English law has been subject to being described as unprincipled and inconsistent in its approach to the question of whether the failure to act is a sufficient basis for criminal liability. This is due to a range of factors an example of which being the collection of convictions passed to defendants who have been charged with a crime, which did not involve a positive or direct action. In addition for those who have not been convicted, it is questionable whether the law is unprincipled as it is unclear about the moral obligation that individuals have to act and when a moral obligation is a legal obligation. There is also uncertainty regarding what is a sufficient basis for criminal liability as each case is different and it is difficult to measure just what type and how much of an omission is sufficient to warrant liability.
In the case of R v Miller, the defendant was charged with arson on the basis that he did nothing to extinguish the fire being caused by the cigarette that he had lit. The defendant himself is quoted as having said “I just left it”1 implying blatant carelessness in his conduct. This solidifies the fact that his direct actions were the cause of the fire, which would support the prosecutors approach to building the case based on this failure to act. However, the decision to apply case law and create a case on the basis of omission is questionable. Alternatively, the prosecutors could have opted for an alternative and less ambiguous route of recklessness and negligence. By doing so, they could argue based on a positive action, which was him recklessly lighting a cigarette indoors rather than his failure to act. That way, he is being prosecuted for actually doing something rather than not.
In addition to this approach to the question of whether the failure to act is a sufficient basis for criminal liability is questionable in this circumstance as it is said that the defendant as prosecuted on the basis of one of the five duty situations under which an individual who fails to act is liable: “creation of a dangerous situation”2. However, the house was empty thus the danger was to himself, which would suggest that he is being prosecuted for endangering himself. Lord Diplock stated, “I see no rational ground for excluding from conduct capable of giving rise to criminal liability conduct which consists of failing to take measures that lie within one’s powers to counteract a danger that one has created”3.
This statement emphasises that the focus is the danger created however the crime is damaging property thus the argument being used to prove his guilt does not quite match the crime as no one beside himself would have been harmed. In fact, £800 of damage was done thus maybe a fine would have been more appropriate sanction than a sentence. It can thus be suggested that the law requires individuals to “put right that which goes wrong”4 and in not doing so, the defendant may have become a victim of the judges morals impacting the case ultimately suggesting that although there is no written law, individuals are essentially forced into behaving in a manner which would be considered noble. This also suggest that the law is unprincipled in its approach to deciding weather the failure to act should result in criminal liability.
The case of R v Stone, R v Dobinson further supports this argument as the defendants have also been convicted on the failure to act, however, it could be argued that in comparison to Miller, Stone and Dobinson have no direct cause of the incident. According to Ashworth, there are “three principals that have particular relevance to criminal liability for omissions”5 all three of which being applicable to this case as the situation was urgent, the preservation of life was necessary and the defendants have the opportunity and arguably the capacity to act. Despite all this, British law is often noted for not having a ‘good samaritan law’ that requires individuals to act in ways that would be considered to be morally right. Nonetheless, making individuals criminally liable for the failure to act in cases such as this contradicts that suggestion.
It can be said that the defendants had assumed responsibility for the victim and Stone had a close/special relationship requiring him to act. Both these sisutatuons can be said to be deterministic. In this case, it is being assumed that because they lived together Stone had taken responsibility for Fanny however she was a fully grown adult with the capacity to make her own choices. Although she became immobilised, that was no fault of Stones. Secondly the law deterministically assumed that their sibling relationship suggests that they are close or that he felt any affection for her thus, it could be said to be unjust that he was prosecuted based on this. In the case of Mrs Dobinson it can be said that she simply was unlucky enough to have been the neighbour and the fact that she on one occasion helped to wash fanny, surely she should be praised rather than sanctioned. In this case Dobinson could be seen as being unfortunately bound to the incident on the basis that she was a neighbour.
This case gives rise to Lord Hoffman’s “why pick on me” argument6 which puts into question whether an individual should be help responsible for something that arguably should have been prevented by the individual whom is affected even if they did not cause it.
Both these case demonstrate how unclear and sometimes unjust it may be to criminalise the failure to act and suggest that the law need to be clearer on the distinction between legal obligations and moral obligations.
R v Miller  2 AC 161
J.Loveless, Criminal law:text, cases and materials (4th, Oxford University Press , e.g. Oxford 2014 ) 52
R v Miller  2 AC 161
W.Wilson, Criminal Law: Doctrine and Theory (3rd, Pearson Education Limited , Essex, England 2008) 75
Ashworth, Positive Obligations in Criminal Law (1st, Hart, North America 2013) 40
Stovin v Wise  3 W.L.R. 388 (HL)