‘The Criminal Law Is Right to Treat Acts Differently to Omissions’
The act-omission distinction in criminal law holds significant grey area, and it thus subject to scrutiny from those who study the practice (McCutcheon, 1995). An important aspect of this grey area can be summarised in the following quote:
"Thou shalt not kill but needst not strive, officiously, to keep another alive." (Clough and Norrington, 1968)
Which proposes the question: is one justified criminalising an omission, rather than an act (Ashworth and Steiner, 1990)? Not doing so may prove to be morally indefensible in many cases however, which is why some statutes state that the actus reus should consist of any relevant ‘cause’, whether that be an act or omission (Ashworth and Horder, 2013). Further debate arises from this again, as it is evident that there may not actually be any true difference between acts and omissions which would necessitate unequal treating of them, and that the only existing differences stem from the linguistic sets each cause invites as opposed to their severity. Not only this, but it must also be acknowledged that the idiosyncrasies of English language should not substitute as grounds on which criminal liability should be rejected (Ashworth and Horder, 2013). It is therefore valid to argue that, whilst by nature acts and omissions are not the same, this does not warrant the different treatment of them as they can both substitute as efficient causes and should therefore be viewed on a case by case bases.
When evaluating the relationship between acts and omissions, the aim of orthodox criminal law can be considered (Husak, 2008):
“The justification for criminal law and punishment should therefore be sought in two dimensions – as a deserved response to culpable wrongdoing, and as a necessary institution to deter such wrongdoing.” (Ashworth and Horder, 2013)
Such sentiments suggest that criminal law seeks to convict those deserving of punishment when liable for crimes as well as deterring those in society from committing acts of lawlessness, inferring societal values and morality are integral to the practice. Therefore, it can be argued that treating acts differently to omissions is counterproductive as immorality can be present in crimes created through acts, and crimes created through failure to act. To adhere to the aims of orthodox criminal law, the severity of omissions in relation to acts must thus be treated equally.
An example of why it is important to treat acts and omissions the same so that morality is enforced can be evaluated in terms of R v Evans  (R v Evans 2 Cr App R 10, ) and R v Moloney  (R v Moloney, ). In the case of R v Evans , the verdict of manslaughter was reached through the appellant and her mother’s failure to seek medical assistance on the realisation that Carly, her 17-year-old sister, was suffering from symptoms indicative of an overdose. The immorality of this failure to act was highlighted in Lord Chief Justice’s statement:
“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 the other's life will normally arise."
Respectively, the aim of criminal law was upheld as the defendant’s failure to fulfil a duty they had given rise to was met with punishment, thus condemning immorality.
Comparatively, the verdict of manslaughter was reached in R v Moloney  through the defendants drunken shooting of his stepfather; a case where the actus reus proves perhaps more straightforward. Nonetheless, through this conviction the overarching aim of criminal law was again met as “a deserved response to culpable wrongdoing” (Ashworth and Horder, 2013) was granted.
These cases are thus testament to why acts and omissions should be treated the same as they illustrate how crimes deserving of the same punishment can be created through both failure to act and act and, if the law is to abide by its aim of upholding morality through condemnation, the grounds in which punishment can be handed out must be viewed equally. Furthermore, though omissions can be perceived controversial in respect to the rule of law (Heart, 2008) whereby citizens must feel guided by law and aware of what is expected of them (not blindsided), such controversy should not act as an excuse for avoiding issues of morality (Ashworth and Horder, 2013). Not only this, but controversy should also refrain from hindering omissions to constitute as a crime’s actus reus in a society where the dominant aim of criminal law is to condemn unlawful behaviour.
Furthermore, when reviewing criminal law the grounds on which omission occurs can be categorised into relational, situational, contractual and action cases where, as present in acts, a conduct element is required (Jones, 2006). It is consequently perhaps inaccurate to view omissions as less severe than acts as for an omission to be illegal certain factors must play out, which ensures the criminalization of omissions is justified through ensuring those convicted are liable for their crime.
