Omission (law)
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In
law Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
, an omission is a failure to act, which generally attracts different legal consequences from positive conduct. In the
criminal law Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law i ...
, an omission will constitute an ''
actus reus (), sometimes called the external element or the objective element of a crime, is the Law Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the ("guilty mind"), produces criminal liability in th ...
'' and give rise to liability only when the law imposes a duty to act and the
defendant In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case. Terminology varies from one jurisdic ...
is in breach of that duty. In
tort law A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
, similarly, liability will be imposed for an omission only exceptionally, when it can be established that the defendant was under a duty to act or
duty of care In tort law, a duty of care is a legal obligation that is imposed on an individual, requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be establis ...
.


Criminal law

In the criminal law, at
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
, there was no general duty of care owed to fellow citizens. The traditional view was encapsulated in the example of watching a person drown in shallow water and making no rescue effort, where commentators borrowed the line, "Thou shalt not kill but needst not strive, officiously, to keep another alive." ( Arthur Hugh Clough (1819–1861)) in support of the proposition that the failure to act does not attract criminal liability. Nevertheless, such failures might be
morally Morality () is the differentiation of intentions, decisions and actions between those that are distinguished as proper (right) and those that are improper (wrong). Morality can be a body of standards or principles derived from a code of cond ...
indefensible and so both legislatures and the courts have imposed liability when the failure to act is sufficiently blameworthy to justify criminalisation. Some statutes therefore explicitly state that the ''actus reus'' consists of any relevant "act or omission", or use a word that may include both. Hence, the word "cause" may be both positive in the sense that the accused proactively injured the victim and negative in that the accused intentionally failed to act knowing that this failure would cause the relevant injury. In the courts, the trend has been to use objective tests to determine whether, in circumstances where there would have been no risk to the accused's health or well-being, the accused should have taken action to prevent a foreseeable injury being sustained by a particular victim or one from a class of potential victims. So, returning to the drowning example, the accused would be liable if the victim was a child in a pool with a water depth of six inches, or there was a flotation device nearby that could easily be thrown to the victim, or the accused was carrying a mobile phone that could be used to summon help. However, the law will never penalise someone for not jumping into a raging torrent of water, i.e. the law does not require the potential saver to risk drowning even though the individual might be a lifeguard paid to patrol the given beach, river or pool. No matter what the terms of
employment Employment is a relationship between two parties regulating the provision of paid labour services. Usually based on a contract, one party, the employer, which might be a corporation, a not-for-profit organization, a co-operative, or any othe ...
, an employee can never be required to do more than what is reasonable in all the circumstances. In ''
R v Dytham R, or r, is the eighteenth letter of the Latin alphabet, used in the modern English alphabet, the alphabets of other western European languages and others worldwide. Its name in English is ''ar'' (pronounced ), plural ''ars'', or in Irelan ...
'' (1979) QB 722 an on-duty police officer stood and watched a man beaten to death outside a nightclub. He then left without calling for assistance or summoning an ambulance. He was convicted of the
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
offence of willful misconduct in public office. Widgery CJ said: In the ''Attorney General's Reference (No 3 of 2003)'' (2004) EWCA Crim 868 police officers arrested a man with head injuries for a breach of the peace because of his abusive and aggressive behaviour towards the hospital staff who were trying to treat him. He later stopped breathing in the police station and all attempts at resuscitation failed. Five police officers, who were involved in the care of A at the time of his death, were charged with
manslaughter Manslaughter is a common law legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker Draco in the 7th cen ...
by
gross negligence Gross negligence is the "lack of slight diligence or care" or "a conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party." In some jurisdictions a person injured as a result of gross negl ...
and misconduct in a public office. It was held that the latter offence required that a public officer was acting as such, that he willfully neglected to perform his duty and/or willfully misconducted himself in a way which amounted to an abuse of the public's trust in the office holder, without reasonable excuse or justification; that whether the misconduct was of a sufficiently serious nature would depend upon the responsibilities of the office and the office holder, the importance of the public objects which they served, the nature and extent of the departure from those responsibilities and the seriousness of the consequences which might follow from the misconduct; that to establish the ''
mens rea In criminal law, (; Law Latin for "guilty mind") is the mental element of a person's intention to commit a crime; or knowledge that one's action (or lack of action) would cause a crime to be committed. It is considered a necessary element ...
'' (Latin for "guilty mind") of the offence, it had to be proved that the office holder was aware of the duty to act or was subjectively reckless as to the existence of the duty; that the test of recklessness applied both to the question whether in particular circumstances a duty arose at all and to the conduct of the defendant if it did arise; and that the subjective test applied both to reckless indifference to the legality of the act or omission and in relation to the consequences of the act or omission.


