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What should the Code do about omissions?

Published online by Cambridge University Press:  02 January 2018

Glanville Williams
Glanville Williams*
Affiliation:
Jesus College, Cambridge
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Extract

I yield to none in my admiration of the draft Criminal Code produced by the Law Commission's academic team, but everyone who studies it will have what he regards as improvements to suggest. So here is my item, relating to the team's proposals for omissions. I think the draft provides too great scope for offences of omission, particularly for serious offences of omission.

This article is concerned with pure omissions. I call them ‘pure’ since omissions combined with action are counted as acts - largely because they are not subject to the peculiar difficulties of penalising omissions.

Type
Research Article
Information
Legal Studies , Volume 7 , Issue 1 , March 1987 , pp. 92 - 118
Copyright
Copyright © Society of Legal Scholars 1987

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References

1. Law Com No 143.

2. Fourteenth Report (Cmnd 7844), para 254.

3. [1977] QB 354.

4. Lambert v California (1957) 355 US 255.

5. Consider for example the efforts made to give effect to the principle in the German code; see Binavince in 24 AJCL 598. But it must be said that although Continental and American lawyers have discussed the Nulla poena principle far more than English lawyers, they themselves have failed to apply it fully in their codes. For an excellent review of the German debate see George P Fletcher in 24 AJCL 703.

6. Under cl 2, post-code offences are technically code offences, which I think is an excessive economy of words. Post-code offences not enacted as amendments to the code should be specified in the code as such.

7. Williams, Criminal Law: The General Part, 2nd edn 5.

8. The cases are critically discussed in Williams, Textbook of Criminal Law, 2nd edn, 202–205.

9. Gully v Smith (1883) 12 QBD 121. No duty of removal exists before notice to this effect is received from the highway authority: Hudson v Bray [1917] 1 KB 520. When a vessel accidentally sank in a navigable river, and the owner did nothing to clear it away, it was held that he could not be indicted for nuisance: Watts (1798) 2 Esp 675, 170 ER 493. The reason may be that accidental sinking is an incident of navigation.

10. Speck [1977] 2 All ER 859, 65 Cr App R 161.

11. Yuthiwattana 80 Cr App R 55, [1984] Crim LR 563. The jury convicted on the direction of the trial judge (approved on appeal) that they could convict if they found that the defendant's failure was ‘an act calculated to interfere in the peace and comfort of the occupier’ and was done with the intention of causing the occupier to give up occupation. But it is unacceptable to say that an omission is an act; and the defendant's bad intention could not turn an omission into an act. Diane Burch, in her note to the report above cited, suggested that the refusal to provide a key might have been regarded as civilly wrongful as a derogation from grant; but the decision was not based on this, and I do not think that a failure to perform a civil duty should be brought within a penal statute that in its most natural signification refers to acts.

12. Dytham [1979] QB 722.

13. Mavji (1986) Times, 1 July.

14. Ahmad [1986] Crim LR 739. See below at n 59.

15. Red House Farms (Thorndon) Ltd v Mid Suffolk DC (1980) Times, 30 April.

16. Below, text at n 50. But a person who involuntarily causes a source of danger can be criminally liable if, coming to know of it, he fails to neutralise it: see the later discussion of supervening fault. (The decisions on ‘killing’ by omission for the purpose of manslaughter assume that one can cause by omission, but it would be unsafe to generalise from them; see later.).

17. Brown (1970) 1 QB 105. Contrast Watts (1798) 2 Esp 675, 170 ER 493, and the decision of a civil court in Cluttenham v Anglian Water Authority (1986) Times, 1 July, holding that it is not a nuisance by obstruction of a right of way where the way becomes blocked or dangerous by reason of an accident or natural forces.

18. Darch v Weight [1984] 1 WLR 659, 2 All ER 245, 79 Cr App R 40.

19. It would preserve the traditional language, and would also be convenient, if the cumbrous term ‘indictable offences’ were replaced by the monosyllable ‘crimes’, the generic name for (indictable) crimes and summary offences becoming ‘offences’.

20. Do these words need to be defined? Adopted child? Step-child?.

21. Shepherd (1862) 9 Cox 123, Le & Ca 147 (CCCR).

22. 24. Chattaway (1922) 17 Cr App R 7.

23. Spouses are criminally liable for failing to maintain each other only if public accommodation has to be found for them: National Assistance Act 1948, ss 42, 51(1).

24. That the common law imposes no general duty to act in situations of emergency was accepted by the lords in Miller [1983] 2 AC 161. A number of Continental countries have offences of inaction in such circumstances, including France, Italy, Belgium, Greece and Poland; also Argentina and Vermont. See Frankel in 11 Wayne L Rev 371; Law Reform Commn of Canada, Omissions, Negligence and Endangering (Working Paper 46) 18. My own proposal, to the CLRC, was for an offence worded (in its final form) as Follows. ‘It is an offence for a person to fail to take reasonable steps (not involving personal danger or appreciable pecuniary loss) to aid another person there present who to his knowledge is suddenly endangered in life or health for reasons beyond his control.’ This wording would penalise the rotter who allows a blind man to fall into an unprotected hole in the road, but not one who fails to go to the assistance of people who are being mugged in the Underground. The Law Reform Commission of Canada recommended the enactment of a similar offence, and added that the Good Samaritan should be exempted from liability for negligence (op Cit 19–20).