This can be seen in the relational case R v Hood  (R v Hood, ), where the defendant failed to seek medical assistance for 3 weeks after his wife fell and broke bones. In this case, the conduct element proves to be the defendant’s failure to seek medical assistance and, because of the husband-wife relationship of the defendant and victim, a duty of care was thus designated to the husband whereby their supposed interdependence determined his liability (Kleinig, 1986).
Duty can also be examined in Santa-Bermudez v DPP  (Santa-Bermudez v DPP, ), where the defendant was charged with assault occasioning actual bodily harm as a result of falsely telling a police officer carrying out a drug test he was not in possession of needles, leading to the police officer being pricked by a needle. In this case the assault stands in the form of omission as duty arose through not only the defendants initial lie, but from their failure to interject with the truth throughout the duration of the drugs test.
When reviewing these cases, it is clear for an omission to constitute as the actus reus of a crime it must adhere to certain guidelines; guidelines which ensure people are not held liable on the grounds of merely being a ‘bad person who failed to act’ (Smith, 1984), but instead guidelines which ensure people are held accountable for a duty that has arisen based on one of the categorized elements above. Acts will be considered in accordance with circumstance and consequence as well, both of which adhere to guidelines to ensure a defendant is liable and culpable before being charged. In turn, the criminal law is not right to treat acts differently to omissions as, whilst acts are naturally justifiable to criminalise, the specific conditions required in an omission case to evaluate a defendant’s liability ensure that the omission substitutes as sufficient conduct and is thus justified in criminalising.
Likewise, it can also be argued that the criminal law should not treat acts and omissions differently as, when constituted as the conduct element of a crime, both can be of equal severity and hold significant implications for others (Kleinig, 1986). Each case should therefore be held to its own merit, and should not be analysed on the bases of merely whether the defendant did something or failed to do something.
The consequences of treating acts and omissions differently can further be evaluated in relation to wider society when comparing a case such as R v Khan & Khan  (R v Khan & Khan, ) and R v Smith . In this example, if acts were to be treated with greater severity than omissions it can be debated whether it is fair that the defendant from R v Smith  (R v Smith, ), a medic who accidentally dropped a wounded solider, could be viewed as more criminal than the defendants in R v Khan & Khan , drug dealers who failed to seek medical assistance prior to the preventable death of a 15-year-old girl. On the contrary, if omissions were to be treated with greater severity than acts similar issues would arise in criminalising the defendant in Barnfather v London Borough of Islington Education Authority  (Barnfather v London Borough of Islington Education Authority, ), a mother who failed to send her child to school, more so than the defendant in R v Blaue  (R v Blaue, ), who stabbed an 18-year-old girl 4 times for refusing to perform a sexual act on him.
To say acts should be treated differently to omissions therefore fails to consider the multitude of other factors relating to a crime and is simply too much of a generalisation when reviewing the possible severities an act, or omission could evoke. Not only this, but by viewing either an act or omission in higher regard to one another it is perhaps not always guaranteed that the defendant most dangerous to society receives the appropriate punishment, as illustrated in the comparison of the above cases, causing criminal law to fail at its aims of deterrence and the fair punishment of wrongdoing. It is thus crucial that criminal law analyses cases based not on whether they consist of an act or omission, but instead on the terms of individual merit and what outcome is most just.
To conclude, though it is evident acts and omissions differ in nature, they can both constitute as the actus reus element of a crime and should accordingly be treated in a similar light (Ashworth and Horder, 2013). Due to the fundamental aims of criminal law, it can be argued that comparing the two conduct elements will have little benefit as the overarching aim of the law is to condemn wrongdoing and if a conduct element is present in a crime, why is it relevant whether such conduct was initiated through an act or failure to act (Kleinig, 1986)? Each can substitute as wrongdoing. Not only this, but both acts and omissions are criminalised on specific terms; terms which ensure liability is justified. If is therefore wrong to view one superior to the other as both can only be criminalised under certain, differing standards. Likewise, crimes falling under both categories can be petty or of high severity. Therefore, the thesis “the criminal law is right to treat acts differently to omissions” would perhaps hold greater value if it were to denote the criminal law is right to treat every case differently, but not on the bases of whether the conduct element was an act or omission.
© 2018 Lauren Eales