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Simple notes on Omissions and Automatism
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Criminal LawLecture 1 – Omissions, Automatism and State of Affaires
Actus reus –
- It's role is to identify the conduct element which criminal law considers harmful
- It tells us what we can and cannot do
- The mens rea and defences enable us to decide whether the defendant is to blame
for their conduct
It can involve 3 different aspects
1. Proof that the D did the particular act (intervening, automatism)
2. Proof that the act cased a particular result
3. Proof that the act or result occurred in certain circumstances
General principles of criminal law –
1) Omission – a failure to act to prevent harm, in criminal law, an omission will
constitute an actus reus (the AR in criminal law consists of all elements of a crime
other than the state of mind of the D, it may consist of conduct, result, a state of
affairs or an omission) and give rise to liability only when the law imposes a duty to
act and the defendant is in breach of that duty
2) Automatism
3) State of affairs
Omissions – generally in English law there is not criminal liability for an omission, however,
there can be if there is a duty to act in a particular way
Consider and review the seminal debate in this arena between professor Glanville Williams
(conventional view of no liability for failing to act) and the contrary perspective advanced by
Professor Andrew Ashworth (wider social responsibility)
- The conventional review (1991) 107 Law Quarterly review 87 – argues for
‘conventional view of no liability for failing to act. Purpose of criminal law is to
punish misfeasance rather than nonfeasance – in general we do not punish
individuals for failing to act – we don’t want a business full of people simply for being
lazy – the point of criminal law is to punish those who have done harm
- The scope of criminal liability for Omissions (1989) 105 LQR 424 – argues that
criminal law should aim to reflect shared values in society that go beyond autonomy
to include broader ‘social responsibility’ across dissonant spectrums of inter-action –
broader idea when the criminal law should impose jurisdiction to protect others e.g.
drugs – looked at the French penal code, imposing different types of penalties with
reasonable steps to help others – in 2013 ‘positive obligations in criminal law’
A D is only guilty of a crime for failing to act where
1. D is under a duty to act
2. D breached the duty
3. Ds breach caused the harm to the victim
, Criminal Law
a) General no duty for failing to act
Airedale NHS trust v Bland (1993) A.C 789 – not a criminal law case, it’s a civil case but the
statements are significant
- This case arose from the Hillsborough tragedy in 1989 – 96 people died due to
overcrowding in a football stadium
- Tony Bland, father of Anthony David bland: victim was injured in the disaster where
he suffered severe brain damage, leaving him in a persistent vegetative state – his
parents along with the medical professionals applied for a court order allowing him
to ‘die with dignity’ – he became the first patient in English legal history to be
allowed to die by the courts through withdrawal of life-prolonging treatment
- Lord Goff’s judgement in the house of lords
- Best interest of the patient – whether best interest of the patient that treatment
which artificially prolonged life be continued
- No hope of recovery – enduring pain and suffering, different ‘ending’ life as opposed
to ‘not continuing life’ – no hope of amelioration
- Commission would be if someone had broken into the hospital and actively turned off
– commission of a positive act - Anthony’s life machine – someone maliciously
switching off a life machine, the interloper is preventing the doctor from prolonging
the patients life
- Lord Mustill: absent a duty, the omission to perform what had previously been a
duty will no longer be a breach of the criminal law – he had no chance of survival, no
longer needed to be fed etc.. his condition was not going to improve
- Omission occurred in this case because the doctors and his parents were doing it out
of his best interest – the doctors were simply omitting to treat i.e. there would be
no liability to simply omitting him
- Defence – necessity – defence to murder, appears to be a balance of harm test
- Links to Tort and Duty of care BUT in terms of criminal its important to analyse
b) Exceptional circumstances where liability for omissions
If 6 exceptional circumstances which need further consideration, there has been
‘creation of obligations beyond omission – commission binary device:
- Contractual
- Parental and familial obligations
- Voluntary assumption of duty of care
- Creation of a dangerous situation
- Statutory
- Public office
Contractual: a well-established basis for imposing liability for omissions is where D has
contractually accepted obligation.
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