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Criminal omissions
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The Yale Law Journal Company, Inc. Criminal Omissions Author(s): Graham Hughes Source: The Yale Law Journal, Vol. 67, No. 4 (Feb., 1958), pp. Published : The Yale Law Journal Company, Inc. Stable URL: Accessed: 19:20 UTC JSTOR is a service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact Your use of the JSTOR archive indicates your acceptance of the Terms Conditions of Use, available at The Yale Law Journal Company, Inc. is collaborating with JSTOR to digitize, preserve and extend access to The Yale Law Journal This content downloaded from 143.210.133 on Wed, 28 Nov 2018 19:20:37 UTC All use subject to CRIMfNAL OMISSIONS 6RAHAM HUGHESt All regulation must be concerned with the things we ought not to do, the things we may do and the things we ought to do. The law is composed of hypothetical patterns of conduct?conduct from which we must abstain on pain of sanction, conduct which we must pursue to attain certain ends and, more rarely, conduct which we must follow to avoid penalty. In criminal law, the classic picture has been of a body of prohibitions, but the criminal law has never been exclusively prohibitive. And this is not surprising, for even the Decalogue contains incitement to positive action and the western religious concept of sin has always contemplated inactivity as sometimes immoral. But, for the most part, our criminal law in its progress has only occasionally and almost reluctantly admitted the offense of omission within its scope. In recent decades the picture has been changing, and one of the most significant features of the modern development of penal laws has been the widening range of lia? bility for crimes of inactivity. But this contemporary development has received little explicit treatment from modern writers on criminal law The History of Criminal Omissions Roman law knew little of criminal liability for omissions. There w a few delicts in omittendo, chief of which were the failure of a slave to his master from assault, the failure of a soldier to assist his superio when the superior was taken the enemy, the failure of a husband to his wife from becoming a prostitute and the failure of a son to inform h of a trap which his brother was laying for the father There is t Digest the text of Paul, crimen patitur is qui non prohibet hibere non which seems to hint at some kind of liability for om but which is unclear in its import Certainly, these fragmentary instan fVisiting Assistant Professor Yale Law School. The author is for assistance with research on some portions of this Article to Mr. Alvin Deutsch year student at the Yale Law School, and for some helpful suggestions to M Tauber, a second year student at the Yale Law School. 1. For helpful discussions, see Hall, General Principles of Criminal Law c. 9 (1947) Perkins, Negative Acts in Criminal Law, 22 Iowa L. Rev. 659 (1937) Kirchheimer, Criminal Omissions, 55 Harv. L. Rev. 615 (1942) Snyder, Liability for Negative Conduct, 35 Va. L. Rev. 446 (1949). European writers have devoted more attention to the question of criminal omissions. See, in France, Gand, Du Delit de Commission par Omission (1900) Appleton, LAbstention Fautive, 1912 Rev7. Trim. Cohin, Fautive (1929) AlbaretiMontpeyroux, LTnactton en Droit Penal (1944). 2. Gand, op. cit. supra note 1, at op. cit. supra note 1, at 9. 3. Digest 50.17. Mommsen, Romisches Strafrecht 91 (1899), takes the view that the passage indicates the absence of liability in criminal law for omission. The This content downloaded from 143.210.133 on Wed, 28 Nov 2018 19:20:37 UTC All use subject to 592 THE YALE LAW JOURNAL greater interest in the field of li gestion for the first time that homicide may notion significantly absent in Coke. The sugge occurring in the following passage: he who wilfully neglects to preven and ought to provide against, is, as some h law, the actual cause of the damage which e have an ox or a horse, which he knows to b to gore or strike at those who come near th but leave them to their liberty, and they afte to some opinions, the owner may be indicted a killed and this is agreeable to the Mo agreed all, such a person is certainly guilty Hawkins has no further discussions of liabi law However, a frail but interesting group of an interesting anticipation of the objection sometime to rescue?that liability might extend to a throng o which an indictment succeeded for common nuisan neglect to repair was Edge v. Commonwealth, 7 P the early nineteenth century, enjoyed a statute whic neglect to erect or keep in repair a or gu highways therein, they shall forfeit for each provision had germs of profit, since the penalty wa sue. However, the New Hampshire supreme court h (1848), that a separate penalty did not accrue for each dollar payed for a whole neglect. 10. 