Criminal law op Ed - Grade: 55 PDF

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School of Law FACULTY OF EDUCATION, SOCIAL SCIENCE & LAW Assessed Coursework Cover Sheet For use with individual assessed work

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LAW 1260 Criminal law

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Question: Should omissions be criminalised to a greater extent than they currently are?

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Omitting is still committing; analysing the inexcusable inconsistencies in our system of law The resolution of the conflict of omissions and implications these legalities may have on society lead to complex historical debate; rooted in the origins of omissions. According to the law, an omission, simplistic in nature, is a synthesis of sets of social obligations placed upon the individual through historical legislative decisions. Principally, common law criminalises omissions in which individuals had the duty to act on the basis of relationship 1. Disaccord arises in the realization that the law is inconsistent in its justification of criminalising omissions, leading to my belief that omissions must be consistently criminalised to a greater extent; almost comparatively to the criminalisation of acts.

Greater criminality from the omission of individuals stems from deviation of the expected outcome. In R v Dytham2, the police officer witnessed V being brutally assaulted yet refrained from abating the situation and drove off, leading to V’s death. Police officers are well aware of their purpose and it is their rightful duty to protect from crime; Dytham failed to fulfill that. Hence his omission is a determinate cause of death deserving of harsher sentencing than merely misconduct. To understand if omissions deserve harsher sentencing we must analyse causal status, as Joel Feinberg 3 discusses ‘causing’ as a determinate mode of generating the given outcome. Using this definition, Dytham actively disregarded his duty thus being a determinate mode of the violence progressing. Hence, Dytham’s negligence of his duty led to V’s death, as his knowledge of the consequences showed actus reus through breach of duty even whilst lacking mens rea; indicating gross negligence manslaughter as the more accurate sentencing over misconduct. 1 GEOFFREY MEAD, 'Contracting Into Crime: A Theory Of Criminal Omissions' (1991) 11 Oxford Journal of Legal Studies 2 R v Dytham [1979] EWCA Crim 722, [2020] Regina v Dytham: CACD 1979 1 (Shaw LJ, Lord Widgery CJ, McNeill J) 3 Joel Feinberg, The Moral Limits Of The Criminal Law (Oxford University Press 1988)

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Similarly, in the case of R v Gibbins and Proctor4, both parents were convicted of the murder of their 7-year-old daughter by starvation. The causal status here is that through a lack of intervention the daughter died, identifying them as a determinate mode of her death. Like Dytham, they actively withheld from their legal duty as they chose to starve her; fully aware of the repercussions, which is why the murder charge is justified. If so, then why convict Gibbins with a harsher sentence when in both cases active breach of legal duty was a determinate cause of death? The active disregard of both defendants’ legal obligations to act should have led to similar convictions. Consequently, this inconsistency solidified my belief in increasing the sentencing severity of omissions, as the law turns a blind eye by failing to fulfill its sole duty of consistent impartiality in maintaining justice. If the moral system the law tries to uphold is inconsistent by favoring cases over others, specifically with the involvement of a public servant, the public’s mistrust of this flawed system will rightfully grow as our justice system’s empirical failures are constantly accentuated. On the contrary, Brian Hogan's5 belief that there is a causal difference between the duty of care of parents and the duty of preserving the safety of individuals, as the former is more critical, claims their convictions cannot be compared and hence why Dytham’s omission should not be criminalised to a harsher degree. I disagree however as personal relationship to a victim must not be a factor in assessing a defendant's failure to act upon their legal duty. In R v Pittwood6, failure to close a gate, led to the death of a train driver. No personal relationships were involved yet Pittwood's breach of legal duty was still a determinate mode of death, causing him to be convicted of gross negligence manslaughter. Dytham and Pittwood are under moral and legal obligations to protect society from harm, yet the law criminalised them differently, showing the inexcusable inconsistencies 4 R v Gibbins and proctor [1891] EWCA Crim 134, [2020] Lucid Law R v Gibbins and Proctor (1981) 13 Cr App Rep 134 1 5 Brian Hogan, Omissions And The Duty Myth (1st edn, Butterworths 1987) 6 R v Pittwood [1902] EWCA Crim 37, [1994] The Law Commission Consultation Paper No I35 1

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of our legal system as their causal status are the same. All three cases directly led to an unlawful outcome due to omissions, yet received different convictions, proving that the law fails to holistically acknowledge the severity of omissions, as it does not criminalise such crimes fairly through standard procedures, but rather favors those in public positions of power such as Dytham.The negligence the law exhibits in its failure to fulfill its duty to criminalise omissions justly, leads to the deduction that they must consistently be criminalised to a greater extent. The English legal system represents an outdated, nineteenth-century adaptation of the laissez faire mentality of classical liberalism; with inherent fault in agreeing with a legal framework that penalises minor harmful acts yet fails to condemn individuals causing death through their omissions. It is imperative that the law on omissions be properly revised, being a clear example of Graham Hughes7 statement: “The law often lags half a century or so behind public morals." Perhaps criminalising omissions to a greater extent does not equate morality being the sole proponent of legislative change, but instead an adjustment to our understanding of the direct impacts omissions may have to others, which is the core essence of the law.

7 Graham Hughes, 'Criminal Omissions' (1958) 67 The Yale Law Journal

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Bibliography: MEAD G, 'Contracting Into Crime: A Theory Of Criminal Omissions' (1991) 11 Oxford Journal of Legal Studies R v Dytham [1979] EWCA Crim 722, [2020] Regina v Dytham: CACD 1979 1 (Shaw LJ, Lord Widgery CJ, McNeill J) Feinberg J, The Moral Limits Of The Criminal Law (Oxford University Press 1988) R v Gibbins and proctor [1891] EWCA Crim 134, [2020] Lucid Law R v Gibbins and Proctor (1981) 13 Cr App Rep 134 1

Hogan B, Omissions And The Duty Myth (1st edn, Butterworths 1987) R v Pittwood [1902] EWCA Crim 37, [1994] The Law Commission Consultation Paper No I35 1 Hughes G, 'Criminal Omissions' (1958) 67 The Yale Law Journal

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