High 2:1 Critical Analysis Essay on Omissions Liability
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Course
LLB Law (M100)
Institution
Cardiff University (CF)
+ High 2:1 (68) Critical Analysis Essay on Criminal Omission Liability.
+ 1089 Words.
+ Discusses and analyses the opposition between the conventional view and the social responsibility view, using cases and academic critics to illustrate the problems with each view.
+ Discusses and evaluates ...
English law has generally been reluctant to impose omissions liability compared to that of
other jurisdictions, such as France, who implements a general duty for easy rescue. However,
there are exceptions to this exclusionary rule, where the defendant has a duty to act under a
statute or common law. For example, the Road Traffic Act 1988 exerts a duty to report a road
accident, failure to do so leads to an offence1. At common law, there are duties based on
familial relationships2, contract3, public duties4 and duties to avert a danger created by a
defendant5. Whilst most favour this general exclusionary rule, as it appreciates autonomy,
others have asserted that English law should widen the scope for omissions liability, to which
arguably, English law has incrementally been doing.
The conventional view proposes that the law should ‘be reluctant to impose liability for
omissions except in clear and serious cases’6. Justice regards us as free and individual
decision makers, without the principle of autonomy in our legal system, it’s difficult to find
honest culpability, and this is what the conventional view embodies. Conventionalists believe
there is a moral and culpable distinction between acts and omissions, and this view has been
reflected in the case of Bland7. The court decided that the withdrawal of life-saving treatment
was considered as an omission, namely because it is less culpable than an act and the courts
did not want to deter doctors from serving the patient’s best interests in threat of prosecution.
On the same limb of autonomy, conventionalists also argue against the duty for easy rescue,
with Ashworth arguing that ‘to impose a duty to do X at a certain time prevents the citizen
from doing anything else at a certain time’ and that ‘criminal law should recognise an
individuals choice rather than allowing liability to be governed by chance’8.
1
Section 170 Road Traffic Act 1988
2
R. v Gibbins and R. v Proctor [1918] 4 WLUK 25
3
R. v Pittwood (Philip) [1902] 1 WLUK 19
4
R. v Dytham (Philip Thomas) [1979] Q.B. 722
5
R. v Miller (James) [1983] 2 AC 161
6
Ashworth, ‘The Scope of Criminal Liability for Omissions’ [1989] LQR 424
7
Airedale NHS Trust v Bland [1993] A.C. 789, 2 W.L.R. 316
8
Ashworth, ‘The Scope of Criminal Liability for Omissions’ [1989] LQR 424
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