OMISSIONS ESSAY PLAN 2:

In the criminal law of Omissions the ‘checklist’ of situations says little about whether these
exceptions should exist or, indeed, whether the general
rule of no liability for
omissions is defensible.
Discuss.

Introduction (284) YES CHECKLIST, NO GENERAL LIABLITY:

Criminal law generally punishes for actions people perform, rather than inactions they
fail to perform. Courts have been reluctant to apply these offences; in general there is no
liability for omissions1. However, several common law categories have emerged which
are exemptions to this general rule, here there is liability attached for a failure to act, in
addition to statutes that already punish omissions (as in Lowe2??). Ormerod summarises
the situations in which there is a duty to act arises: (a) a family, close or special
relationship (b) an assumption of responsibility (c) a duty arising from employment
(d) a dangerous situation created/supervening fault3. The existence of the exemptions
can be condensed to their fundamental elements of preserving autonomy whilst
maintaining protection. The autonomy argument stems from the conventional view
insisting on freedom of action and liberty. Whilst protection can be split into protection
for the public (from unnecessary burdens) and for vulnerable individuals (from
maltreatment and neglect). This not only safeguards but also gives consistency to the
legal system. In contrast the arguments for abandoning the checklist are moralistic and
naïve – endorsing an impractical ‘social responsibility’ attitude. There is obviously
scope for reform in this area, the most common being the imposition of an ‘easy rescue’
in which a rescue would be performed if it were safe and easy to do so. However the
wider societal repercussions involve encroaching onto the autonomous and protection
elements that the checklist provides. Moreover, issues such as mass arrests and
jeopardising prior care networks may arise from such a duty.
The checklist essentially justifies the rule of no liability by chiefly encouraging and
preserving key values of the criminal law – protection and autonomy and consistency.
(Hammered autonomy, protection too much?)

Paragraph 1: Autonomy vs. Social Responsibility (180)

AUTONOMY (NO LIABILITY): The most convincing argument as to the existence of the
checklist is the freedom, autonomy and liberty it provides. Indeed the checklist limits
burdens placed upon citizens and resulting liability for non-actions. Supporting
arguments to preserve these key societal values are dominated by two competing
theories – the conventional view and the social responsibility view. The “conventional
view” provides the main buttress – proposing that liability should only be imposed in
exceptional circumstances retaining personal freedom4. The importance of this was
confirmed in R v Smith5 when the jury was instructed to take self-determination of the

1
Ashworth & E. Steiner, ‘Criminal Omissions and public duties: the French Experience’ (1990)
10 Legal Studies 153 pg?
2
[1973] All ER 805
3
D. Ormerod Smith and Hogan’s Criminal Law (Oxford: OUP 2011 13th Ed)
4
Ashworth, ‘The Scope of Criminal Liability for Omissions’ (1989) 105 Law Quarterly Review
424
5
[1979] Crim. L.R. 251.
victim into account6. In this instance a husband was charged with manslaughter for
failing to take care of his wife. Although discharged the jury were initially tasked with
balancing the victim’s capacity to refuse treatment against failures on Smith’s behalf. R
v Bonnyman7 reinforces this idea, suggesting that a duty can be negated if the victim has
the capacity to refuse help. Indeed these cases establish that the checklist serves to
preserve autonomy, including that of the victim, holding it in the highest regard.

