Study On Criminal Law-Legal Provisions Of Omissions & Legal Principles
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Added on 2020-02-05
Study On Criminal Law-Legal Provisions Of Omissions & Legal Principles
Added on 2020-02-05
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Criminal law
TABLE OF CONTENTSIntroduction......................................................................................................................................3Question 1........................................................................................................................................3Principle of autonomy..................................................................................................................4Principle of legality......................................................................................................................5Principle of harm.........................................................................................................................5Question 2........................................................................................................................................6Issue.............................................................................................................................................6Legal facts....................................................................................................................................6Applicability of legal provisions..................................................................................................7Conclusion...................................................................................................................................8Conclusion.......................................................................................................................................8References........................................................................................................................................92
INTRODUCTIONEnglish criminal law can be termed as legislative body in the jurisdiction of England andWales which deals with the criminal acts and their consequence. In order to establish obligationunder criminal law two crucial factors are required to be satisfied i.e. mens rea and actus rea.However, there are certain exceptions (such as omissions and strict liability) to these provisionsin which individual is charged obliged for criminal conduct. Present study is focused on thedescription of legal provisions of omissions in criminal law by considering various legalprinciples. Described provisions will be applied in the given case scenario in order to determinethe legal outcome. QUESTION 1‘Imposing criminal liability for omissions is inconsistent with other interests that criminallaw should protect such as the principle of autonomy, the principle of legality and theharm principle.’In accordance with the provisions of the criminal law, presentation of actus rea (guiltyaction) and mens rea (guilty reaction) is compulsory in order to prove a criminal conduct ofdefendant. However, in several situations there are exceptions i.e. strict liability in whichcriminal action does not require evidence of mens rea. Further, provisions of actus rea states thatthere must be voluntary act and criminal conduct should be consequence of the same. However,in these provisions there are also certain exceptions to the requirement of voluntary actionswhich is termed as omissions1. Legal provisions of English criminal law states that to establishthe fact that crime is committed by omission individual is required to show three elements i.e.duty of care, breach of duty and proximate relationship between action and injury occurred. Legislatory provisions in the English law is not consistent for the establishment ofcriminal liability for the criminal action. In this aspect, few criminologists recommend that allomissions should be punished while others are in against of this factor2. Criminal law in UK1Robert Morris, The teaching of law to non‐lawyers: An exploration of some curriculumdesign challenges [2010] 2(3) International Journal of law in the built environment Pl. 232 – 245.2Petter Gottschalk and Robert Smith, Criminal entrepreneurship, white‐collar criminality,and neutralization theory [2011] 5(4) Journal of Enterprising Communities: People and Places in3
does not impose any obligation for such actions and it is reluctant for the extension of list ofduties for fear of adverse impact on autonomy of an individual. In present era, all the criminal actions cannot be result of the omission. Due to this aspect,defence of omission cannot be uniformly by the legislation. In general, omissions of theindividuals are not criminalized in English criminal. However, this provision is subjected to thelegal aspects of contractual duty, special duty and the foreseeability of hazardous situations.Approach of inconsistency in imposing obligation for criminal conduct can be determinedthrough following legal principles: Principle of autonomyPrinciple of autonomy is considered by court of law prior to making decision regardingcriminal conduct. In accordance with this principle an activity that causes injury or damage to thesociety is said to be prohibited by law. For this aspect examples of drugs can be considered. Asper this principle, consumption of all type of drugs should be legal because consumption of drugis decision of the individual3. However, state had stated that possession of certain type of drugsmust be criminalized because it has severe adverse impact such as addiction and illness (theutilitarian and paternalism argument)to the other people. In this aspect case of Regina v Browncan be considered. In accordance with the case facts, five appellants were convicted on variouscounts of ABH and wounding under the provisions of Offences Against the Person Act 1861. In this case, there was group of sadomasochistic homosexuals. Some of these men weresadist who had attained sexual satisfaction by causing pain to the others and there were somemasochists who enjoyed the pain. These activities were inclusive of piercing, branding andbeating sensitive parts4. These activities were conducted in private and it not resulted in thepermanent disability due to which client had provided their consent. In this case main issue wasthe Global Economy Pl.300 – 308.3Anna Sergi, Organised crime in English criminal law: Lessons from the United Kingdomon conspiracy and criminal enterprise [2015] 18(2) Journal of Money Laundering Control Pl.182– 201.4Catherine Heard, The law on hate crime [2013] 15(3) The Journal of Adult ProtectionPl.164 – 166.4
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