Assumption of responsibility for care of dependents

The general rule is that
parent A parent is a caregiver of the offspring in their own species. In humans, a parent is the caretaker of a child (where "child" refers to offspring, not necessarily age). A ''biological parent'' is a person whose gamete resulted in a child, a male t ...
s, legal guardians, spouses (see ''R v Smith'' (1979) CLR 251 where the wife died after giving birth to a stillborn child, delivered by her husband at home) and anyone who voluntarily agrees to care for another who is dependent because of age, illness or other infirmity, may incur a duty, at least until care can be handed over to someone else. In three cases, the duty was implied: *''R v Instan'' (1893) 1 QB 450, Instan lived with her aunt, who was suddenly taken ill and could no longer feed herself or call for help. She was convicted of manslaughter because she neither fed her aunt, nor called for medical help, even though she continued to stay in the house and ate her aunt's food. *''R v Stone & Dobinson'' (1977) QB 354. Stone and his mistress agreed to care for his sister who was suffering from
anorexia Anorexia nervosa, often referred to simply as anorexia, is an eating disorder characterized by low weight, food restriction, body image disturbance, fear of gaining weight, and an overpowering desire to be thin. ''Anorexia'' is a term of Gre ...
. As her condition deteriorated, she became bed-ridden but no help was summoned and she died. They were convicted of her manslaughter because they had accepted her into their home and so assumed a duty of care for her. *''R v Gibbins & Proctor'' (1918) 13 Cr App Rep 134. A father and his lover neglected his child by failing to feed her. The lover had taken on a duty to care for the child when moving into the house and was under an obligation to care for her.


Statutory omissions

Misprision of felony Misprision of felony is a form of misprision, and an offence under the common law of England that is no longer active in many common law countries. Where it was or is active, it is classified as a misdemeanor. It consists of failing to report ...
was abolished in 1967 but new statutory offences of failure to comply with a duty to disclose terrorist acts or funding under s19(2)
Terrorism Act 2000 The Terrorism Act 2000 (c.11) is the first of a number of general Terrorism Acts passed by the Parliament of the United Kingdom. It superseded and repealed the Prevention of Terrorism (Temporary Provisions) Act 1989 and the Northern Ireland (Emer ...
, and failure to disclose knowledge or suspicion of money laundering maintain the tradition. Similarly, the appropriation element in s1
theft Theft is the act of taking another person's property or services without that person's permission or consent with the intent to deprive the rightful owner of it. The word ''theft'' is also used as a synonym or informal shorthand term for some ...
may be committed by an act or by keeping when there is a duty to return the property, a
deception Deception or falsehood is an act or statement that misleads, hides the truth, or promotes a belief, concept, or idea that is not true. It is often done for personal gain or advantage. Deception can involve dissimulation, propaganda and sleight o ...
under s15(4)
Theft Act 1968 The Theft Act 1968c 60 is an Act of the Parliament of the United Kingdom. It creates a number of offences against property in England and Wales. On 15 January 2007 the Fraud Act 2006 came into force, redefining most of the offences of decepti ...
may be committed by what is not said or done, and "dishonestly secures" under s2(1)
Theft Act 1978 The Theft Act 1978 (c 31) is an Act of the Parliament of the United Kingdom. It supplemented the earlier deception offences contained in sections 15 and 16 of the Theft Act 1968 by reforming some aspects of those offences and adding new provis ...
may also be committed by omission (see ''R v Firth'' (1990) CLR 326 in which the defendant failed to tell the NHS that patients using NHS facilities were in fact private patients thereby obtaining the use of the facilities without payment). One of the simpler examples is the offence of failing to report a road traffic accident (s. 170
Road Traffic Act 1988 The Road Traffic Act 1988 (c. 52) is an Act of the Parliament of the United Kingdom, concerning licensing of vehicles, insurance and road regulation. Contents Part I contains a number of traffic offences including causing death by dangerous drivi ...
).