1 Hawkins 92. His reference to the Mosaical 21:29: if the ox were to push with his horn in t to his owner, and he hath not kept him in, but that ox shall be stoned, and his owner also shall be put to position of a primitive imposition of liability on ani nition of the duty of care, though breach of t Liability for negligent control of animals is a popular 1 Phillips, Comparative Criminal Jurisprudence 12 century Chinese Penal Code: horses, horned c either to kick or bite . . . if the owner does not set the customary manner, or if he does not kili his dog punished with forty blows. If, in consequence of suc the owner of the animal shall be obliged to redeem hi slaughter . . . the payment of the legal In that a verdict of guilty of manslaughter was rightly lected to control his dog which had bitten the deceas death. Cour de cassation (Ch. crim.), Nov. 18, 1927, 11. Stroud, Mens Rea 155 (1914), suggests that at seven offenses of omission: Contempts failur of the Court. (2) Public nuisances nonfeasance. public ferry .... (4) Refusal to serve in a public o (6) Failure a magistrate to suppress a riot. (7) Fa officers in such suppression, in the arrest of offende This content downloaded from 143.210.133 on Wed, 28 Nov 2018 19:20:37 UTC All use subject to CRIMINAL OMISSIONS 593 can be found. The religious offense o was created 1 Eliz. 1, c. 2 (1558). U was recognized as a defense but the bu on the defendant,12 an interesting early locating traditional concepts of the cri Hawkins has another comment on the of the nature of conduct involved in not coming to church, consisting whol any act done, but barely the omission alleged in any certain for, prope Another early criminal omission was no a holder of public office who had not giance, and punishable a fine of fiv the offenses of refusal?refusal to mak to give personal assistance to the king an eign country on a request privy s country was in rupture with England. omission or commission ? This would seem to turn on whether silence and activity in the face of a request for positive action would have been sufficient for liability. The language of the statutes shows clearly that in some cases the duty to act did not depend upon a in others, liability only arose on refusal to accept a declaration when tendered Even in the latter cases silence would presumably have been sufficient to incur thus, they all may be properly described as offenses of omission. Still, the distinction does underline the different circumstances under which a duty to act may be imposed?the varying conditions precedent to triggering the duty under dif? ferent enactments. Another instance of the positive duty to act found in commen? tary is the burden imposed on masters of merchant ships not to abandon 12. 1 Hawkins 373. 3 Jac. 1, c. 4 (1605), the offense was extended to those who maintained in their houses anyone who did not go to church. 13. 1 Hawkins 373. 14. Id. at 369. The offense was created the Test Act, 1672, 25 Car. 2, 15. 1 Hawkins 397. The relevant statutes 30 Car. 2, stat. 2, c. 1 (1678 1, c. 13 (1714) 1 Will. Mary chapters 9, 15, 26 (1688). 16. Refusing assistance to the king apparently did not amount to treaso regarded as a high misdemeanor, punishable fine and imprisonment. Refusa home upon privy seal or proclamation might amount to evidence of adhering t enemies and so to treason. See 1 East, Pleas of the Crown 80 (1806). 17. Under 30 Car. 2, stat. 2, c. 1 (1678), and 1 Geo. 1, c. 13 (1714), an unco duty was imposed to take oaths against the practices of the Church of Rom statutes were directed at those sitting in Parliament or in the service of the under 1 Will. Mary chapters 9, 15, 26 (1688), liability only arose on refu scribe to a declaration tendered justices. These acts were concerned with within ten miles of London, bearing arms and presenting to a church. This content downloaded from 143.210.133 on Wed, 28 Nov 2018 19:20:37 UTC All use subject to CRIMINAL OMISSIONS 595 over the horizon. For it was in the the great chain of regulatory statu gurated a new era in the administ are the Food and Drugs Acts,24 the Acts,26 the Weights and Measures Road Traffic Acts With these st traditional concepts of mens rea an an act, or even upon the vicarious absence of intent, recklessness or as the first powerful expression o where a tobacco dealer was convict though he had bought it in the reg to suspect impurity. Apparently, h procuring a complicated analys an unreasonable demand to impose witnessed a very similar developm Connecticut and Massachusetts between 1850 and 1870 Many of the public welfare offenses are ones of omission. Even where the definition of the offense does not expressly impose a duty to take positive action, such a duty is often imposed decisions like Regina v. Woodrow. Strict liability has appeared harsh and futile in crimes of it must appear even more unattractive in offenses of omission, where the defendant may be quite innocently unaware of circumstances requiring his action. In some instances, courts have nevertheless employed notions of strict liability. In Provincial Motor Cab Co. v. for example, the appellants were charged under the Motor Car Order of 1903, a set of regulations issued the Board of Trade, with failing to provide a vehicle with a rear light ade? quate to illuminate the registration plate. The appellants had appointed an 24. A great many old statutes regulated sale procedures, but there seems to have been no suggestion of strict liability until the statutes. E., Sale of Food and Drugs Act, 1875, 38 39 Vict. c. 63. 