Criminal Omissions and Intentions

A)

Introduction

This essay will critically discuss the extent to which omitting to act can lead to criminal liability by evaluating the general legal rule against its several qualifications.

The Rule

Generally, there can be no liability for omissions unless the defendant has a specific statutory or common law duty towards the victim as noted by Lord Diplock in Miller.[1] Mainly because, Simester and Sullivan indicate that wholesale liability for omissions would be incompatible with England’s political nature as a liberal state.[2] From this, it can be submitted that omissions should only lead to criminal liability if there is a specific duty towards the victim as wholesale liability would force citizens to be their “brothers’ keepers” which would in turn undermine England’s liberal state and its citizens’ personal autonomy.

Qualifications

Examples of when omissions can lead to criminal liability include: when there is a statutory duty (for example, s 7(6) of the Road Traffic Act 1988 specifies that failing to provide a breath, blood or urine specimen when suspected of driving with an excess of alcohol in one’s bloodstream is a statutory offence),[3] or when there is a special common law duty between the parties. This can arise between a parent and child like in Gibbins & Proctor,[4] husband and wife seen in Smith,[5] or a doctor and patient demonstrated in Airedale NHS Trust v Bland.[6] Here, the court held a doctor would only be liable for an omission if it constituted a breach of their duty to act in their patient’s best interests. Additional examples of when omissions can lead to liability include: when there has been a voluntary assumption of responsibility like in Stone & Dobinson[7] or where there has been a contractual obligation as in Pittwood.[8] Here, the defendant failed his legal duty imposed by his contract of employment to close the gate for a level crossing between a set time, thus he was convicted of gross negligence manslaughter. Dytham[9] showed that an employee can never be required to do more than what is reasonable in all the circumstances. Here, the on-duty police officer should have called for assistance when witnessing an attack and so he was convicted for misconduct in a public offence by omission. Another instance of when an omission can lead to liability is when the defendants themselves have created a dangerous situation as established in Miller. Here, the defendant inadvertently created a fire but did not take any reasonable steps that lay within his power to avert the danger such as calling for assistance, and accordingly he was convicted under the Criminal Damage Act 1971 for recklessly causing damage by omission.[10] Finally, an omission can lead to liability in cases concerning continuing acts as noted in Fagan v Metropolitan Police Commissioner.[11] Here, the defendant failed to remove his car from the victim’s foot and so it was held that this was a continuation from the original illegal action of driving the car onto the foot. Given this evidence, it can be asserted that as parliament and the courts have extended omission liability in certain scenarios, they may extend it further.

Discussion

Andrew Ashworth and Eva Steiner contend that omission liability should extend for failure to rescue someone like the ‘Bad Samaritan’ laws in Europe,[12] some states in the US[13] and the Northern Territory in Australia. In France, for example, Art 223-6 of the French Criminal Code punishes anyone who can prevent by his immediate action, without risk to him or to third parties, either a crime or an offence against the bodily integrity of a person. Furthermore, s 155 of the Criminal Code in the Northern Territory makes it an offence for any person, who being able to provide rescue, resuscitation, medical treatment, first aid or succour of any kind to a person urgently in need of it and whose life may be endangered if it is not provided, callously[14] fails to do so. Ashworth explains that such an offence in England would promote social cooperation and achieve individual autonomy.[15] Hence, it can be professed that these ‘Bad Samaritan’ laws should be enacted in England as the circumstances in the section above demonstrate England has been willing to increase the scope of omission liability. For instance, in Smith[16] the court did not impose omission liability for when the watchman left his duties during which the victim was killed by an oncoming train, whereas in the more recent and factually similar case of Pittwood criminal liability was imposed. Therefore, it can be proffered that as omission liability has been extended in the past then it should also extend to impose liability on a person who is not endangered and who has failed to rescue a victim even where no pre-existing legal duty is owed which Jonathan Herring supports.[17] This submission becomes more convincing as Catherine Elliot critiques the current scope of omission liability for subverting Art 2 of the ECHR which imposes a positive obligation to members to preserve the ‘Right to Life’ as currently England seems to only uphold the right when there is a duty of care between the parties.[18] Overall, it can be contended that by imposing these ‘Bad Samaritan’ laws then not only would they foster social cohesion but also uphold human rights.

