Omissions Sample Essay [MAH June 2011]
“In general the criminal law prohibits the doing of harm but does not impose criminal liability
for an omission. However there are justifiable exceptions to this general principle.”
Assess the truth of this statement by references to situations where a failure to act may
result in criminal liability
An omission is a failure to do something and does not generally attract criminal liability.
This is confirmed in the case of Airedale NHS v Bland, where the House of Lords ruled
that the removal of the feeding tube was an omission and thus the doctors were not
criminally liable for Vs death, as they would have been if they gave him an overdose.
Generally speaking the criminal law requires a positive act to be done, and punishes
these to deter others from committing the same offence. However, both the common
law and Parliament have developed a series of situations when they believe that
amending this principle is justified.
The courts have developed a number of duty situations where liability may incur from
D’s failure to act. All of them are based on the concept of a duty of care existing
between D and V. This concept was illustrated in the civil law case of Donoghue v
Stevenson, where C wished to sue the manufacturer of the bottle after finding a
decomposed snail at the bottom, and suffering. According to Lord Atkin the existence of
a duty is based on the neighbour principle. This is a broad, vague term which has
allowed the criminal courts to develop a range of situations where D owes a duty. In
addition, the criminal courts have made it clear that the ‘neighbour’ principle is also
enough in the criminal law to establish liability. In Winters the duty owed by D to the
fire-fighters who died was based on this principle. This may be justifiable as it provides
consistency in the law, however, it is a deliberately vague test, and D may not realise
that he 8is V’s neighbour and thus owe him a duty.
The courts have allowed a duty to develop based on specific relationship, as illustrated
in the case of Gibbons & Proctor, where the defendants starved their daughter to death.
Parents owe a clear duty of care to their children, if only because they are more
vulnerable and this is a justifiable exception. The courts have confirmed the existence of
the exception in the Child and Young Persons Act 1933, which codified the Gibbons duty.
Specific relationship also includes husband /wife, s illustrated in the case of Smith,
where D and V were married, but after a home birth the wife refused to let the husband
bring a doctor. Eventually he did, but it was too late, and there was evidence that if he
had sought help earlier V would have survived. Whilst it seems logical that one spouse
may owe another a duty of care, after all they did willingly enter into marriage, it also
illustrates one of the issues which is the courts reluctance to allow anyone to give up
their duty of care. There is no doubt that D was listening to V, who was expressing her
clear wish, and it feels unfair that he should be punished for it. It would appear that a
duty, once started, cannot be ended easily. In addition, the specific relationship is
defined very narrowly
Voluntary assumption is where D does a number of acts which demonstrate that he has
chosen to take on the care of V, and then fails to continue. This is probably one of the
most controversial, as many ordinary people may not realise that their acts of kindness
could bring with them legal duties. In addition, because the court is so unclear as to
when and how D may end his duty to another, people could potentially be burdened
with duties they thought had finished. This is illustrated in the case of Stone and
Dobinson, where the defendants attempted to care for the victim, who refused their
help, and the defendants couldn’t get help because they didn’t know how to use a
telephone, shows how harsh the duties can be on the defendant. People are liable who
should not be. The defendants did try to help Stone’s sister and did their best