25. 35 36 Vict. c. 94 2 Edw. 7, c 28 10 Edw. 7 1 Geo. 5, c 24 (1910) 11 12 Geo. 5, c. 42 (1921). 26. 50 51 Vict. c. 28 16 17 Geo. 5, c. 53 (1926). 27. 52 53 Vict. c. 21 16 17 Geo. 5, c. 63 (1926). 2S. 38 39 Vicr. c 55 (1875) 26 Geo. 5 1 Edw. 8, c 49 (1936). 29. 59 60 Vict. c. 36 (1896) 3 Edw. 7, c. 36 (1903) 20 21 Geo. 5, c. 43 (1SJ30). 30. For general discussions of this development, see Hall, General Principles of Criminal Law c. 10 Williams, Criminal Law c. 7 Sayre, Public Welfare Offenses, 33 Colum. L. Rev. 55 (1933). 31. 15 M. W. 404, 153 Eng. Rep. 907 (Ex. 1846), discussed in the works mentioned in note 30 supra, 32. Id. at 153 Eng. Rep. at 911. 33. iSee, e., Barnes v. State, 19 Conn. 398 (1849) Commonwealth v. Boynton, 84 Mass. (2 Allen) 160 Commonwealth v. Farren, 91 Mass. (9 Allen) 489 (1864). See also Sayre, supra note 30. 34. 2 K. 599. This content downloaded from 143.210.133 on Wed, 28 Nov 2018 19:20:37 UTC All use subject to 596 THE YALE LAW JOURNAL employee to see that the regulations were com had apparently altered the position of his lamp necessary light. The divisional court held that th convicted of aiding and abetting the offense In Quality Dairies (York) Ltd. v. Pedley,SQ the under the Milk and Dairies Regulations, 1949 Drugs Acts. The relevant regulation provided t ensure that every vessel . . . used for containin before use him, be in a state of thorough clea had contracted to supply milk to hospitals but had dairy firm for one hospital. The milk was purc bottled on its premises and delivered a haula of the employees handle the milk or th court held that the defendants could nevertheless be convicted for the unclean state of one of the bottles. American courts have at times been no kinder to the blameless defendant in cases of criminal omissions. In City of Hays v. Schueler, the Kansas court ruled that the duty to carry a red rear light on a motor vehicle was absolute and could not be escaped a showing that, despite all possible precautions, the light had gone out Similarly, State v. Ferry Line Auto Bus Co. held that where the defendant company was liable for operating an auto stage without a license, one of its employees might also be held criminally liable although he had no knowledge that his employers had neglected to obtain the license In addition to the burgeoning of offenses of strict liability, the last century witnessed a broadening of liability for homicide through failure to act. As we saw, Coke did not discuss this possibility at all, and in Hawkins only a hint is given in connection with the control of dangerous beasts. Pleas of the Crown contains an emerging recognition of liability for homicide through negligence. He writes: frequently occur amongst persons following their lawful pations, especially such from whence danger may probably arise. If they saw the danger, and yet persisted without sufficient warning, it will be murder. If the act were such as was likely to breed danger, and they neglected the ordinary cautions, it will be manslaughter at least, on account of such making due allowance for the nature of the occupation, and the probability of the which if very remote, and 35. Williams, Criminal Law 282 (1953), points out that the decision is no longer good law in England, since it is now recognized that knowledge of the commission of an offense the principal is necessary to convict an aider or abettor. See Ferguson v. Weaving, 1 K. Thomas v. Lindop, 1 All E. 966 (K.). 36. 1 K. 275. 37. 107 Kan. 635, 193 Pac. 311 (1920). The court said: regulation falls . . . within the numerous class in which diligence, actual knowledge and bad motives are im? material Ibid. 38. 99 Wash. 64, 168 Pac. 893 (1917). This content downloaded from 143.210.133 on Wed, 28 Nov 2018 19:20:37 UTC All use subject to 598 THE YALE LAW JOURNAL stance must include the accompanying circum and the consequence of the death. T act for the criminal law must synthesize the d with external accompanying circumstances an sequences. And so with omissions. The definition of the specific offense must again single out physical movement in accompanying circumstances and, possibly, with certain consequences. It is not quite accurate to say, as Stroud did, that an omission is not, like an act, a event.,, The legal notion of omission, like that of an act, involves tangible happenings. Of course, in offenses which are purely those of commission, such as rape, the criminal act occurs when the general scheme of conduct projected the statutory language is realized in the particular the physical movements of the defendant in appropriate circumstances. In offenses purely of omission, such as misprision of treason, the criminal occurrence is the failure of the defendant in