Criminal Liability Based On Actus Reus By Omissions

Introduction

The foundation of criminal liability rests on the two contemporaneous principles of actus reus and mens rea, which in other words are traditionally described as the ‘conduct element’ and ‘mental element’ of a crime, respectively.

‘Actus Reus’ in its literal English translation would mean a ‘guilty act’. However the phrase embraces much more than what may be a simple positive physical act, by including within its purview, the instances of ‘omission’ or failure to act. The distinction between acts and omissions, as Glazebrook remarked, ‘is deeply embedded in law’².

The forthcoming paper considers the issue, asking whether John, Len and Edward, in their individual capacities, could be held criminally liable under law for their ‘omissions’ that caused the forbidden result, and perhaps, answers the same in the affirmative.

FACTUAL BACKGROUND

Reiterating the facts in brief, while John a drug user and who was also Harry’s half-brother, supplied the Class-A drug (heroin) to Harry, it was Len, a long-time drug addict, who not just assisted Harry in the preparation of the said drug but also injected the same into Harry. Upon the consequent harm caused to Harry by injection of the said drug whereby Harry staggered and collapsed, both John and Len failed to summon help and instead fled away to avoid trouble.

The post-mortem report suggested that had basic first-aid been given to Harry at the time he collapsed, he would more than likely have lived.

For examining the position of John, Len and Edward under law and determining under what circumstances criminal law imposes liability for omissions, reference may be drawn to Fletcher’s classification of the different forms of liability for omissions. Under his first category, liability ensues upon a ‘breach’ of a statutory duty or obligation to act, notwithstanding the result or the outcome of such breach. Said liability flows from ‘conduct crimes’ wherein the omission constitutes an essence of the offence and the outcome is immaterial, as it is only the ‘forbidden conduct’ that forms the basis of liability under law. The second category relates to ‘result crimes’ wherein the liability is imposed upon the perpetrator who fails to intervene, when required, to mitigate or prevent a serious harm or damage (for example, death). Thus occurrence of a particular forbidden result from omission is

¹Glanville Williams, in Criminal Law: The General Part (2nd edn, Stevens & Sons 1961) 20, suggests that ‘Actus reus includes. . . not merely the whole objective situation that has to be proved by the prosecution, but also the absence of any ground of justification or excuse, whether such justification or excuse be stated in any statute creating the crime or implied by the courts in accordance with general principles.’

²P.R. Glazebrook, ‘Criminal Omissions: The Duty Requirement in Offences against the Person’ (1960) 76 L.Q.R 386, 387.

³G.P. Fletcher, Rethinking Criminal Law (Little Brown and Co. 1978).

determinative of liability for result-crimes, which Fletcher describes as ‘commissions by omissions’.⁴

In light of the factual context of the situation created by John and Len which ‘caused’ the death of Harry, the case of John and Len can be said to be a paradigmatic of the latter category i.e. ‘result-crime.’

EXTENT OF LIABILITY

Determining liability for a criminal offence is in itself a multi-tier process and the difficultly becomes manifold in instances where liability arising out of an omission, is under question, as there is no consistent basis upon which liability for omissions can be determined. Even otherwise in cases of liability based on omissions, proving causation does not come easy.⁵

Under Common Law, not every commission by omission shall be susceptible to a criminal liability. For a criminal liability to be based on omissions, ‘it must first be found that there is a duty to act.’ Furthermore, it would not be out of place to mention that ‘where there is a duty to act there is almost inevitably a duty of care.’ Therefore existence of a duty recognised by law, is a pre-requisite for entailing liability for omissions.⁸

However a problematic concern involved herein is the absence of any statutory or absolute Common Law principle for determining the circumstances under which such duty arises and upon whom the same is bestowed. For instance, under the law of manslaughter, as J.C. Smith remarks, ‘there is no authoritative definition on the categories of persons who owe a duty to another’.⁹

In the said scenario the issue which first deems determination is whether John who contributed and Len who created, the life-threatening situation for Harry, owe a ‘duty of care’ under law, to Harry? If so, then it leads to the second limb of the problem that whether the failure/omission on the part of John and Len to summon help when Harry collapsed, would constitute a ‘breach’ of such duty, giving rise to a liability under law?

⁴G.P. Fletcher, Rethinking Criminal Law (Little Brown and Co. 1978) 421.

⁵Similar view has been taken by, Catherine Elliott and Claire de Than, ‘Prosecuting the Drug Dealer’ (2006) 69 M.L.R. 986, 990-991.

⁶Wayne R. La Fave, Criminal Law (4th edn, 2003) 379-380.

