The document discusses the advantages and disadvantages of criminalizing omissions in law. Currently, the common law only considers acts as criminal offenses and not failures to act, in order to protect individual autonomy. However, there are six exceptions where the law imposes a duty to act, such as in special relationships like between parents and children, when voluntarily assuming responsibility for someone, or when needing to avert a danger created by the individual. There are debates around whether criminal liability should be expanded to omissions based on either a conventional view of prioritizing individual freedom, or a social responsibility view of having a duty to help those in peril. The conclusion is that omissions can lead to crimes in some circumstances and the law needs clearer parameters
The document discusses the advantages and disadvantages of criminalizing omissions in law. Currently, the common law only considers acts as criminal offenses and not failures to act, in order to protect individual autonomy. However, there are six exceptions where the law imposes a duty to act, such as in special relationships like between parents and children, when voluntarily assuming responsibility for someone, or when needing to avert a danger created by the individual. There are debates around whether criminal liability should be expanded to omissions based on either a conventional view of prioritizing individual freedom, or a social responsibility view of having a duty to help those in peril. The conclusion is that omissions can lead to crimes in some circumstances and the law needs clearer parameters
The document discusses the advantages and disadvantages of criminalizing omissions in law. Currently, the common law only considers acts as criminal offenses and not failures to act, in order to protect individual autonomy. However, there are six exceptions where the law imposes a duty to act, such as in special relationships like between parents and children, when voluntarily assuming responsibility for someone, or when needing to avert a danger created by the individual. There are debates around whether criminal liability should be expanded to omissions based on either a conventional view of prioritizing individual freedom, or a social responsibility view of having a duty to help those in peril. The conclusion is that omissions can lead to crimes in some circumstances and the law needs clearer parameters
Critically consider the advantages and disadvantages of
criminalising omissions. Do you consider the current law
adequate? The common law traditionally prohibits acts and does not criminalize omissions. Therefore, no liability will arise in relation to a failure to act as this would restrict individual autonomy. This means that a person can only usually be held criminally liable where he has performed a positive act. However, there are six exceptions where the law imposes a duty to act upon a person and failure to so act can lead to criminal liability. Firstly, there is an exception which applies where there is special relationship between parties. There are two types of relation among the people on is by blood and the other is by subsequent relations. Usually parents are duty bound to take care of their children, this duty is both imposed by law and by morality on them, and therefore they are under a duty to protect their children from any kind of physical harm. In the famous case of Gibbons and Proctor, both man and the woman were charged guilty due to starving the child to death by stopping to provide it food, the man was charged because he was under a duty to take care of his child while the wife who took money from the father of the child automatically owes a duty towards the child to look after it. These special relationships will impose a duty upon the defendant to act. Regardless, there is still uncertainty over the extent to which this category compromises such as relationships between siblings and spouses. Next, voluntarily assuming responsibility for someone is another exception to the general rule. When a defendant voluntarily assumes responsibility for someone, the law imposes a duty upon them to continue to do so. If a couple takes a duty of care for a child to look after him and they are being paid for it that is called contractual duty. Based on this, any failure to act in accordance to the terms of the contract may result in criminal liability as shown in R v Pittwood. On the other hand, where a couple assume a duty of care towards their vulnerable relative they assume a duty of voluntary responsibility to look after him and take care of him, failing to do so they may be charged for criminal offence. This rule was
followed in the case of Stone v Dobinson where the defendant
was liable for a criminal gross negligence for not taking care of their infirm relative. Similarly, a person in public office, such as a police officer, will have a duty to act in accordance with their position. A statutory provision may also impose a duty on a person to act. There is also a duty on a defendant to act in order to avert a danger which he has created. In R v Miller, the defendant had fell asleep while smoking a cigarette and woke to find the mattress on fire. Without putting out the fire, he had gone to another room and fell asleep again. The defendant was then convicted of arson. When the defendant noticed the fire, he was under a duty to take steps to avert the danger and thus he was convicted due to his failure to so act. With these exceptions laid, there are two academic arguments relating to whether or not criminal liability should be imposed for an omission to act. Professor Williams advocates the conventional view whereas Professor Ashworth prefers the social responsibility view. The conventional view is that no person should be compelled to serve another and Professor Williams argues that there is a clear moral distinction between an act and an omission whereby he states that we have stronger inhibitions against active wrongdoing than against wrongfully omitting. According to this view, the law aims to maximize each individuals autonomy and liberty. Citizens should not be encouraged to interfere in the lives of strangers, nor should they be forced to help strangers as imposing such duties upon citizens would be too onerous. Imposing a duty on individuals to act to help another in peril would also increase the possibility of mass liability and would be impractical. In a situation where a swimmer is drowning in the sea, who does the law compel to help the swimmer? Should everybody be liable for not assisting? The conventional view holds that the criminal law should only impose liability for omissions in clear and serious cases and
should be confined to situations where the defendant has
assumed responsibility or where there is a special relationship. In contrast, the social responsibility view is that one should be under a legal duty to assist another because society recognizes that we have a duty to support and help each another. This approach relies on the argument that all of society will benefit from a duty to be helped when in extreme peril. However, it safeguards liability by insisting that the peril far outweighs cost or inconvenience to the person required to assist. Professor Ashworth argues that liability should be limited to those who had particular opportunity to assist. In conclusion, it has been proved by the cases and recent verdicts of the courts that omission in some circumstance can lead to some serious crimes, like murder and manslaughter. There are cases where we can say that omission gives birth to gross negligence and it needs to be brought in a circle of statue and there should be some proper laws and statue to tackle with this type of omission. It can only be made possible making clear and bold laws where failing to act should be punished. The parameters of the duties should be much clearer. In the cases relating to close relation there should be a line drawn between who owes duties towards whom? It would be very much difficult to punish all the by standers who watched a child drowning, so the criteria of punishing the people for not doing should be handled carefully. In the complicated cases of omission, it should be the court who decides the duties or negligence. In each and every case the punishment for the omission should be dealt with outmost care.
“Section 172 of the Companies Act 2006 is nothing more than statutory ‘window dressing’. It adds nothing at all of substance to the director’s traditional fiduciary duty of loyalty. It is also confusing and creates unnecessary uncertainty for directors with regard to their legal liability risk.”