312
PARA COULD BE CLEARER? > It appears, however, that Ashworth favours the
contrasting view of “social responsibly”; which aims to imposes a general duty to assist
persons in perilous situations8. Ashworth’s favoured interpretation is built upon the
belief that each human’s right to life should be “intrinsically valued”. At a minimal level
he encourages people who can to easily intervene in hazardous situations9. This is
epitomised in the French Penal Code, which sets out duties to report serious crimes10,
prevent criminal offences taking place11 and assist those in peril 12. Ashworth and Steiner
commend these edicts for their success in balancing duties and limitations, however
these Articles must be set in context. Introduced during the German occupation in 1945,
partly to halt terrorism directed at the German Army13, these Articles would likely not
prevail in our modern, individualistic society. When examining this context Ashworth’s
“social responsibility” attitude appears naïve and out-dated – his belief that a more
generalised liability should exist seems implausible in our inward-looking society. In
spite of this our system is not completely abstract from the French. Although there is no
general duty to assist those in peril we do punish the most serious omissions by statute.
A prime example is the Children and Young Persons Act 193314, which punishes for
failing to care for a child. These statutes compliment the common law exemptions,
which provide for a small amount of other omission situations. Our system, rightfully so,
is distinctly less paternalistic. Williams, a conventionalist, praises this suggesting that
the criminal law is not intended to bring “the ignorant or lethargic up to scratch”15.
Indeed even social responsibility approach would struggle to do this – even so would
unlikely have the same effect as on our European counterpart. Ultimately the
conventional approach is straightforward, specifying where our duties lay, conserving
autonomy whilst providing much needed consistency to our legal system.

AUTONOMY (CHECKLIST): 226

From these distinct duties the assumption of responsibility and creation of dangerous
situations in particular have given rise to situations in which freedom of action must be

6
Self-determination also seen in R v Bonnyman
7
(1942) 28 [Link].R. 131.
8
Ibid, 426.
9
A. Ashworth, ‘The Scope of Criminal Liability for Omissions’ (1989) 105 Law Quarterly
Review 424.
10
Article 62.
11
Article 63(1).
12
Article 63(2).
13
Ashworth & E. Steiner, ‘Criminal Omissions and public duties: the French Experience’ (1990)
10 Legal Studies 153, 157.
14
Children and Young Persons Act 1933 s.1(2). See also Terrorism Act 2000 s.19.
15
G. Williams, ‘Criminal omissions – the conventional view’ (1991) 107 Law Quarterly Review
87.
restricted. One example is shown in R v Miller16, which concerned a fire that Miller
omitted to put out. The House of Lords, in an aim to protect property, highlighted the
“particularly dangerous…speed of spread”17. Evidently Miller’s omission was so severe
that there was a “capacity to damage…persons and property” and sufficient threat to
“those whose daily duty it is to fight fires”18 that autonomy was deemed acceptable to
curtail to avoid the endangerment of others. R v Sinclair and R v Ruffell also supported
this notion suggesting that the general rule of no liability for omissions should be
respected, only truncating freedom of action in circumstances that require dangerous
behaviour to be denounced. Evidently liability is only imposed severe cases where
courts aim to limit misadventures (like substance abuse) whilst preserving freedom.
Moreover, as R v Ruffell19 illustrates, courts are also reluctant to impose lengthy
sentences for omission offences. In this instance a two-year sentence was substituted for
Ruffell who assumed responsibility for the victim, a former addict, who abused heroin.
When examining these cases alongside Smith20 it’s evident that the exceptions primarily
exist to punish certain omissions in serious circumstances whilst preserving autonomy at
large.

