seat belts for instance.
  • A level of social corporation and social responsibility is both good and necessary for realisation of individual autonomy. This view is endorsed by professor Ashworth who argue that ‘each member of society is valued intrinsically, and the value of one citizen’s life is generally greater than the value of another citizen’s temporary freedom.

No:

  • Interference with the liberty of a person who wishes to mind his own business.
  • The defendant does nothing, the evil result would necessary occur in precisely the same way if tat that moment the alleged omission did not exist.
  • The aim of the law is to maximise individual autonomy.
  • Individual’s right to self determination is also at stake here.
  • Consequence of social responsibility view is it moves law to an intrusive stance making people ‘busy bodies’ as it is too onerous.
  • Impractical because it would require us to avert or alleviate large numbers of situations which we know about; how far will one go.
  • It is unfair unless citizens are aware of what can make them liable.
  • Therefore, to do it property legislation would have to be drafted. Legislature which much be phrased as precisely as possible, supported by a programme of education and information.
  • The present law is very balanced instead of having an ‘easy rescue’ law that many countries have where you punish where it would be easily to rescue someone, we have the duty of voluntarily assumed responsibility.
  • Causation – difficult to show how an omission can cause a particular result
  • The number of defendants that would be present – would this be sensible or responsible
  • The lack of MR

Robbery

This video is on the criminal offence of robbery. Both the actus reus and mens rea are considered.

Here is the close up of the whiteboard outline in the background.

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Sexual Offences

This section covers sexual offences under the Sexual Offences Act 2003.

The first video and whiteboard diagram concerns rape as under s1 Sexual Offences Act 2003.

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The next video looks at other offences as found under the Sexual Offences Act 2003, those affecting children, assault by penetration, sexual assault and creation of sexual activity without consent.

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Involuntary Manslaughter

In the case of involuntary manslaughter the accused lacks malice aforethought, the mens rea for murder.

There are three forms of involuntary manslaughter: constructive manslaughter, gross negligence manslaughter and reckless manslaughter.

The Whiteboard in the background

 Constructive Manslaughter

Gross Negligence Manslaughter

Reckless Manslaughter

Causation

This video introduces the causation requirement in criminal law.

But before preceding to the videos here is a JPEG overview:

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There are 6 types of Novus Actus Interveniens that will be explored:

1. Natural Interventions/Acts of God

2. Third Party Interventions

3. Medical Interventions

4.  Drug Supply

5. Thin Skull/Egg Shell Rule

6. Victim Flight

Principles of Criminal Law

Below competing principles in criminal law are discussed.

  1. Individual Autonomy vs Social Welfare

This is the principle that criminal law should proceed on the basis that individuals should be responsible for their own behaviour. This is of course different to the way children and those with mental illness are treated within the law and that is because they don’t fit into this principle. Example of this principle can be seen in the criminal liability for omissions in English law.

However, critics of this point out that most of our behaviour is anyway socially determined though so this principle is fiction and more accurate principle should be used such as welfare.

The welfare principle comes in direct opposition to the individual autonomy view which stresses on the protection of individuals/society for the greater good. Rouse argues that the law should create conditions so that individuals can make the best autonomous decision and this involves reaching communal good.

The Welfare principle can be see in the law’s adoption of human rights.

Most law making decision revolves around balancing individual autonomy with what is best for society.

 2. Minimalism vs Over-criminalisation and Policy of Social Defence

This is the principle that criminal law should only be implemented in situations where it is absolutely necessary. The idea is that having laws which are difficult to enforce undermines the power of criminal law and thus should be restricted.

Another reason for holding a minimalist position is that the law is intrusive, particularly criminal law, as it involves the state into the lives of individual and some are worried that this could lead to abuse e.g. police corruption.

Further issues that cause many to hold the minimalist stance is that it bears the biggest burden on a small sect of society i.e. those that are male, young and from ethnic backgrounds. This can send negative messages to society. Also, criminal proceedings are expensive, how much public money can we justify spending on criminal proceedings, there are also unaccounted for costs e.g. those found in the black market.

However, this view is challenged by those who support over-criminalisation and a policy of social defence. The over-criminalisation view stresses on the symbolic and powerful nature of law and how this can be used. For example, prior to the criminalisation of drinking and drive offence, it was socially accepted to drink and drive.

Furthermore, advocates of the policy of social defence argue that in order to preserve the good working of the state and state control, it is necessary to criminalise to a level above necessary.

3. Liability for acts only vs Social responsibility and the thin ice principle

The general principle is that criminal liability only exists for positive acts and not omissions, unless a duty situation exists which gives rise to criminal liability.

There are those like Professor Ashworth who advocate a social responsibility view saying that to optimise the potential of criminal law what is necessary to enact some kind of good Samaritan law which makes people liable for omissions to too. The justification for this lies in the fact that that society needs corporation between individuals to function, criminalises those who fail to help others helps in the operation of this.

Furthermore, the thin ice principle suggests that those who are skating on thin ice can’t complain if they fall in, the metaphor being for the criminal legal system. And again here we can compare this to the idea of individual autonomy.

4. Maximum certainty vs Social defence vs Strict Construction vs Proportionate response

Maximum certainty is the idea that the law should be certain because if you had no idea what you were doing is criminal then it unfair to convict you. This supports the idea of individual autonomy and the principle of non-retroactivity found in art 7 of ECHR.

However, advocates of social defence policy would argue alternatively, suggesting that you need flexibility to function effective e.g. it is hard to set out all the possible situations in which murder can be established.

The principle of strict construction relates to the idea that individual’s should be given a fair warning. This entails making sure the language of the law is clear and is relieved of any ambiguities. This ties into the the principle of proportionate response which is that criminal law sanctions should reflect the infliction of harm and should not go above necessary and proportionate.

 5. Men rea vs Objective Liability vs Correspondence vs Fair labelling

The mens rea principle is absolutely crucial to the criminal law function because it ensures that only those with a guilty mind are punished.

However, the competing principle to mens rea is that of objective liability i.e. situations where strict liability or negligence is sufficient to establish a crime e.g. gross negligence manslaughter.

Both these principles tie into the idea of fair labelling, the notion that the crime should describe behaviour and punishment should be appropriate.