appropriate cir? cumstances to make concrete the general pattern of conduct prescribed the legal norm. The defendant may be acting constantly, but the legal significance is attributed to the absence of particular action realizing the legal pattern. There is a third possibility: the offense which in its legislative expression seems prohibitive only, but which, a process of judicial interpretation, has come to be regarded as capable of perpetration omission. An example is homicide in a jurisdiction which refers only to the act of killing, as in New York, but where the courts have shown willingness to apply liability to one who causes death through neglect. No term of art in crim? inal law describes the liability for such an offense incurred through a failure to act. The French neatly call it de commission par The nature of certain offenses may make classification difficult. Examples might be drawn from the offenses of practicing certain callings without a license. Does the offense lie in practicing?commission?or in failing to ob? tain a license? The question is clearly absurd for neither practicing nor fail? ing to get a license is in isolation criminal. The offense is practicing without a license and is committed embarking on one course of conduct without first doing something else. It therefore contains elements of commission and omission. What the prosecution must show to obtain a conviction will con? stitute an effective test: here, both facts?practicing and no license?are necessary. The burden of showing a license may be on the defendant, but the essential character of the absence of a license as an ingredient of guilt is not there destroyed. The act receives a criminal color from a prior omission. 47. See AlbaretMMontpeyroux, en Droit Penal 85 (1944). Germans call these offenses The usual example is homicide neglect, but it is not the only one. In Commonwealth v. Cali, 247 Mass. 20, 141 N. 510 (1923), the accused was indicted for burning a building with intent to injure the in? surer. The evidence failed to show whether the accused had started the fire himself or whether he had merely refrained from any attempt to extinguish it after it had started accidentally. The court held that even on the second possibility conviction would be proper. This content downloaded from 143.210.133 on Wed, 28 Nov 2018 19:20:37 UTC All use subject to CRIMINAL OMISSIONS 599 The defendant could have escaped th license or not practicing the callin verbal dispute to argue about the pro of action or omission. It is sufficient to notice that it contains elements of both natures. Possibly, of course, the lawmaker may have a choice of pursuing his chosen policy creating either an offense of commission or one of omission. But only rarely can identical results be achieved. Thus, householders might be required to set out garbage in specified receptacles between the hours of 9:00 P. and 7:00 A., or the setting out of garbage between 7:00 A. and 9:00 P. might be prohibited. But clearly, the alternative formulations lead to different results. The first would seem to be a sanitary measure designed to insure the collection and disposal of garbage, the second rather to show concern for the defacement of streets in the daytime. To prohibit from killing is very different from commanding the preservation of life. Classification of Omissions The criminal law may impose a duty to act under a variety of circum? stances. The duty to embark upon physical activity only arises when the particular surroundings envisaged the notional pattern of conduct occur. Here may be found a useful way of classifying offenses of omission. The following categories are suggested. In rare instances, a duty is geared an event entirely unconnected with the activity of the defendant. In this category are the duty to aid anyone in peril, to be found in some European systems,48 the duty to report treasonable activities and the duty to register for military service. Such duties are imposed on the citizen solely operation of law and because of his general participation in community life. Second, the duty may be imposed virtue of a status relationship between individuals, as the duty of the husband to protect his wife or the parent to care for his child. Here, an element of voluntary assumption of the burden the individual is apparent in his entrance into the relationship or his, possibly intentional, fathering of children. The status need not be domestic: the duty of the master, recognized common law, to care for his servant or the captain of a ship to care for the crew might be included. As a third category, the duty may be imposed as a result of the exercise of a privilege to practice a calling or en? gage in a. business or trade. Fourth, the duty may stern from the decision to participate in some permitted sphere of public activity, such as the duty of those who have incomes to file tax returns or of those who drive automobiles to carry certain equipment. In this field, certain special duties may be imposed the impingement of external events