Paragraph 2: Protection vs Restriction (348) PITTWOOD/DYTHAM - 294

P V R (CHECKLIST): Alongside this, consistency should also be a permanent feature of
any legal system – it benefits both the rule of law and society alike. Honoré in particular
emphasises the link between a stable criminal law and a “relatively stable world”21. The
checklist to a certain extent exists to afford consistency to the criminal law by setting out
distinct duties that we must confer to certain people. These duties protect people by
limiting liability for failures to act22. There are criticisms though; Elliot concedes that the
checklist is “unnecessarily restrictive”23 in the way liability is afforded. She criticises the
Law Commission who are hesitant to impose general liability because of the
“floodgates” argument, in which the general imposition of liability will leave the public
exposed24. However, the checklist exemptions are intended to be somewhat restrictive to
prevent the unnecessary burdening of the public. As demonstrated in R v Pittwood25
omissions are only concerned with certain relationships, specifically those that involve
public protection. In this instance a level-crossing guard omitted to close the barrier
(applying R v Instan26) resulted in criminal liability for manslaughter. Pittwood
introduced certainty into the system by clarifying when a duty existed under a contract
of employment. The checklist is clearly appropriate since this duty was questioned again
in R v Dytham27, where a police officer omitted to keep the peace, give rise to a
16
[1982] UKHL 6, [1983] 2 W.L.R 539.
17
Ibid, per Lord Diplock @ 172.
18
Ibid.
19
[2003] EWCA Crim 122, (add neutral citation)
20
[1979] Crim. L.R. 251.
21
Honoré, Simester’s article
22
A. Simester, J. Spencer, G. Sullivan & G. Virgo Simester and Sullivan’s Criminal Law
(Oxford: OUP 2013 5th Ed)
23
C. Elliot. ‘Liability for manslaughter by omission: don’t let the baby drown’ (2010) 74(2)
Journal of Criminal Law 164
24
C. Elliot. ‘Liability for manslaughter by omission: don’t let the baby drown’ (2010) 74(2)
Journal of Criminal Law 164, 173
25
(1902) 19 T.L.R 37
26
[1893] 1 Q.B. 450
27
[1979] 3 All ER 641
murderous assault. As in Pittwood, Dytham displayed “deliberate failure and wilful
neglect”28 that was a risk to the public. Both Dytham and Pittwood had undergone the
relevant training and were employed to ensure public safety. The fact that they owed a
duty because they are more qualified to deal with perilous situations highlights the
protective elements of the checklist over the civic safety.

P v R (NO LIABILITY): 105

Indeed the duty is placed on the people with a special connection to the harm, not the
general public to act, as they would likely be useless in a situation such as this that
requires relevant skill and training29. The general rule of no liability for omissions is
largely justifiable then since the checklist offers constancy for citizens who are not
versed to think of their actions (or non-actions) “in the realm of legal duties to act”30 like
Pittwood and Dytham ought to have been. Destructively, without such a checklist the
criminal law would “presents individuals with far fewer opportunities to avoid
liability”31.

Paragraph 3: Feminist Opinion STONE AND DOBINSON: 306

PROTECTION (CHECKLIST): Protection from the checklist is two-fold; not only
protecting the public from unnecessary burdens but it also exists to safeguard vulnerable
individuals. R v Stone and Dobinson32 is a perfect example of this protection. In this
instance Stone’s sister was “morbidly anxious”33 about gaining weight and would for
this reason not eat or bathe. Despite the fact she was emaciated and had bedsores Stone’s
mistress Dobinson failed to alert a doctor or a social worker that visited the house every
week. Although vaguely described as “ineffectual and inadequate” Dobinson still owed
a duty since she voluntarily undertook responsibility of the victim. On a most basic level
she “was aware of the poor condition” of the victim and failed to alert the authorities34.
Relational feminists, analysing the ‘special relationship’ category, utilise Stone and
Dobinson to demonstrate the checklist’s oppressive features. Primarily Alan Norrie
submits that the checklist was intrusive, suggesting Dobinson’s voluntary undertaking
wasn’t completely consensual35. Cobb gives weight to this notion suggesting that judges
acted in accordance with the “masculine vision” of care-giving responsibilities36.
However, all previous statements that may have intimated that Stone controlled her were
later denied37. Although seemingly unsympathetic the courts were in some ways
required to punish for this “harrowing death”. However, it was not without full
investigation of the circumstances – eventually concluding that Dobinson was evidently
indifferent to the risks posed to the victim, acting recklessly in not reporting the

28
[1979] 3 All ER 641 at 644
29
A, Simester, J. Spencer & G. Sullivan, Simester & Sullivan’s Criminal Law Theory and
Doctrine (Hart: (2013) 5th Ed)
30
Ashworth, ‘The Scope of Criminal Liability for Omissions’ (1989) 105 LQR 424, PG
NUMBER
31
Ashworth, ‘The Scope of Criminal Liability for Omissions’ (1989) 105 LQR 424, PG
NUMBER
32
[1977] 2 All ER 341, CA.
33
Ibid, 343.
34
Ibid, per Geoffrey Lane LJ 346
35
A. Norrie, Crime Reason and History (Cambridge: CUP, 2001), p.127
36
Cobb – masculine features
37
Ibid, per Geoffrey Lane LJ 345
condition when she had ample opportunity to38. Though superficially insensitive to
Dobinson’s limited intelligence if the courts had gone in a different direction it may
have given rise to the neglect of vulnerable people. Indeed this would contradict the
checklist’s purpose for existing. Despite the less prison sentence she was still prosecuted
under the checklist of exemptions, highlighting the defensive elements, in particular for
helpless individuals.