Nevertheless, John T. Pardun opines that the ‘Bad Samaritan’ Laws are so vague that they are unforeseeable and would contravene the principle of legality.[19] He expresses that the laws in the Northern Territory impose an excessive burden on investigators and prosecutors since there may be hundreds of potential defendants who failed to rescue.[20] Furthermore, Joshua Dressler explains they are ambiguous as they do not explain what one should do if another has started to rescue, and they have an uncertain duration.[21] Therefore, it can be maintained that England should only extend omission liability to the above qualifications as the ‘Bad Samaritan’ laws are impractical. Indeed, William Wilson concurs that omission liability should only ensue if one voluntarily assumes a responsibility of care over another and this does not actually diminish the defendant’s personal autonomy since by assuming the obligation, they are deemed already to have chosen to restrict the range of life choices available.[22] Hence, it can be averred that England should not extend its omission liability as a ‘Bad Samaritan’ law would significantly encroach upon citizens’ personal autonomy more so than the existing qualifications.

Conclusion

Ultimately, it can be concluded that omissions leading to criminal liability should remain limited to whether there is a specific statutory or common law obligation. This is because, by enacting the ‘Bad Samaritan’ rules in England it would essentially contravene its liberal state and encroach upon its citizens’ personal autonomy as Simester and Sullivan said. Likewise, contrary to what Ashworth, Herring and Elliot believe, Pardun, Dressler and Wilson more convincingly argue that the ‘Bad Samaritan’ rules are impractical, especially since it would seek to criminalise every persons’ omissions even if they do not owe the victim a pre-existing duty of care. This point becomes conclusive as Glanville Williams details that since persons omit everything in the world that is not done, there can be no omission in law in the absence of a duty to act,[23] otherwise there would be an unlimited number of claims. Thus, it can be proposed that England should maintain the current extent to which criminal liability to omissions can occur, viz where statute or common law imposes it.

B)

Introduction

This essay will evaluate whether the courts have been successful in defining precisely the concept of intention by examining its development and the ramifications that have arose.  

Evolution

It can be argued that the courts have been successful in defining precisely the first concept of intention, direct intention. Anthony Duff suggests this intention can be proved if the defendant treats his action as a failure if he did not achieve the result.[24] The Supreme Court in Jogee[25] concurred that the focus here is on the defendant’s purpose, meaning that a result is regarded as directly intended if it was the defendant’s purpose. From this, it can be submitted that the courts have been successful in defining precisely the concept of direct intention as there have not been any inconsistencies in application or uncertainties in the law.

However, it can be contended that the courts have been less than successful in defining precisely the concept of oblique intention, which encompasses cases where it was not the defendant’s purpose to kill, but the defendant was virtually certain to kill as a consequence of his actions. In assessing proof of criminal intent, s 8 of the Criminal Justice Act 1967 (“the 1967 Act”) specified a court or jury shall not be bound in law to infer the accused intended or foresaw a result of his actions by reason only of its being a natural and probable consequence; but shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances. In light of this, it can be submitted that the courts have struggled to apply this Act and so they have been less than successful in defining precisely the concept of oblique intention. Originally, Hyam v DPP[26] provided that foresight of consequences of a high probability corresponds to intention, though Moloney[27] stated that instead it is only the evidence from which the jury may ‘infer’ that the defendant intended the consequences of the criminal offence. Even so, Hancock and Shankland [28] expressed that the greater the probability of a result, then the more likely it is that it was foreseen and intended. Nonetheless, Nedrick[29] maintained that where foresight of consequences was a virtual certainty then the jury could ‘infer’ intention, meaning that foresight of virtual certainty is merely evidence from which intention ‘may be’ inferred. Whereas, Woollin[30] emphasised the jury should be entitled to ‘find’ intention from foresight of virtually certain consequences of the accused’s criminal transgressions and that a result foreseen as virtually certain ‘is’ an intended result. Notwithstanding, Matthews and Alleyne[31] adopted the stance in Nedrick and refused to apply this unequivocal statement that a result foreseen as virtually certain is an intended result. Furthermore, Stringer M[32] agreed that the fact that a result is virtually certain is not proof of intention, rather the inquiry into intention is one involving an assessment of a defendant’s state of mind. More recently, Jogee followed the approach that foresight of a consequence is merely evidence from which an inference to the requisite intent might be drawn. Overall, it can be averred that due to the diverse and distinct judicial opinion on the application of s 8 of the 1967 Act, the concept of oblique intention has not been successfully precisely defined.