on the citizen in his chosen sphere of activity. The accident in which the motorist is involved, though none of his making, may place him under a duty to report to the 48. See text at note 145 infra. This content downloaded from 143.210.133 on Wed, 28 Nov 2018 19:20:37 UTC All use subject to CRIMINAL OMISSIONS 601 the great difficulty is that the mind all to the enjoined conduct, if he is u not know that it is prohibited to plac 9:00 A. and 7:00 P., but one can walk without knowing that he is doi insanity occur, but here the traditio ground that the accused cannot be sa act This approach is clearly of no does not have to perform any act to who violates a regulation requiring g tacles at certain times ? If he was quit in what sense can he be said to have conduct required of him law? Thi analysis of omissions in terms of the Let us consider the case of the pharm the sale of all poisonous substances lis not register such a sale, there are ma suggested: (1) He knows of the statutory rule and knows that the substance he is selling is a poison within the meaning of the law but decides not to register the sale. (2) He has no knowledge of the existence of the rule and has never kept a poison book. (3) He knows of the rule and does keep a poison book, but he does not know that the substance he is selling has been recently added to the list of poisons within the meaning of the act. (4) He is mistaken about the chemical nature of the substance and thinks it is not a poison within the meaning of the act when in fact it is. (5) He is undecided whether the substance comes within the meaning of the act but neglects to resolve this doubt consulting the act. (6) He is undecided about the chemical nature of the substance but neg? lects to resolve this doubt further research and risks a sale without mak? ing an entry in the poison book. In an offense of commission, a solution might be reached applying concepts of intention, recklessness and perhaps negligence to the conduct 52. See, e., Rex v. 2 All. E. 726 (Crim. App.), where the accused was charged with burglary after being found in a house at night. He protested that he had no recollection of having entered and that he must have been in a condition of After evidence of previous convictions for burglary was admitted, he was convicted. In the Court of Criminal Appeal, evidence of previous convictions was held admissible to rebut a defense of lack of mens rea when the actus reus has been proved, but the defense here was a denial of the act itself and the evidence? was therefore wrongly admitted against him. The conviction was quashed. This content downloaded from 143.210.133 on Wed, 28 Nov 2018 19:20:37 UTC All use subject to 602 THE YALE LAW JOURNAL prohibited. But with omissions, with the ph proach is senseless until an inquiry has been m about the duty to act, for until this knowled can he be said to address his mind to the con Of the possible explanations of the pharmac three and five raise the question of the offen of the legal duty to act. In example two, he ence of the duty. In example three, he know such a duty but is ignorant that it has recent substance with which he is and in exa the extent of the duty and neglects research. In these circumstances, his liability should d his ignorance which, in turn, should depend o tions. What steps are taken governmental of such duties and changes in their scope t What likelihood is there that the nature should have knowledge of the existence of th stances can the defendant show which might pectation of knowledge in a pharmacist? Clea mind in example five should be no defense the applicability of the duty and elected to m This might be called a reckless ignorance, a re available information when a suspicion of dut two, it is difficult to imagine how a defendan macist could allege that complete lack of k opportunities for acquiring this information burden of proof in showing culp discharged. Example three is the really intere lack of knowledge is conceivably not cu authority concerned neglected to inform the regulation. No way may have been available to information, short of legal research. The imposition of strict liability in such a si ing. It can serve no purpose of deterrence, it at all and it contributes nothing to the strict enf maxim, of the law is no o the field of criminal omissions, for the mind of ship to the prescribed conduct if he has no kn lation. The strictest liability that makes any s ignorance. We may say with some plausibility be punished even though he did not know tha thing, if he ought to have known that he sho to find him liable whether he knew of the duty to have known of it or not, is to impose more liability for a complete absence of relevant con This content downloaded from 143.210.133 on Wed, 28 Nov 2018 19:20:37 UTC All use subject to 604 THE YALE LAW JOURNAL admirable work on criminal law, treats this topic way : is some practical difficulty in classif or negligent. In considering whether cond necessary to ascertain whether the party k whether (if he knew of it) he was adverting