25. Above, n 22.

26. Above, n 3.

27. Instan [1893] 1 QB 450.

28. Wilkinson (1978) Times, 19 April; see Williams, Textbook of Criminal Law, 2nd edn, 268.

29. Working Paper No 46, Omissions, Negligence and Endangering, p 14.

30. Three decisions bear on the construction of the word in insurance policies. It was held in English v Western [1940] 2 KB 156, construing a policy taken out by a boy of 17, living with and dependent on his father, that his sister who was living with the others was not a member of the insured's household, since the boy was not head of the household. The Supreme Court of Canada held in Wawanesa MFI Co v Bell (1957) 8 DLR (2d) 577 that a lodger who maintained a separate identify of life was not a person of the insured's household, though he was a relative of the insured (a brother), and though he participated occasionally in the family activities. The court acknowledged that the lodger might be ‘in’ the household, but held he was not ‘of’ it! It was assumed in Calverley v Gore MFI Co (1959) 18 DLR 2d 598 (Ont CA) that a servant of an unsured person could be a person in his household (though on the actual facts the servant had left, intending not to return, and therefore was not in the household).

31. Above, n 24.

32. Bubb (1841) 4 Cox 455 (aunt of a child going to live with the child's father on the death or his wife); Nicholls (1874) 13 Cox 75 (grandmother taking charge of a child on her daughter's death).

33. Williams, Textbook of Criminal Law, 2nd edn, 264–265.

34. Curtis 15 Cox 746 (Hawkins J); Dytham [1979] QB 722.

35. (1851) 5 Cox 172, 17 QB 34, 117 ER 1194. See Buxton in 82 LQR 181.

36. 11 Cox 210. See Buxton, op cit 183, n 47.

37. The duty is to ‘a human creature helpless either from infancy, simplicity or infirmity’ Nicholls (1874) 13 Cox 75. Cp Squire and Painter in 128 NLJ 995.

38. More specifically, a person who has reached the ‘age of discretion’ - which, incidentally, the code should define.

39. Williams, Textbook of Criminal Law, 2nd edn, 267–268, 612–613.

40. The Times, 11 November 1968 (Sinden).

41. The reader who puzzles over cl 21(2) receives no help from a guiding marginal note, an Illustration, or any really illuminating commentary, Illustration 21 (iv) puts the case of a driver who frightens his female passenger into jumping out of the moving car, and sustaining injury. It is stated that the driver may be guilty of intentionally or recklessly causing injury. Presumably the team thought that cl 21(2) would not protect him because the passenger, though an agent of her own injury, was an innocent agent (cl 21(2)(a)).

42. Cp the proposal of the Law Reform Commission of Canada, Working Paper 46 (1985), Recommendation 4 (2).

43. Morby (1882) 8 QBD 471.

44. Cp Cyrenne (1981) 62 CCC (2d) 239.

45. Graham Hughes in 67 Yale LJ 627–631.

46. The clause does not say that killing means causing death, and it purports to be Concerned with jurisdiction, not with the meaning of ‘killing’.

47. If it is decided to make homicide cover selected omissions, then cl 56 should be altered to read: A person who causes the death of another (a) intending to cause it; or …. Then there should be a subclause saying in effect that for the purposes of the sections a death is caused by an omission to act only in certain cases, viz…

48. Factories Act 1961, ss 12–16; Health and Safety at Work Act 1974, s 33.

49. 14th Report, para 253. The committee gave no reasons, and paid no attention to the context of the words in the section. My dissent on the ‘flexibility’ issue is noticed in the footnote on p 255, but I also disagreed on the committee's interpretation of s 18.

50. [1975] 1 WLR 988, 2 All ER 113.

51. But he would ‘cause’ it if the flow orginated from his own works and he unreasonably failed to stop it.

52. [1982] Crim LR 527, 774.

53. It was the intention of the Government that crimes of omission should be attemptable (see Dennis in [1982] Crim LR 7–8), but this was not written into the Act.

54. McCarthy [1981] STC 298.

55. [1983] 2 AC 161.

56. A prosecution for manslaughter failed on these facts in 1966, the judge ruling that there was no precedent for convicting the driver in these circumstances (Drive magazine (1975), p 37). But this was before the decision in Miller.

57. See (1982) Crim LR 773, [1986] ibid 741.

58. See above at n 2.

59. [1986] Crim LR 739.

60. [1986] Crim LR 742.

61. Or even of murder, if the driver knew that the injured person was almost certain to die (even though he did not positively wish it). This would be the result or the combined principles of the draft code, whereas common sense would, I think, regard a conviction of manslaughter as sufficient. I do not think that cl 27 can be satisfactorily adjusted to exclude the case, and in practice a conviction of murder would be very unlikely – though making the charge one of murder would put heavy pressure on the defendant to plead to manslaughter.

62. Fagun v MPC [1969] 1 QB 439.

69. The Road Traffic Act 1972, s 25(1) (as amended) makes it an offence for a driver not to stop and give particulars after an accident; but it is only a summary offence, and the driver is not required to give assistance to any injured person.

64. [1982] Crim LR 774.

65. Ibid.

66. 4 LS 88.

67. On this and the whole question see Williams, Textbook of Criminal Law, 2nd edn, 347–349.