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Inconsistency and Unfariness in Criminal Liability of Duty Failure

3445 words (14 pages) Essay in Law

18/05/20 Law Reference this

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The categories in which criminal liability is imposed for failing to act in accordance with one’s duty have developed incoherently, creating inconsistency and unfairness. Critically discuss this statement with reference to two types of omissions liability.

In England and Wales, the subsisting criminal law does not have a sound footing in terms of ‘consistency’ when assessing mens rea (“MR”).[1] MR is substantiated through the premises of either subjectivism or objectivism. Both distinctions carry their own flaws.[2] With regards to omission liability, the law could be advocated as being uncertain. In the pursuit of finding a legal duty to act, firstly, duty by law is considered, accompanied by the significant notion of ‘responsibility by one person by another’.[3] As per the co-existing scenarios, it can be argued neither the current methods are adequate to put forward the well-celebrated notion of the rule-of-law nor do they comply with the European Convention.[4] Whereas, there is an imminent need of consistency and certainty.

It has been presumed by the House of Lords that MR is an essential part of any criminal offence.[5] In reality, the presumption is not only rebuttable for minor offences but; also for serious crimes.[6] Commentators describe it as the ‘guilty element’, but it is not ‘everything’;[7] as there exist many defences.[8] Lord Mustill advocated that MR is a technical matter with an exclusive requirement of mental element in compliance with the offence.[9] In the case of Williamson,[10] Lord Russell claimant that for every offence there has to be an evident MR. But there does not have to be a corresponding MR for every actus reus as constructive liability might be substantiated such as death caused by dangerous driving. MR work hand in hand with culpability but there are other roles that it plays part in such as establishing the wrong, creating a fair warning system and setting barriers with regards to criminalisation.[11] Altogether, due to the part played, significance of culpability as compared to negligence and recklessness in criminal cases is easier to comprehend.

The current law, with regards to different contexts adopts an ad hoc basis for choosing between subjective and objective approaches, respectively. This leads to further inconsistencies such as witnessed when the House of Lords upheld the former approach regards to MR, even though the Parliament had endorsed the later in the Sexual Offences Act 2003. The former approach leads to a narrow pool of ‘culpable’, whereas the latter is too broad.

Subjectivist would argue that the approach caters those offences where negligence is the main element for MR such as driving offences and where there is inadvertence with regards to culpability, for instance, voluntary intoxication. In turn, the criticism in the case of Caldwell,[12] exposes the real short comings of the objective approach such as the actual motive of the defendant or the intention to be substantiated as an objective test and on a broad spectrum.

Lord Bingham stated:

“No one should be punished under a law unless it is sufficiently clear and certain to enable him to know what conduct is forbidden before he does it; and no one should be punished for any act which was not clearly and ascertainably punishable when the act was done.”[13]

Manslaughter is a serious offence, Smith and Hogan’s Criminal Law has illustrated types of relationships through which duties may arise with regards to the offence.[14] Weight is not only passed by considering moral or social obligations, but the duty has to sufficient to ground manslaughter conviction accompanied with other requirements of the offence. Duty situation includes duty friends and family, voluntarily incurred obligations, contractual obligations and creating dangerous situation.

The duty of parent towards a child is a statutory duty accompanied with common law duty.

But the inconsistency has been evident with regards to the assumption of responsibility in this regard. Principally, it is argued that there should be no legal duty until the parents have assumed responsibility.

Assumption of responsibility is significant in deciding if there exist a duty towards fellow family member instead of the relation itself. In contemporary societies, it could be said that that no one generally assumes responsibility but for instance if a parent is living with an adult child, it can be considered as voluntary assumption of responsibility. In marriage, the assumption is exercised but on the premises of degree of involvement and the vulnerability of the individual.

 Lord Judge CJ articulated in Evans[15] that:

“for the purposes of gross negligence manslaughter, when a person has created or contributed to the creation of a state of affairs which he knows, or ought reasonably to know, has become life-threatening, a consequent duty on him to act by taking reasonable steps to save other’s life will normally arise”

Ashworth substantiates the importance of acts of assistance is significant, but it is unclear as in cases it has been considered to be vital but not determinative.[16] Whereas, it further adds to the inconsistencies. In terms of the offence of manslaughter, it should be clear and predictable, whereas it not the case in all circumstances. The current law leaves too much in the hands of the courts due to the lack of legislation, Law Commission has accepted the fact, that people are put on a major disadvantage due to the unpredictability and incapability to provide justice.[17] This is intertwined, with steering away from the Convention.

