To understand the concept of omission, it is important to first conceptualize the meaning of the crime. A crime can be defined as the commission of acts prohibited by criminal laws and criminals as persons committing such acts. If a crime is committed, it will be punished in accordance with the law. The prosecution must prove the existence and coincidence of actus reus or culpable act and mens rea or guilty mentality in order to obtain a conviction. An obligation is imposed on the person on the basis of the contractual obligation towards the victim or a third party. For example, the doctor and nurse have a duty to take care of their patients. If there is non-performance of a contractual obligation, this would form the basis of an injunction. If the contract is public, the obligation is due to members of the general public, who are not even contracting parties. In criminal law, at common law, there was no general duty of care towards fellow citizens. The traditional view was summed up in the example of seeing a person drown in shallow water and not make rescue efforts, where commentators borrowed the phrase: „Thou shalt not kill, but thou shalt not need to formally seek to keep someone alive.“ (Arthur Hugh Clough (1819-1861)) to support the thesis that inaction does not entail criminal liability. Nevertheless, such omissions may be morally indefensible, so that both Parliament and the courts have imposed liability if the inaction is sufficiently culpable to justify criminalization. Some statutes therefore explicitly state that the actus reus consists of a relevant „act or omission“, or use a term that may encompass both.
Therefore, the word „cause“ can be both positive in that the defendant proactively injured the victim and negatively, since the defendant intentionally failed to act, even though he knew that this omission would cause the harm in question. In court, there is a tendency to use objective criteria to determine whether, in circumstances where there would have been no danger to the health or well-being of the accused, the accused should have taken steps to prevent a particular victim or potential victim from suffering foreseeable harm. [1] Germany has an interesting approach to the „duty to act“. The official English translation of article 13 of the Criminal Code does not provide for an obligation to act, but a sanction for „anyone who fails to prevent a result forming part of a penal provision (…) if he is legally responsible for ensuring that the result does not occur and if the omission amounts to the commission of the offence by a positive act“. This provision is much more limited in scope than a more general „duty to act“, but nevertheless achieves the desired result. It essentially imposes an obligation to act only on parties who have a certain degree of responsibility to potential criminals. [15] More importantly, this obligation is violated only if the crime is actually committed and failure to prevent the crime is morally reprehensible enough to equate the actual commission of the crime itself. [16] Opponents of these laws in other jurisdictions argue that the many nuances associated with the decision to conduct a rescue would make it difficult to continue a failed rescue. The potential rescuer may only have a split second to assess their ability to perform a rescue and the danger they may face in the process.
[17] In any serious attempt to deal with rescuers under the law, courts should make a subjective test of the difficulty of rescue from the rescuer`s perspective at that time. [18] It is argued that the German legislation is effective in this case, but no more so than the current state of the common law. There are omissions that are paid, and others that are not. In serious cases, sanctions may even lead to imprisonment, for example for manslaughter by omission. In other cases, omissions may be overlooked if it is clear that the person did not intend to harm by his or her inaction and was truly unaware of the situation. Due diligence also plays an important role in omissions and is another part of the law that can lead to a conviction for abuse. If a person owes a duty of care to another person (e.g., a guardian of a child) and commits an act of omission that causes harm to the child, they may become guilty and, therefore, be charged with diligence and care because of that failure to do so. Due diligence is often legally binding and abuses can lead to prosecution. Ms. B. was a competent patient but paralyzed on a ventilator, and she was granted the right to turn off the ventilator. Although the discontinuation had to be carried out by a doctor and it is an act that intentionally causes death, this is classified by law as an omission because it is simply a discontinuation of ongoing treatment.The physicians` behaviour is considered legal „passive euthanasia.“ If the physician who is asked to refrain from further treatment has conscientious objections, a physician should be asked to refrain from doing so. But in more general cases of necessity, urgent life-saving surgery cannot be unlawful until a court decision has been rendered. If the patient is a minor, emergency life-preserving treatment is not illegal (note the power to refer consent issues to courts within their jurisdiction over care). There are a number of omissions that are prosecuted in their own right, such as failure to report a car accident; But omissions can appear in any situation where a person is affected by your actions, or rather by your disability. Only if there is no physical, contractual or other link between the witness and the victim does the omission not justify an actus reus. But while this may be true for the general crime public, „implied manslaughter“ is different. R v Lowe (1973) QB 702, the defendant committed the offence of neglect of his child under the Children and Young Persons Act 1933 section 1, which caused the death of the child. It was decided that there should be a difference between commission and omission. Mere unanticipated neglect of the possibility of damage is not a ground for implied manslaughter, even if the omission is intentional. R. v.
Khan and Khan (1998) CLR 830 confirmed that there is no separate category of manslaughter by omission unless the failure constitutes a breach of duty to act. The accused provided a 15-year-old prostitute twice with the amount of heroin that could be ingested by a normal user. The defendants left her unconscious in the apartment and returned the next day to find that she had died of the overdose. If medical help had been called, the girl probably wouldn`t have died. The illegal act was to supply the drug, but the death was caused by the amount injected by the victim. The judge asked the jury to consider responsibility on the basis that the defendants did not call for medical help. On appeal, the conviction was overturned because the brothers had not accepted their duty to act before she took heroin. [5] In R. v.
Mavji (1987), it was held that the crime of fraud does not require affirmative action on the part of the defendant and that any act resulting in the theft of the proceeds by the government is sufficient to engage liability for the omission. In this case, a man and the woman lived with the man`s daughter. They did not provide the child with sufficient means of subsistence, i.e. he did not receive food and died. The judge summoned her and convicted her of murder for dereliction of duty, resulting in serious bodily harm to the child and she died. The case was used as an example of an injunction. Omission or not?: This is a typical definition of omission, inaction. However, this would not constitute a legal omission (no matter how irritated the woman is)! In the Attorney General`s Reference (No.
3 of 2003) (2004), officers from EWCA Crim 868[2] arrested a man with a head injury for disturbing the peace for his abusive and aggressive behaviour towards hospital staff attempting to treat him. Later, he stopped breathing at the police station and all attempts at resuscitation failed. Five police officers who were caring for A at the time of his death were charged with manslaughter by gross negligence and misconduct in the performance of their public duties.
