Theories Of Omission

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Introduction First of all, a defendant will only be found guilty of a crime if the prosecution can establish two main elements of a crime, which are actus reus and the mens rea. Actus reus is the wrongful act or omission that comprises the physical component of a crime. Mens rea is a person’s awareness of the fact that his or her conduct is criminal. For a defendant to be held liable, it has to be proved that the defendant voluntarily performed the act or omission. In Hill v Baxter , it was established that the driver did not commit the offence voluntarily as he was attacked by a swarm of bees when driving. This shows that criminal law is concerned with fault on the part of the defendant apart from a positive and voluntary act, which are…show more content…
It has been stated that the distinction between misfeasance and non‐feasance is “deeply rooted in the common law” . This distinction may have been downplayed by commentators and theorists in certain circumstances; however the distinction appears to be embedded in the law . An example of the difficulty in drawing the distinction can be seen in the case of Speck , where a man had an erection as a result of a girl placing her hand on his genital area but the man did nothing to remove her hand. The question then arises, by doing nothing to remove her hands away, was it an ‘act’ or an ‘omission. Ostensibly, it appears to be an omission, however, it was held that it was an act. There has been an historic tendency on the part of the courts to limit the circumstances in which an omission may be subject to criminal liability by adopting an extremely narrow interpretation of an omission . Here, the distinction between ‘acts’ and ‘omission’ will be deeply defined and to see whether if there is a need to distinguish them. Criminal liability is typically divided into two parts, which are actus reus and mens rea, as mentioned earlier. Conventional theory tends to assert that a pre‐requisite for criminal liability is a ‘voluntary act’ on the part of the accused . The ‘act’ is incorporated in the actus reus and the ‘voluntary’ element satisfies the mens rea. This demand for a ‘voluntary act’ is generally referred to as the ‘act requirement’. The rationale behind this theory is that the criminal law is concerned with wrongdoing, the paradigm of which takes the form of voluntary action . Conventional theory places strong reliance on the concept of ‘acts’ being centred on physical movement. According to Moore, an act is defined as the agent’s willful bodily movement . Thus, killing would be defined as the agent’s movement

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