Analysis

Nonetheless, it can be professed that despite the court’s imprecise definition of intention, it has led to some favourable outcomes. For example, due to the ambiguity of the concept, it allowed the jury to conclude that the doctor in Bland was not a murderer even though he had foreseen death as a virtual certainty when he ‘kills’[33] his patient.[34] Thus, in some situations due to the imprecise nature of the concept, it can be argued that the court has successfully defined it, by leaving it open to the jury’s discretion. Likewise, Alan Norrie purports that oblique intention has been successfully defined as it allows there to be a moral threshold such that even though the accused could foresee a result as virtually certain, it is so at odds with his moral conception of what he was doing that it could not be conceived as a result that he intended[35] like in Steane.[36] Notwithstanding, Glanville Williams counter-argues duress should have been a defence,[37] because the defendant knew that his purpose of keeping his family safe could only be achieved by doing acts that might assist the enemy, and so he did have intent to assist the enemy no matter how innocent it was. Since intention has been extended to cases where academics and lawyers would not have applied it, it can be exhorted that the concept of oblique intention has not been successfully precisely defined. This submission becomes more convincing as Professor Mitchell purports the moral threshold leaves undefined a key term of fault applicable in the most serious crimes as there is a potential for inconsistent decisions on identical facts, and so this discretionary element has the potential to impact on the way crimes are investigated and prosecuted.[38] Indeed, Lord Lane CJ conceded Nedrick was explained poorly and instead the courts should use the meaning stated in Clause 18(b) of the Draft Code.[39] This dictates that a person acts ‘intentionally’ with respect to a result when he acts either to bring it about or being aware that it will occur in the ordinary course of events. Ward and Brooke LJJ in Re A (Conjoined Twins)[40] agreed that this would mean a result which is virtually certain is conclusive proof of intention. Hence, it can be confirmed that due to the vast amount of criticism, the concept of oblique intention has not been successfully precisely defined.

Consequently, the Law Commission recommended a codification of the present law due to the various forms of the exhaustive definition,[41] indicating that the courts have been less than successful in precisely defining the concept of intention. The Commission sought to implement the aforementioned Draft Code,[42] though Dr Gerard Coffey avers that even if this may have the advantage of legal certainty and consistency of application, it may lead to an unduly rigid application.[43] Alternatively, the Commission suggested a codification of the judicial guidelines in Woollin.[44] It can be argued that this would establish a defined set of criteria for juries to consider in the commission of the offence charged, albeit Coffey notes that this could result in uncertainty of application.[45] Regardless, it can be testified that due to the potential for reform in regard to the concept of intention, the courts have not successfully precisely defined it.

Conclusion

Ultimately, it can be concluded that the courts have been less than successful in defining precisely the concept of intention, due to the unsettled judicial and academic opinion especially regarding the application and interpretation of oblique intention. Mainly because, the courts are opposed on whether they should leave the meaning of oblique intention for the discretion of the jury as an issue of fact or deem it a question of law. Although Norrie supports the former, it can be averred that Williams, Mitchell and Lord Lane’s arguments are more persuasive, as the empirical evidence shows that it would lead to further inconsistencies and uncertainties. Likewise, the fact that the Commission has made proposals for reform, highlights that the courts have been less than successful in defining precisely the concept of intention. This point becomes conclusive as due to the imprecise definition of intention, it has led to another concept developing, namely conditional oblique intention. Itzhak Kugler explains that this would occur where an actor desires to cause an explosion in a plane though he knows it is practically certain the crew will also die, so in placing the bomb he chose to not only cause the explosion but the death of the crew.[46] Thus, it can be maintained that the courts have been less than successful in defining precisely the concept of intention because Kugler’s hypothetical circumstance has arose which would not have occurred both

[1] [1983] 2 AC 161 HL.