Ashworth claims that the assumption of responsibility should be valued on the basis of ‘social responsibility’.[18] It is also put forward that although the courts do employ the ‘social responsibility’ view but they usually follow conventional approach in restricting omissions liability. William argues that Ashworth’s contentions are flawed as he articulates that omission liability should be justified by a clear statutory language as its hard to distinguish between ‘killing and letting one die’.[19] It is argued that the active wrongdoing is highly considered as wrong whereas omitting carried less weight as per the general psychological approach and it would be wrong to be considered liable on the wider spectrum as a result not abiding the law. Smith and Hogan consolidated the previous statement, it was expressed that “involuntary intoxications negativing the mens rea of the offence charged… is a defence. Where it does not negative mens rea, it will not be a defence”.[20]

With regards to homicide cases, it is considered that ‘the need is only to punish the blameworthy’ and it is accompanied by policy reasons.[21] The test in homicide cases is not based on the test of causation but moral reactions. However, the test for causation is outlined in Clause 17 of the Draft Criminal Code[22], but Glanville Williams stated the definition fails “because the definition of causation in clause 17 does not give even the barest indication that a question of moral responsibility or justice is involved.”[23]

When handling pollution cases, the Lordships used phrases such as “positive activities” and “active operation of plant” in order to justify their decision that the defendant caused the act resulting in pollution. It would be right to say that both contribution and omission to act are considered. Buckley J. explained that both the notion to act and deter to act can be effectuated as wrong doing.[24] The difference in approach with regards to homicide and pollution offences can be substantiated on the moral grounds.[25] There is also an element of jury to decide the outcome which has been described by many commentators as an important significant constitutional matter. By delegating the question of causation to the finders of fact, the courts are able to avoid the rigours of strict liability. The device allows both courts and Parliament to bury their heads in the sand, and to avoid any reassessment of the role of strict liability in criminal law.

Strict liability has its apparent advantages such as certainty, efficiency and effectiveness.[26] The principle of strict liability has suffered at the hands of scholars and judges as there is lack of logical structure.[27]  The principles is also justified for its role in terms of deterrence, triviality, expediency, licensing and vulnerability.[28] The line of certainty might be damaged as the issues relating to causation remain unclear and may also blur with regards to defences offered between strict liability and fault-based provisions. The advert of efficiency might also be compromised if the court has to access culpability before sentencing. Serious criminal offences of pollution, requiring proof of recklessness or intent and carrying heavy penalties, do not exist in English law. Should offences of strict liability be separately classified, or simply outlawed? Certainly, more sophisticated administrative and civil remedies could be evolved in order that the criminal law be reserved for blatant cases of environmental vandalism. The principle has suffered with regards to the provisions of fair trial as guaranteed by the European Convention. Strict liability derogates from the rights and in most cases, violates Articles 3, 6, 7 and 14 accompanied with Article 1 of Protocol 1 of the Convention. The position has also been compromised in terms of ‘parliamentary sovereignty’ and the rule of law which follows the later.[29]

Dicey states that “Parliament has the right to make or unmake any law whatever, and that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”[30] With regard to legislations, it could be said that as the Parliament being the prime legislator does not fully does it part, as it leaves room for obrogation such as in the case of Rimmington[31] concerning public nuisance through which it is consolidated that strict liability offences are vague in terms of regulatory offences. The interpretation and application that follows is matter of practicalities.

Due to the statutory ambiguities it could be said that the courts are left with uncertainty and inconsistency. Legal causation “involves an unstable interface between individualistic and political considerations”.[32] Moral blameworthiness and the words of the statutes are the two main tools applied by the courts which are different in principle to each other, the reconciliation between the two remains questionable.