>Protection for own family – already in checklist 275

PROTECTION (NO LIABILITY): Upon further investigation it’s clear that the exemptions
not only benefit the wider public and vulnerable individuals but also have broader
repercussions. If we take the (somewhat dogmatic) idea that “mother-child dyad [is] at
the heart of care”39 to be true then the checklist is significant to women (and care-givers
alike). Indeed it is these groups who may jeopardise their prior care-networks if they
were forced to act in order to save another in a perilous situation40. Returning to the
social responsibility view it is not to say that there are not benefits from treating all
human beings “indistinguishable from each other”41. However, abandoning autonomy in
order to strive for a more cooperative world, as advocated by Feminist legal scholar
Robin West, would evidently be inappropriate (if not impractical)42. Although not
immediately regarded as a moral action it could be argued that not acting in a perilous
situation could actually be more appropriate in order to be there for others that have a
dependence, for example a sole carer to a disabled child. In this instance no liability for
omissions would be justified as Cobb draws attention to the importance of “complex
networks of priorities of kinship”43 which may prompt a “refusal to rescue” in a
hazardous situation. Simester affirms the idea indicating that it is better to act to the
detriment of a drowning stranger, although unethical it allows successful pursuit of
personal goals without hindering loyalty to on-going commitments44. As previously
established statute combined with the checklist of exceptions generally provides
adequate protection without constricting autonomy or burdening individuals with the
thought that they must act in dangerous situations.

Paragraph 4: Reforms – Easy Rescue (199)

A recognised alternative to imposing a general duty to act is the imposition of an ‘easy
rescue’ duty. If we follow the preferred conventional view there may be a
“fear of vagueness” in imploring such a duty, especially as to which standard to hold the
rescuer to – an objective or subjective45. This reform conflicts with previous arguments
in favour of refusing to rescue in order to preserve priorities of care. Weariness
“elasticity in the expansion” is recommended since it could prompt mass arrests46..
38
Which para did conclude that Dobinson should be convicted?
39
[Link], ‘Compulsory Care-Giving: Some Thoughts on Rational Feminism, the Ethics of Care
and Omissions Liability’ (2008) 39 Cambrian Law Review 11.
40
[Link], ‘Compulsory Care-Giving: Some Thoughts on Rational Feminism, the Ethics of Care
and Omissions Liability’ (2008) 39 Cambrian Law Review 11, 13
41
R. West, ‘Jurisprudence and Gender’ (1988) 55(1) University of Chicago Law Review 1.
42
Ibid, pg4
43
[Link], ‘Compulsory Care-Giving: Some Thoughts on Rational Feminism, the Ethics of Care
and Omissions Liability’ (2008) 39 Cambrian Law Review 11, 8?
44
A. Simester, ‘Why Omissions are Special’ (1995) 1 Legal Theory 311
45
FIND QUOTE! – Ormerod or Simester’s article.
46
C. Elliot ‘Liability for manslaughter by omission: don’t let the baby drown!’ (2010)
Journal of Criminal Law 163
Indeed bystanders may be held accountable for failing to help despite not being fully
aware or able to help. It would be incredibly difficult to place “limits on the scope of a
duty to aid” in todays liberal society47. This of course also encroaches onto autonomous
territory, going further than statutes and the checklist in restriction. The reform goes
fundamentally against the criminal law’s values to protect citizens, not coerce benefits48.
Parliament cannot legislate on all possibility and a situation arising in which a person is
not required to act by statute or checklist is undoubtedly rare. The checklist exists in
order to cover omissions in novel cases that statutes cannot cover.