[2] Criminal Law: Theory and Doctrine (3rd edn, Hart Publishing 2007) 74.

[3] For further statutory offences for omissions see Road Traffic Act 1988, ss 6, 36(1) and 170; see also Terrorism Act 2000, ss 19 and 38B.

[4] (1918) 13 Cr App R 134 CA. Here, the defendants were convicted of gross negligence manslaughter for failing to feed their child. Now see Children and Young Persons Act 1933, s 1(2)(a).

[5] [1979] Crim LR 251 CA.

[6] [1993] AC 789.

[7] [1977] 2 All ER 341 CA. By accepting their relative into their home, it created a duty of care, which the defendants breached when they failed to obtain medical assistance.

[8] (1902) 19 TLR 37

[9] (1979) QB 722.

[10] Miller was followed in Evans [2009] EWCA Crim 650.

[11] [1969] 1 QB 439.

[12] ‘Criminal Omissions and Public Duties: The French Experience’ (1990) 10 LS 153.

[13] Rhode Island, Massachusetts, Minnesota, Hawaii, and Wisconsin.

[14] Defined as a person who deliberately and consciously chose not to provide help or assistance in Salmon v Chute (1994) 115 FLR 176, 199 (Kearney J).

[15] ‘The Scope of Criminal Liability for Omissions’ (1989) 105 LQR 424, 432.

[16] (1869) 11 Cox CC 210.

[17] Criminal Law: Text, Cases, and Materials (6th edn, OUP 2014) 74.

[18] ‘Liability for manslaughter by omissions: don’t let the baby drown!’ (2010) 74(2) JCL 163, 164.

[19] ‘Good Samaritan Laws a Global Perspective’ (1997-98) 20 Loyola LA Int’l & Comp LJ 591.

[20] ibid 597.

[21] ‘Some Brief Thoughts (Mostly Negative) about Bad Samaritan Laws’ (2000) 40 Santa Clara LR 971, 981-9.

[22] Central Issues in Criminal Theory (Hart Publishing 2002) 39.

[23] Dennis J Baker, Glanville Williams Textbook of Criminal Law (3rd edn, Sweet and Maxwell 2012) 559.

[24] Intention, Agency and Criminal Liability (Wiley-Blackwell 1990) 61.  

[25] [2016] UKSC 8.

[26] [1975] AC 55.

[27] [1985] 1 AC 905.

[28] [1986] AC 455.

[29] [1986] 1 WLR 1025.

[30] [1999] 1 AC 82.

[31] [2003] EWCA Crim 192. Here, the court said the law has not yet reached a definition of intent in murder in terms of appreciation of a virtual certainty.

[32] [2008] EWCA Crim 1222.

[33] Discontinuing the life support.

[34] David Ormerod & Karl Laird, Smith, Hogan and Ormerod’s Criminal Law (15th edn, OUP 2018) 510.

[35] ‘After Woollin’ [1999] Crim LR 532.

[36] [1947] KB 997 CA.

[37] ‘Oblique Intention’ [1987] 46(3) Cambridge Law Journal 417, 428.

[38] ‘Distinguishing between Murder and Manslaughter in Practice’ (2007) 71 J Crim L 318.

[39] Report of the Select Committee on Murder and Life Imprisonment (HL 1989, 78-I).

[40] [2000] 4 All ER 961.

[41] A New Homicide Act for England and Wales?: A Consultation Paper (Law Com No 177, 2005).

[42] ibid para 10.15.

[43] ‘Codifying the Meaning of “Intention” in the Criminal Law’ 73 JCL 394, 407.

[44] (n 41) para 10.16.

[45] (n 43).

[46] ‘Conditional Oblique Intention’ [2004] Crim LR 284.