There is also a debate surrounding the principle which articulates that strict liability offences should be replaced by civil sanctions. As the policies already offered for substantiating strict liability are steered by political, economic and historian factors and not by rational scientific analysis.[33]

It would be academically correct to suggest that the duties to act have been bestowed with significant responsibility. The development has been flawed due to the various reasons, but the result is that the rule of law is not always substantiated, and violations of Convention are persistent. Concluding this to the question that whether such an abrogation is viable? It can be said it is really a matter of the context in issue as the panicle is to cater the issues on the basis of a broad spectrum. The need for reform is imminent, the Law Commission has substantiated that the whole new level of law reform is required in order to bring the notion within line of consistency and fairness.[34]

Bibliography

Journals

  1. Ashworth A, ‘Manslaughter By Omission And The Rule Of Law’ [2015] Criminal Law Review <https://uk.practicallaw.thomsonreuters.com/Document/I02B0B940265511E5B545D794ABD872DA/View/FullText.html?transitionType=SearchItem&contextData=(sc.Search)&firstPage=true&bhcp=1> accessed 22 August 2019
  1. Ashworth A, ‘The Scope Of Criminal Liability For Omissions’ [1989] Law Quarterly Review <http://readinglists.nottingham.ac.uk/link?url=http%3A%2F%2Flogin.westlaw.co.uk%2Fmaf%2Fwluk%2Fapp%2Fdocument%3F%26suppsrguid%3Di0ad832f2000001578a749c177fda6a17%26docguid%3DI6FEA4570E71311DA915EF37CAC72F838%26hitguid%3DICF835A40E72111DA9D198AF4F85CA028%26rank%3D13%26spos%3D13%26epos%3D13%26td%3D14%26crumb-action%3Dappend%26context%3D21%26resolvein%3Dtrue&sig=1d0be99e3c237f57cee9b7ca9db66870849965387ca18c6cf9b7be58e668e202> accessed 22 August 2019
  1. Gardner S, ‘Uncontrollable Intention In Criminal Law’ [1994] Law Quarterly Review <https://uk.practicallaw.thomsonreuters.com/Document/ICD040260E72111DA9D198AF4F85CA028/View/FullText.html?originationContext=document&transitionType=SearchItem&contextData=(sc.Search)&navigationPath=Search%2Fv1%2Fresults%2Fnavigation%2Fi0ad73aa70000016cc69fca08b30b4cf0&listSource=Search&listPageSource=d268c88441bdb3f975b2ffc31f72cb9f&list=RESEARCH_COMBINED_WLUK&rank=7&comp=wluk&firstPage=true&bhcp=1> accessed 23 August 2019
  1. Padfield N, ‘Clean Water And Muddy Causation: Is Causation A Question Of Law Or Fact, Or Just A Way Of Allocating Blame?’ [1995] Criminal Law Review <https://uk.practicallaw.thomsonreuters.com/Document/IA87FDD60E72111DA9D198AF4F85CA028/View/FullText.html?transitionType=SearchItem&contextData=(sc.Search)&firstPage=true&bhcp=1> accessed 22 August 2019
  1. Simester W, ‘Four Functions Of Mens Rea’ [2011] Cambridge Law Journal <https://www.lexisnexis.com/uk/legal/results/enhdocview.do?docLinkInd=true&ersKey=23_T28954516737&format=GNBFULL&startDocNo=0&resultsUrlKey=0_T28954516760&backKey=20_T28954516761&csi=374818&docNo=2&scrollToPosition=92> accessed 24 August 2019
  1. Salako S, ‘Strict Criminal Liability: A Violation Of The Convention?’ [2006] Journal of Criminal Law

<https://www.researchgate.net/publication/249900204_Strict_Criminal_Liability_A_Violation_of_the_Convention. accessed 22 August 2019

  1. Williams, ‘Criminal Omissions—The Conventional View’ (1991) 107 LQR 86

http://aspire.surrey.ac.uk/items/A852E8B1-3D55-8948-61CC-6A869AE600BE.html accessed 23 August 2019

Cases:

 

  1. Williamson v Norris [1899] 1 Q.B. 7, 14.
  2. Caldwell [1982] AC 341
  3. Sweet v Parsley (1970) [1970] A.C. 132
  4. National Rivers Authority v Yorkshire Water Services Ltd: HL 21 NOV 1994
  5. Regina v Kingston [1995] 2 A.C. 355 (HL)
  6. Rimmington [2005] UKHL 63; [2006] 1 A.C. 459; [2006] 1 Cr. App. R. 17
  7. R v Evans [2009] 2 Cr App R 10

 

 

Legislation:

  1. Sexual offences Act 2003
  2. Article 3, 6, 7 and 14 of the European Convention
  3. Article 1 of Protocol 1 of the Convention

Books:

  1. Smith and Hogan’s Criminal Law, D. Ormerod and K. Laird, 14th edn (Oxford: Oxford University Press,
  2. The Law and the Constitution W. Jennings, (University of London Press: London, 1948)
  3. The Concept of Law, the Hart  (Clarendon Press: Oxford, 1994)
  4. Environmental and Enforcement, Hawkins (1984, Oxford).