Suppose, then, that a chemist, not knowing ticular substance is a statutory poison, sells the Poisons Act. Is his omission to comply negligent? The ordinary man would call it rule just stated (as to knowledge of the law tentional. He intentionally sells the drug wi actus reus of the offence.,,55 Dr. Williams continues: would seem that the practical test of intention in omission is as fol? lows. If the defendant had been asked at any time while the omission was continuing: you doing (which the statute makes it his duty to do), would the true answer based on the facts as he knows them be: T am If so, the omission is intentional. In effect this makes intentional omission equivalent to conscious omission. Intention is, however displaced mistake, where the accused thinks that he is doing the required This is a very strange view of intention. If I am eating an orange in a chair at home and someone asks me you climbing Mount I wi reply but it would not seem very sensible to interpret this as mean ing that at the moment I was eating the orange I was intending not to be climbing Mount Everest. When a legal concept strays so ludicrously fa from common understanding, the suspicion that something is wrong is justi fied. Dr. Williams goes on: foregoing test assumes that intention is required to exist at the moment of the legal omission, but there must be some qualification upon this. If the accused, knowing that it will be his duty to act in five time, allows himself to go to sleep, without intending to wake up to perform his duty, the omission is clearly intentional, although there is no mental state at the time when the omission takes place. Yet it cannot be said that every omission during sleep is an intentional omission. The only way of drawing the line is to say that the omission is intentional if the accused, when he fell asleep, realised what his duty was and that he was disabling himself from performing it. To this extent a knowledge of the law is a requisite of mens So, starting with a declaration that knowledge of the law is irrelevant to intention, the learned author is later driven to admit that cases may exist in which it is not sensible to speak of intention without taking into account 55. Williams, Criminal Law 40 (1953). 56. Ibid. 57. Ibid. This content downloaded from 143.210.133 on Wed, 28 Nov 2018 19:20:37 UTC All use subject to CRIMINAL OMISSIONS 605 knowledge of the duty to act. But one tion to the hypothetical case of the analysis, the chemist who s covered the statute is guilty of an who fails asleep, not knowing that he time, is not. This analysis is in Dr. analysis, is intention the duty?he because he h the substance?which causes the duty t no knowledge of the law. Accordingly that knowledge of the activity which g omission intentional. If so, it is no asleep not knowing that it will be his dut of an intentional omission. For, altho act, he may know that an event will o may be the circumstance which cause should his ignorance of the duty be re position is no different from the chem edge of the imminence of the event. Williams should have maintained that on his knowledge of an approaching d his knowledge, when he fell asleep, of unknown to him, imposes a duty to inconsistency failing to take up a ce in crimes of omission But these difficulties are more apparent than real. They are a revelation of the unfortunate tendency which besets men generally and jurists in par? ticular to construct generalizations from individual instances and then to suppress or avoid the fresh instance which defies the generalization. The con? cept of mens rea and its subconcepts, intention and recklessness, were con58. Though the language is rather obscure, Stroud, Mens Rea 5 (1914), while avoiding question of ignorance of law, seems more consistent in analysis: omis? sion may be due to passivity, or to acts inconsistent with the act omitted. Cases of the former kind, which are few and almost negligible, may be called passive omissions. Cases where an omission is due to inconsistent action are frequent in occurrence, and are divisible into two classes, according as the inconsistent acts committed are prior to or coincident with the omission. In the former case the omission is nothing more or less than a consequence of the acts preceding it. This distinction is of importance in the,considera? tion of any question as to whether an omission is intended or not. If the omission be entirely attributable to present inconsistent action, or to mere passivity, intention consists of advertence alone, the omission being intentional if the person adverts to the act omitted and does some other act in lieu thereof, or remains passive. If, however, as would usually be the case, the omission be due to prior inconsistent action, the omission being merely a consequence of what has already been done, intention consists of advertence coupled with exjpectation, as in the case of any other consequence of an act But in most cases, the person would probably not advert to the act omitted, unless he had a knowledge