Conclusion: DON’T HAMMER HOME TOO MUCH

The conventional view is the apparent champion here, since assessing the social
responsibility view it is determined that collective responsibility to act in perilous
situations is a flawed ideal. It unnecessarily burdens citizens, restricting freedom of
action and exposes them to “limitless liability”49 instead of acting as a shield. Moreover,
it has been established that the exceptions avert maltreat and neglect of vulnerable. The
checklist exemptions validate the lack of liability for omissions by providing an area in
which novel cases can be examined without the need for statute.
^Terrible conclusion pls give me tips

SIMESTER WHY OMISSIONS ARE SPECIAL:

- Conventionally distinguish between strangers who fail to act and those who kill
because the first is not culpable “an omitter is prima facie not responsible for the
consequences of her omission when an actor is”
- Michael Moore “not-doings….are simply absent actions” pg 313 not “causes of
that event or outcome, because they are merely failures to prevent
47
FIND QUOTE! – Ormerod or Simester’s article.
48
Simster? “law’s function is primarily to prevent harm rather than to coerce benefits”
49
Ibid (Elliot)
- Honoré: “If human routine is required by a norm, the violations of it is an omission
which will entail responsibility”
- “lack of prima facie connection underwrites an initial liability to intervene…must then
be overridden by further reasons”
- The Law Commission provide sustenance to this argument questioning that if
lawyers on a Government committee find it challenging to state the law then “what
hope have the Stone and Dobinsons of this world of ascertaining their legal position
[?]”50.
- Ultimately checklist situations need to be preserved and general liability not justified
because gives consistency to the courts, allows people to see where their duties lay,
no mass arrests (Simester) and Law Commission = retaining common law because it
is difficult to codify51/ “limitless liability”52
- Dressler suggests that “already some identifiable criteria, such as status relationship
of the parties…personal connection to the emergency”.

Law Commission (No 237, para 3.16) - Ashworth

DONE:

50

51
C. Elliot ‘Liability for manslaughter by omission: don’t let the baby drown!’ (2010) Journal
of Criminal Law 163, pg number
52
Ibid (Elliot)
- morality rather than legality – indeed citizens do not think about their actions in the
“realm of legal duties to act” 53. Indeed other commentators share this view, Williams
suggesting that Ashworth translates “law into morals rather than morals into law”54
- English courts have been reluctant to apply offences or “commission by omission”.
Indeed in at least one respect the English courts have moved further towards
criminal liability for omissions than their French counterparts, whereas the English
courts have developed omissions liability for complicity in certain situations” 55
- world” PARA 2 (Indeed if the aim of the criminal law is to “preserve a relatively
stable world then general liability should be justified because if we impose a general
duty to act and thus general liability we may have mass arrests and confusion among
judges, provoking instability (if we have general duty to act may give judges too
much discretion – taking away from Parliament, abusing the Rule of Law” 56
- Checklist makes things consistent – e.g. we know where our duties lay (Evans,
Miller, Ruffell – there have been incremental developments) THEN
Blum states that altruistic feelings cannot be imposed from above but much be felt
within the very soul of an individual (From Cobb article) contrast with quote
PRAISING CHECKLIST – CASE about how checklist is also regulatory (Dytham,
Pittwood…. protecting general public?)
- Lending support to this idea Herring suggests the threat of prosecution will unlikely
compel a bystander to act57.
- Ashworth’s conventional view is cautious about this suggesting that it must be
“reasonable in terms of prevailing circumstances and individual’s capacity”58. Th
- R v Sinclair59 Sinclair was deemed to owe a duty to the victim, despite several
people being aware of the victim’s condition. Sinclair’s “brother” like relationship
coupled with knowledge that the victim was not an addict, could’ve given rise to a
legal duty, had the jury been properly directed60.
- The defined list of exceptions in which one must act prevent “elasticity” 61 within the
law, fostering key values such as autonomy and consistency.
-
- COULD INCLUDE: SELF DETERMINATION: Bonnyman (1942) 28 [Link] 131 AND Smith [1979]
Crim.L.R 251 – exceptions promote personal autonomy
- /NO COLLECTIVE RESPONSIBILITY, UNFAIR TO BURDEN PEOPLE/
- - :involves the sacrifice of fewer options” …”more likely to leave the defendant with
a chance of conforming without significant derangement” (342)