⁷ J. Herring and E. Palser, ‘The Duty of Care in Gross Negligence Manslaughter’ [2007] Crim. L.R. 24, 37.

⁸ As explained by Williams, ‘a crime can be committed by omission, but there can be no omission in law in the absence of a duty to act. The reason is obvious. If there is an act, someone acts; but if there is an omission, everyone (in a sense) omits. We omit to do everything in the world that is not done. Only those of us omit in law who are under a duty to act.’ Glanville Williams, Textbook of Criminal Law (2nd edn, Stevens & Sons 1983) 148. See, R v Dytham [1979] 3 All E.R. 641.

⁹J.C. Smith, ‘Commentary on Khan and Khan’ (1998) Crim. L.R. 830, 832.

The answer to the said issues may be found in the principles laid down in the decision of the House of Lords in R v. Miller, popularly known as the ‘Miller doctrine’. Miller, a vagrant who was squatting in a house had inadvertently set fire to a mattress on which he had been earlier smoking. He did not attempt to prevent or extinguish the fire, but instead moved to another room and slept. As a result the fire spread through the entire building and caused extensive damage. Miller’s conviction was upheld in appeal by the House of Lords, on the basis that the convict who created the danger by his own act, although initially unaware of the train of events brought about by him that were likely to cause damage, upon subsequently being aware of the same, recklessly omitted to act ‘to prevent or reduce the risk of damage being caused’.¹¹

Liability in terms of the Miller’s doctrine can thus be said to ensue, where one who although inadvertently caused a chain of harmful events to start, upon becoming aware of the resultant harm or damage flowing from his acts, omits to act or to take reasonable steps to mitigate or prevent such further harm or damage. One who creates a danger automatically falls under a duty to negate the effects of the danger so created by it. ¹²

The duty of care criterion arising from the creation of dangerous situations, has been taken a step ahead by the decision of the Court of Appeal in Evans, a drug homicide case, wherein the defendants were convicted for manslaughter by gross negligence.

Conviction of Andrea Townsend was based on the ‘familial duty doctrine’ arising out of the relationship with the deceased, whereby on account of being a mother, she had assumed responsibility of her daughter and was under a duty to summon help when she realised that on account of her daughter’s ill-condition, she was in urgent need of the same. On the other hand, liability of Gemma Evans was based on the ground of facilitating the creation of a dangerous situation for the deceased by supplying her with fatal drugs and the subsequent omission to summon help even after being aware that the self-injection by the deceased had put her in peril.

Gemma Evans conviction was upheld on the ground that ‘when a person has created or contributed to the creation of a state of affairs which he knows, or reasonably ought to know, has become life threatening, a consequent duty on him to act by taking reasonable steps to save the other’s life will normally arise.’¹⁵

In the case of Evans, thus the Court of Appeal has far stretched the Miller doctrine (based on proof of direct causation) so as to entail liability for homicide

¹⁰[1983] 2 A.C. 161.

¹¹ibid [181] (Lord Diplock).

¹² This is described in the words of Louise Taylor as the ‘doctrine of supervening faults.’ See, Louise Taylor, Elliot and Quinn’s Criminal law (12th edn, Pearson 2018) 17.

¹³R v Evans [2009] EWCA Crim. 650.

¹⁴On duty arising out of ‘special relationships’ see, R v Lowe [1973] QB 702.

¹⁵ibid [31].

offences even for indirect contributions to dangerous situations; such as through mere supply of a noxious drug irrespective of the same having been self-administered by the deceased. The Courts have linked such indirect conduct to the ultimate forbidden result for the purpose of entailing liability upon the perpetrator, just like in situations where omission is the direct cause of the end harm.

Therefore, under Common Law, for justifying criminal liability, a causal connection ought to be demonstrated between the breach and the resultant harm, that is to say that, but for the X’s breach Y would have survived.¹⁷

Unsurprisingly therefore, the principles laid down in Miller and Evans find direct application to individual liability of John and Len. John facilitated the creation of a dangerous state of affairs by supplying the noxious drug to Harry, and remained present when Len injected the drug to Harry and until Harry collapsed. Unlike injection, the act of supply was not the significant direct cause of Harry’s death but a mere ‘indirect’ ‘but-for cause’. However, in terms of authority laid down in Evans, as John facilitated the creation of a dangerous situation, and by remaining present at the time Harry collapsed John could reasonably foresee the consequent life-threatening result of his previous acts, he ought to be under a duty to take reasonable steps to counteract that danger.

Coupled with this, John was also Harry’s half-brother. Even though there is not much Common Law authority on the point of duty arising out of ‘special relations’, such a relational connection between John and Harry further adds an edge to the liability based on omission to summon help and is therefore convincing enough on fact and under law to impute a duty of care.