of the duty to act. This content downloaded from 143.210.133 on Wed, 28 Nov 2018 19:20:37 UTC All use subject to CRIMINAL OMISSIONS 607 is accused of making a noise and th tary, like he has success us that it was involuntary, like a s Ryle goes on to submit that the dec fact rests on whether the actor had t whether any external coercion prevente of particular interest for the appro we can reject the mesmerizing impa rea and begin to approach the defen what he alleges way of excuse, m Some Case Law An instructive area of inquiry lies in the duties imposed on motor legislation in most jurisdictions, to report an accident or to render a to the victims. In England, the Road Traffic Act of 1930 requires th an accident occurs owing to the presence of a motor vehicle on where damage or injury is caused, the driver must stop and give h etc. to any person who has reasonable grounds for inquiring or rep accident to the police within hours In Harding v. Pr divisional court was faced with an appeal from a conviction in the court under this provision The defense was tha no knowledge that an accident had occurred, since the impact was one and the noise in the cab of his truck was so great that he neve 62. Id. at 69. 63. Id. at See also Hart, supra note 59, at 180: can be seen from Aristotl discussion in Book of the Nicomachean Ethics, the word in fact serves t exclude a heterogeneous range of cases such as physical compulsion, coercion threat accidents, mistakes etc, and not to designate a mental element or nor does signify the absence of this mental element or state . . . Courts have ofte perceived the sense of this approach. See1 State v. Noakes, 70 Vt. 247, 262, 40 Atl. 249, 2 (1897), where the court said, there is not capacity, means and ability to perform t legal duty, the omission to perform is not See also the treatment of intentio in Anscombe, Intention (1957) Pasmore Heath, Intentions, Proceedings of the Aristotelian Society (supp. vol. 29) 131 (1955), and the judgment of Barry, J., in R v. Charlson, 1 All E. 859 (Q.). An overly rigid approach to these concepts perhaps revealed Perkins, A Rationale of Mens Rea, 52 Harv. L. Rev. 905, 912 (1939) a watchman charged with the duty of lowering the gates at a crossing whenever a train is approaching fails to do so on a particular occasion, with fatal consequences to a motorist the death is due to his (negative) act. But it would be absurd to speak of the act if he was inattentive and did not see the train approaching. As his legal du required him to be attentive in this regard his want of knowledge of the need for im mediate action will not excuse him, but it leaves his failure wholly A unnecessary equation of with appears here. The real point that in example the criminal law seems to attach liability to simple negligenc whether the description is applied to negligent conduct is not very importa 64. 20 21 Geo. 5, c 43, ?22 (1930). 65. 1 K. 695. This content downloaded from 143.210.133 on Wed, 28 Nov 2018 19:20:37 UTC All use subject to 608 THE YALE LAW JOURNAL or felt it. The prosecution relied heavily on which had appeared in the corre Motor Car Act of 1903, was omitted in the R deletion indicated a legislative purpose to crea The divisional court refused to accept the p viction was quashed on the ground that whil be construed as ones of strict liability, this in readily in offenses of omission, even in the indicating need for proof of knowledge. The apart from authority, one seeks to find matter it may be thus stated: if a statute cont against the doing of some act, as a general stituent of the but there is all the ing an act and imposing a duty to do somet certain event. Unless a man knows that the he carry out the duty imposed ? If the dut port something of which he has no knowle The court relied upon the earlier case of Nich was acquitted of failing to report a contagio when he did not know that the animal was in about the change in statutory language was m most the omission of only affe though formerly the prosecution might hav burden was now on the accused to show an a This decision must be wholly welcome, fo would be a profitless legal operation. Unfortun not so courageous when faced a few years late on the theme, in Quelch v. Here who had created the principle in Harding v slightly different circumstances. One of the p driver had attempted to get off the bus when for a red light. The attempt was rash, and t conductor informed the driver of the acciden conductor escorted the injured passenger hom plied with the information required the R did not report the accident to the police, thou two days later. The court acquit that the use of the word however, the divisional court took the a kind embraced the statutory language motor vehicle on the and the appeal o 66. Id. at 701. 67. L. 8 C. 322 (1873). 68. 2 Q. 107. This content downloaded from 143.210.133 on Wed, 28 Nov 2018 19:20:37 UTC All use subject to
Criminal omissions
Module: Criminal Law (LW2220)
University: University of Leicester
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