Bibliography:

53
Ashworth, ‘The Scope of Criminal Liability for Omissions’ (1989) 105 Law Quarterly Review
424
54
G. Williams, ‘Criminal omissions – the conventional view’ (1991) 107 Law Quarterly Review
88
55
A. Ashworth & E. Steiner, ‘Criminal Omissions and public duties: the French Experience’
(1990) 10 Legal Studies 153
56
A. Simester, ‘Why Omissions are Special’ (1995) 1 Legal Theory 311
57
J. Herring, Criminal Law Text Cases and Materials (Oxford: (2015) 6th ed)
58
Ashworth – scope of omissions?
59
[1998] EWCA Crim 122; (1998) 148 N.L.J 1353
60
Ibid, per Rose LJ VP
61
Sinclair - Per Rose LJ
Cases:
R v Evans [2009] EWCA Crim 650, [2009] 1 WLR 1999.
[1973] All ER 805
[1979] Crim. L.R. 251
R v Bonnyman (1942) 28 [Link].R. 131.
[1982] UKHL 6, [1983] 2 W.L.R 539.
[2003] EWCA Crim 122, (add neutral citation)
(1902) 19 T.L.R 37
[1893] 1 Q.B. 450
[1979] 3 All ER 641
[1977] 2 All ER 341, CA.

Journal Articles:
A. Ashworth & E. Steiner, ‘Criminal Omissions and public duties: the French
Experience’ (1990) 10 Legal Studies 153.

A, Ashworth. ‘Manslaughter by Omission and the Rule of Law’ Criminal Law Review
pg?

A. Ashworth. ‘Public Duties and Criminal Omissions: Some Unresolved Questions’

[2011] J Commonwealth Criminal Law 1.

A, Ashworth, ‘The Scope of Criminal Liability for Omissions’ (1989) 105 Law Quarterly
Review 424.

A. Simester, ‘Why Omissions are Special’ (1995) 1 Legal Theory 311.

A, Smart ‘Criminal responsibility for failing to do the impossible’ (1987) LQR 532.
Quarterly Review 424.

C. Elliot ‘Liability for manslaughter by omission: don’t let the baby drown!’ (2010)
Journal of Criminal Law 163.

D. Baker, ‘Omissions liability for homicide offences: reconciling R. v Kennedy with R.

Evans’ (2010) 74(4) Journal of Criminal Law 310.

G. Dingwall & A. Gillespie. 'Five Perspectives on Omission Liability' 39 Cambrian Law

Review, vi.

G. Williams, ‘Criminal omissions – the conventional view’ (1991) 107 Law Quarterly
Review 87.

[Link], ‘Compulsory Care-Giving: Some Thoughts on Rational Feminism, the Ethics

of Care and Omissions Liability’ (2008) 39 Cambrian Law Review 11.

R. West, ‘Jurisprudence and Gender’ (1988) 55(1) University of Chicago Law Review
1.

W, Wilson. ‘Murder by Omission: Some Observations on a Mismatch between the

General and Special Parts’ 13 New Criminal Law Review 1.

Books:
A. Norrie Crime Reason and History (Cambridge: CUP, 2001).
A. Simester J. Spencer, G. Sullivan & G. Virgo Simester and Sullivan’s Criminal Law
(Oxford: OUP 2013 5th ed).
D. Ormerod Smith and Hogan’s Criminal Law (Oxford: OUP 2011 13th ed).
J. Herring, Criminal Law Text Cases and Materials (Oxford: (2015) 6th ed)

Legislation:
French Penal Code, Articles 62, 63(1)(2)
Children and Young Persons Act 1933 s.1(2)
Terrorism Act 2000 s.19