On the other hand, Len’s assistance in preparation of the drug and subsequent injection of the same into Harry, undoubtedly casts upon him a duty of care to take reasonable steps to counteract the danger which he himself directly created. Len’s omission to summon help, upon becoming aware of the end harm directly resulting from his previous acts, invites liability under law as the said omission was the direct cause of Harry’s death. A direct causative link between Len’s omission and the end harm resulting into Harry’s death is apparent on the face of the facts in as much as, between preparation and injection of the drug by Len and the consequent death of Harry, the chain of causation had remained unbroken. Len’s direct contribution was a ‘but-for’ cause of the end harm i.e. but-for Len’s breach, Harry would have survived. Thus Len stands on the same footing as Miller, for his omission being the direct cause of the dangerous situation and the resultant death of Harry. Therefore, Len’s criminal liability is squarely covered by the Miller doctrine, as Len was under a duty of care for having directly caused the dangerous situation to arise.

¹⁶ Louise Taylor, Elliot and Quinn’s Criminal law (12th edn, Pearson 2018) 18.

¹⁷ See, R v White [1910] 2 KB 124 D.

¹⁸ See, R v Smith [1979] Crim LR 251.

Moving onto the liability of Edward, the same flows from the breach of duty arising out of the contract in terms of which he was employed. Common law recognises liability for the breach of a duty imposed by a contract; for one who omits to perform a duty in terms of the contract, is held guilty. A leading authority on this point is the decision in R v. Pitwood, wherein an employee of the railway company was convicted for manslaughter on the basis of ‘gross and criminal’ negligence. The convict who was responsible for operating the level-crossing gate had failed to keep the gate closed and as a result of the same the victim’s hay cart was hit by the train and he was killed. For determining liability arising ex contractu, the Court placed reliance on the decision in R v. Instan, and thereby convicted the employee for having breached the duty arising out of the contract, even though such contract was not owed to the victim.

Liability of Edward is thus squarely covered by Pitwood, as Edward who was responsible for operating the barrier at the railway crossing, was negligent in performing his duties and had failed to close the gates while the train was approaching, thereby causing the accident which resulted into the death of the tram driver. The resultant harm was a direct cause of Edward’s omission. Hence, misfeance on the part of Edward would incur criminal liability, similarly like in the case of Pitwood, whereby even though the victim was not a party to the contract, yet such a duty was owed to him.

CONCLUSION

Therefore in terms of the authorities so discussed, it seems fair to criminalize the likes of John, Len and Edward for their omissions, resulting into the corresponding forbidden results and which otherwise invite liability under Common law. However despite the said authorities and other principles currently in vogue under Common Law, the real dilemma in such situations would be faced at the time of determining the question of proportionate punishment, for the degree of culpability of all three rests on different scales of causation.

¹⁹R v Pitwood [1902] 19 T.L.R. 37. See also, Michael J Allen & Simon Cooper, Elliott & Wood’s Cases and Materials on Criminal Law (9th edn, Sweet & Maxwell 2006) 35.

²⁰R v Instan [1893] 1 Q.B. 450.

BIBLIOGRAPHY

Cases

R v Dytham [1979] 3 All E.R. 641

R v Miller [1983] 2 A.C. 161

R v Evans [2009] EWCA Crim. 650

R v White [1910] 2 KB 124 D

R v Smith [1979] Crim LR 251

R v Pitwood [1902] 19 T.L.R. 37

R v Instan [1893] 1 Q.B. 450

SECONDARY SOURCES

Books

Allen MJ and Cooper S, Elliott & Wood’s Cases and Materials on Criminal Law (9th edn, Sweet & Maxwell 2006)

Fletcher GP, Rethinking Criminal Law (Little Brown and Co. 1978)

LaFave WR, Criminal Law (4th edn, Thomson West 2003)

Taylor L, Elliot and Quinn’s Criminal law (12th edn, Pearson 2018)

Williams G, Criminal Law: The General Part (2nd edn, Stevens & Sons 1961)

Williams G, Textbook of Criminal Law (2nd edn, Stevens & Sons 1983)

Journals

Glazebrook PR, ‘Criminal Omissions: The Duty Requirement in Offences

Against the Person’ (1960) 76 L.Q.R 386.

Elliott C and Than CD, ‘Prosecuting the Drug Dealer’ (2006) 69 M.L.R. 986.

Herring J and Palser E, ‘The Duty of Care in Gross Negligence Manslaughter’ [2007] Crim. L.R. 24.

Smith JC, ‘Commentary on Khan and Khan’ (1998) Crim. L.R. 830.