Academic publication:

 

  1. JR. F, ‘A Consistent Approach To Assessing Mens Rea In The Criminal Law Of England And Wales’ (PHd, University of Exeter 2010)

[1] Furey JR., ‘A Consistent Approach To Assessing Mens Rea In The Criminal Law Of England And Wales’ (PHd, University of Exeter 2 nal Liability: a violation of the Convention?

[2] ibid

[3] Winnie ChanA.P. Simester, ‘Four Functions Of Mens Rea’ [2011] Cambridge Law Journal.

[4] Solomon E. Salako, ‘Strict Criminal Liability: A Violation Of The Convention?’ [2006] Journal of Criminal Law.

[5] Sweet v Parsley (1970) [1970] A.C. 132, 148 [Lord Reid].

[6] It can be significantly witnessed with regards to sexual offences (under age); Sexual Offences Act 2003, ss. 5-6

[7] A.P. Simester, “Mistakes in Defence” (1992) 12 O.J.L.S. 293

[8] Such as the notion of insanity, self-defence and duress.

[9] Regina v Kingston [1995] 2 A.C. 355 (HL)

[10] Williamson v Norris [1899] 1 Q.B. 7, 14.

[11] Winnie ChanA.P. Simester, ‘Four Functions Of Mens Rea’ [2011] Cambridge Law Journal.

[12] Caldwell [1982] AC 341

[13]  Rimmington [2005] UKHL 63; [2006] 1 A.C. 459; [2006] 1 Cr. App. R. 17

[14] D. Ormerod and K. Laird, Smith and Hogan’s Criminal Law, 14th edn (Oxford: Oxford University Press,

2015), pp.78–83

[15] R v Evans [2009] 2 Cr App R 10

[16] Andrew Ashworth, ‘Manslaughter By Omission And The Rule Of Law’ [2015] Criminal Law Review

[17] Ibid, pg. 8

[18] Ashworth, ‘The Scope of Liability for Omissions’ (1989) 105 LQR 424

[19] Williams, ‘Criminal Omissions—The Conventional View’ (1991) 107 LQR 86

[20] D. Ormerod and K. Laird, Smith and Hogan’s Criminal Law, 14th edn (Oxford: Oxford University Press,

2015), pp.78–83

[21] Padfield, ‘Clean water and muddy causation: is causation a question of law or fact, or just a way of allocating blame?’ (1995) Crim LR 683

[22] Law Com. No. 177, H.M.S.O., 1989 quoted by Padfield above

[23] Williams, ‘Criminal Omissions—The Conventional View’ (1991) 107 LQR 86

[24] National Rivers Authority v Yorkshire Water Services Ltd: HL 21 NOV 1994

[25] K. Hawkins, Environmental and Enforcement (1984, Oxford).

[26] See Paying for our Past: a Consultation Paper, issued jointly by the Environment Secretary and the Welsh

Secretary in March 1994. [HL Bill 85. 1004/95]

[27] Solomon E. Salako, ‘Strict Criminal Liability: A Violation Of The Convention?’ [2006] Journal of Criminal Law.

[28] Ibid

[29] Simon Gardner, ‘Uncontrollable Intention In Criminal Law’ [1994] Law Quarterly Review

[30] A. V. Dicey, Law of the Constitution, 8th edn, quoted in W. Jennings, The Law and the

Constitution (University of London Press: London, 1948)

[31] Rimmington [2005] UKHL 63; [2006] 1 A.C. 459; [2006] 1 Cr. App. R. 17

[32] Padfield, ‘Clean water and muddy causation: is causation a question of law or fact, or just a way of allocating blame?’ (1995) Crim LR 683

[33] Hart, The Concept of Law (Clarendon Press: Oxford, 1994)

[34] Ashworth, ‘The Scope of Liability for Omissions’ (1989) 105 LQR 424

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