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Justin Santiago, BAppSc (Hons), MBA, LLB (Hons) comes from a journalism, market research, intellectual property and strategic communications consulting background. Now based in Melbourne he spends his time advising businesses on how to communicate to their customers as well as writing on various subjects of interest in this blog.

Friday, January 30, 2009


Liability for omission should not be part of English Criminal Law - Justin Santiago

In creating a liability for omission it is important that omission is properly defined and its parameters set so that people are governed by the law as well as by duties as reasonably expected of them. Doing away with liability for omission or restricting liability for omission in very narrow terms in only clear and serious cases may result in a society that did not assume a duty of care with the concomitant extinguishing of the neighbourhood principle and laws relating to negligence. There is also the apparent overlap between omission and act which makes it even more difficult to exclude liability for an omission.

The current law on omission states that there is no liability in criminal law for omissions except in situations where there is a duty to act. Such a duty can arise in various ways : via statute : S 170(4) of the Road Traffic Act 1988 imposes a duty upon a driver involved in an accident to report it to the police or provide his details to other parties involved.

It can also arise via contract : criminal liability will be imposed if what the person was contractually bound to do causes harm or injury when not done. In R v Pittwood a gatekeeper failed to close the gates causing the death of someone.

If there is a special relationship : certain realationships create a duty to act for example parent/child, husband/wife and doctor/patient. These are relationships whether there is dependence, reliance and responsibility : Gibbins and Proctor.

If there is a voluntary assumption of care : a person who has assumed a duty cannot cast of that duty : R v Stone, R v Dobinson.

Dangerous situations : where the accused creates a dangerous situation, it is the duty of the accused to act to extinguish the dangerous situation : R v Miller.

If anything the law has widened the liability for omissions especially with regard to voluntary assumption of care and dangerous situations where there were some positive acts committed at the outset.

It is also not easy to distinguish between an act and an omission. For a doctor, a duty to keep a patient alive extends to a duty not to kill. Parents owe a duty to their children but they also owe a duty not to refuse treatment for their child who was suffering from a serious disease: Re B (A Minor). The position seems to be the same with that of an elderly patient who was incapable of making decisions.

These decisions are made only with the sanction of the courts who are deemed to be the ultimate deciders of whether an omission would amount to a crime. The case of Airedale National Health Services Trust v Bland required that an application for a declaration to discontinue treatment be approved by a court.

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