Omission Liability In Criminal Law

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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…
The defendant may be criminally liable for omitting to act provided that the crime is one which may be committed by omission and the defendant is in breach of some legal duty to act. It is generally believed by some theorists that omission liability plays an insignificant role in the criminal law and there are others who suggest that the scope of omission liability should be widened to include a wide range of conduct that are subject to criminal sanctions. Also, there is concerns that how should such liability be constructed, for example, would it unfairly penalized an innocent passer-by? The modern legal system tends to adopt the concept of ‘duty to act’, whereby it is an offence if a person who has a duty to act failed to act in a required state. One can debate whether (and to what degree) duties of compassion and solidarity exist between citizens, and whether the state should punish their violation. For instance, Section 323c of the German Criminal Code fails to explain the distinction between moral and legal duties of general duty to aid and this is rather vague. People who are supporting criminalisation of omission tend to stress the need to distinguish between ‘acts’ and ‘omissions’, the former are rightly of concern to the criminal law and the latter, are only of interest to the criminal law if the ‘omitter’ had a duty to act under…show more content…
In other words, the exceptions to the general rule. Firstly, there is a statutory duty to act, for example, failure to keep a dangerous dog under control in a public place would amount to criminal liability under the Dangerous Dogs Act 1991. Even in common law, there are a few offences which involve liability for omission. In R v Mavji, the director of the gold trading company was convicted of cheating the public revenue as he has failed to make value added tax returns and charged tax on sales for which it failed to account. Secondly, there is a duty owed by a public officer which means that police officers are under a duty to assist the general public in danger. A public officer who wilfully and without reasonable excuse or justification neglected to perform any duty he was bound to perform by common law or statute was indictable for the common law offence of misconduct in a public office. Next, the criminal law also imposes a duty to act if the failure to fulfil a contractual obligation is likely to endanger lives. In Pittwood, the gatekeeper who had forgotten to close the gate after letting a road user pass, was said to be employed to protect the public, and it was possible for a man to incur criminal liability from a duty arising out of a contract. Besides that, duty of care arouses from the voluntary assumption of care for another. This means that people who expressly or impliedly volunteer to assume

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