Duty to act when the defendant has created the danger

A person who creates a dangerous situation may be under a duty to take reasonable steps to avert that danger. In ''
R v Miller ''R v Miller'' ( case citation: 982UKHL 6; 9832 AC 161) is an English criminal law case demonstrating how actus reus can be interpreted to be not only an act, but a failure to act. Facts James Miller, a vagrant, was squatting at 9 Grantham Roa ...
'' (1983) 2 AC 161, the defendant was sleeping rough in a building. He fell asleep on his mattress while smoking a cigarette. When he woke, he found that the mattress was smouldering but, instead of calling for help, he simply moved into another room. This allowed the fire to spread. He was convicted under the
Criminal Damage Act 1971 Criminal damage in English law was originally a common law offence. The offence was largely concerned with the protection of dwellings and the food supply, and few sanctions were imposed for damaging personal property. Liability was originally ...
for recklessly causing damage by omission. Lord Diplock said: But although this may apply to the generality of offences, "constructive manslaughter" is different. ''R v Lowe'' (1973) QB 702, the defendant committed the offence of neglecting his child under s1
Children and Young Persons Act 1933 The Children and Young Persons Act 1933 (23 & 24 Geo.5 c.12) is an Act of the Parliament of the United Kingdom of Great Britain and Northern Ireland. It consolidated all existing child protection legislation for England and Wales i ...
, and this caused the child's death. It was held that there should be a difference between commission and omission. Mere neglect without some foresight of the possibility of harm resulting is not a ground of constructive manslaughter, even if that omission is deliberate. ''R v Khan & Khan'' (1998) CLR 830, confirmed that there is no separate category of manslaughter by omission unless the omission constitutes a breach of duty to act. The defendants supplied a 15-year-old prostitute with twice the amount of heroin likely to be taken by a regular user. The defendants left her unconscious in the flat, returning the next day to find that she had died of the overdose. Had medical assistance been called, the girl would probably not have died. The unlawful act was supplying the drug but the death was caused by the quantity injected by the victim. The trial judge invited jury to consider liability on the basis of the defendants' failure to summon medical assistance. On appeal, the conviction was quashed because the brothers had not accepted a duty to act before she took the heroin.


Failure to provide medical treatment

In general terms,
doctor Doctor or The Doctor may refer to: Personal titles * Doctor (title), the holder of an accredited academic degree * A medical practitioner, including: ** Physician ** Surgeon ** Dentist ** Veterinary physician ** Optometrist *Other roles ** ...
s and
hospital A hospital is a health care institution providing patient treatment with specialized health science and auxiliary healthcare staff and medical equipment. The best-known type of hospital is the general hospital, which typically has an emerge ...
s have a duty to provide appropriate care for their patients, and an omission may breach that duty except where an adult patient of ordinary capacity terminates the duty by refusing
consent Consent occurs when one person voluntarily agrees to the proposal or desires of another. It is a term of common speech, with specific definitions as used in such fields as the law, medicine, research, and sexual relationships. Consent as und ...
. There is a conflict in
public policy Public policy is an institutionalized proposal or a decided set of elements like laws, regulations, guidelines, and actions to solve or address relevant and real-world problems, guided by a conception and often implemented by programs. Public p ...
. The policy of patient autonomy enshrines a right of self-determination—patients have a right to live their lives how they wish, even if it will damage their health or lead to premature death. Society’s interest is in upholding the concept that all human life is sacred and should be preserved if at all possible. It is now well established that the right of the individual is paramount. In ''Re C (Adult: Refusal of Treatment)'' (1994) 1 WLR 290, a patient diagnosed as a chronic, paranoid schizophrenic refused to allow his gangrenous foot to be amputated. This was permitted because his general capacity showed him capable of understanding the nature, purpose and effect of the life-saving treatment. In ''Re B (Adult: Refusal of Medical Treatment)'' (2002) 2 AER 449 the presumption that an adult has full capacity can be rebutted if: :(a) the person is unable to understand the information relevant to the decision, especially as to the likely consequences of having or not having the treatment; or :(b) the patient is unable to use the information and weigh it in the balance as part of the process of arriving at a decision. Ms B was a competent but paralysed, ventilator-dependent patient, and she won the right to have the ventilator turned off. Although the switching-off had to be performed by a doctor, and this is an act intentionally causing death, the law characterises this as an omission because it amounts simply to a cessation of the ongoing treatment. The doctors’ conduct qualifies as lawful "passive euthanasia". If the particular doctor invited to omit further treatment has conscientious objections, a doctor who will undertake the omission should be sought. But, in more general cases of
necessity Necessary or necessity may refer to: * Need ** An action somebody may feel they must do ** An important task or essential thing to do at a particular time or by a particular moment * Necessary and sufficient condition, in logic, something that i ...
, urgent surgery may not be unlawful to preserve life pending any judicial decision. Similarly, when the patient is a minor, emergency treatment to preserve life will not be unlawful (note the power to refer issues of consent to the courts under their
wardship In law, a ward is a minor or incapacitated adult placed under the protection of a legal guardian or government entity, such as a court. Such a person may be referenced as a "ward of the court". Overview The wardship jurisdiction is an ancient ...
jurisdiction). In death with dignity situations where a patient is incapable of communicating his wishes, a doctor may be relieved of his duty, as the House of Lords recognised in ''Airedale National Health Service Trust v Bland'' (1993) AC 789. Here a patient who had survived for three years in a
persistent vegetative state A persistent vegetative state (PVS) or post-coma unresponsiveness (PCU) is a disorder of consciousness in which patients with severe brain damage are in a state of partial arousal rather than true awareness. After four weeks in a vegetative stat ...
after suffering irreversible brain damage in the
Hillsborough disaster The Hillsborough disaster was a fatal human crush during a football match at Hillsborough Stadium in Sheffield, South Yorkshire, England, on 15 April 1989. It occurred during an FA Cup semi-final between Liverpool and Nottingham Forest in the ...
continued to breathe normally, but was kept alive only by being fed through tubes. It was held that treatment could properly be withdrawn in such circumstances, because the best interests of the patient did not involve him being kept alive at all costs. Lord Goff nevertheless drew a fundamental distinction between acts and omissions in this context:


Duty to act when contracted to do so

In ''R v Pittwood (1902)'', the defendant was convicted of
gross negligence Gross negligence is the "lack of slight diligence or care" or "a conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party." In some jurisdictions a person injured as a result of gross negl ...
manslaughter Manslaughter is a common law legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker Draco in the 7th cen ...
after he failed to close the gate on a
level crossing A level crossing is an intersection where a railway line crosses a road, Trail, path, or (in rare situations) airport runway, at the same level, as opposed to the railway line crossing over or under using an Overpass#Railway, overpass ...
as he was contracted to do. This caused a train to collide with a hay cart, and the court ruled that "a man might incur criminal liability from a duty arising out of contract."


Preventing and prosecuting war crimes

Following the
Nuremberg Trials The Nuremberg trials were held by the Allies of World War II, Allies against representatives of the defeated Nazi Germany, for plotting and carrying out invasions of other countries, and other crimes, in World War II. Between 1939 and 1945 ...
international law International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
developed the concept of
command responsibility Command responsibility (superior responsibility, the Yamashita standard, and the Medina standard) is the legal doctrine of hierarchical accountability for war crimes.
. It holds that military commanders are imposed with individual responsibility for war crimes, committed by forces under their effective command and control, they failed to prevent or adequately prosecute, if they:


Tort law

In the law of
negligence Negligence (Lat. ''negligentia'') is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as ''negligence'' involves harm caused by failing to act as a ...
, if the defendant's conduct took the form of an omission, rather than a positive act, then it will be more difficult to establish that she owed a
duty of care In tort law, a duty of care is a legal obligation that is imposed on an individual, requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be establis ...
to the
plaintiff A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the p ...
. The rationale is that a positive
duty A duty (from "due" meaning "that which is owing"; fro, deu, did, past participle of ''devoir''; la, debere, debitum, whence "debt") is a commitment or expectation to perform some action in general or if certain circumstances arise. A duty may ...
is more onerous to fulfill than a negative duty, and therefore limits more severely the
liberty Liberty is the ability to do as one pleases, or a right or immunity enjoyed by prescription or by grant (i.e. privilege). It is a synonym for the word freedom. In modern politics, liberty is understood as the state of being free within society fr ...
of the duty-bearer.


See also

*
Duty to rescue A duty to rescue is a concept in tort law that arises in a number of cases, describing a circumstance in which a party A party is a gathering of people who have been invited by a host for the purposes of socializing, conversation, re ...
*
Omission bias Omission bias is the phenomenon in which people prefer omission (inaction) over commission (action) and people tend to judge harm as a result of commission more negatively than harm as a result of omission. It can occur due to a number of process ...
*
Sin of omission In Christianity, a sin of omission is a sin committed by willingly not performing a certain action. Its opposite is the sin of commission, i.e. a sin resulting from an action performed. Catholicism In the Catholic view, a sin of omission is a ...


References


Literature

*Allen, Michael. Textbook on Criminal Law. Oxford University Press, Oxford. (2005) . *Ashworth, A. "The scope of criminal liability for omissions" (1989) 105 LQR 404 *Beynon, ''Causation, Omissions and Complicity'', (1987) CLR 539. *Finnis, ''Bland: Crossing the Rubicon'', (1993) 109 LQR 329. *Ormerod, David. Smith and Hogan Criminal Law, LexisNexis, London. (2005) *Murphy, ''Beneficence, Law, and Liberty: The Case of Required Rescue'', (2001) Col. 89 Georgetown Law Journal, 605. *Smith, ''Legal Liability and Criminal Omission'', (2001) Vol 5 Buffalo Criminal Law Review, 69. {{DEFAULTSORT:Omission (Criminal Law) Criminal law Elements of crime