In order to establish criminal liability, the external elements of that offence must be established. These external elements are known as the actus reus. After this has been proved, the mens rea must be proved in respect of each of those guilty elements. The actus reus and mens rea must occur at the same time, although the interpretation of this can vary with regards to the offence. There are three categories than an offence can fall into when examining the actus reus. The first is that there was a ‘voluntary act’, in which case the accused has voluntarily committed the act. The second possibility is known as ‘the state of affairs’. This simply requires that a state of affairs be present which causes the accused to have committed an offence. Offences arising in this manner are often ones of strict liability. An example of this is found in Lassonneur . Here, the police had brought a woman into the UK against her will, but she was found nonetheless to be an illegal alien. The final basis of liability is liability for failing to act in certain circumstances. There is no general duty to act, however there are a notable amount of specific circumstances where there is such a duty, as developed through the common law. This is an area of law that presents several difficulties. The main difficulty that has arisen is the attempt to categorise the various duties. There has also been much debate over whether or not certain crimes are even capable of being committed by omission. While the common law has developed certain offences to the extent that they are capable of being committed by omission, such situations are rare. In most cases, the common law has been hostile towards the idea of penalising a failure to act. As Smith and Hogan said “It seems to have been thought that the function of the criminal law was to prevent men from doing positive harm and it was left to public opinion, morality and religion to encourage the doing of good works”
Omissions have been made criminal in some cases by way of statutes. An example of this is found in s.72(2) Road Traffic Act 1961. The section makes it an offence not to report a road traffic accident to the Gardaí within twenty four hours of the incident. There is a long list of similar offences such as driving without third party insurance or not displaying ingredients on food packaging, but it is pointed out that there is usually a positive action to accompany the omission in the case of statutes making an omission an offence. The particular wording an a statutory offence is often very important when deciding whether or not it can be committed by omission, but the case law is quite inconsistent in its interpretations. Another example of this is the British case of R v Firth . Here the defendant was found guilty of deception by omission as he avoided telling the NHS that patients using NHS facilities were in fact private patients thereby obtaining facilities without payment.
Prosecutions for omissions are more prevalent under the common law. There is a popular illustration that is used to try to display the common law attitude towards omissions. This illustration involves a group of people watching a young child, whom they could easily save, drown in a large puddle of water. Unless there is a special relationship between the one of the onlookers and the child, then no crime has been committed regardless of how immoral it may seem. If one of the onlookers was a parent or guardian, then there would be a duty to act by way of their relationship. The difficulty arises in determining where to draw the line between a duty to act and no duty. There is no general principle in this area and the only way to try to identify this line is by reference to the case law. Notwithstanding this traditional hostility, however, some examples of individuals being punished for inaction do exist.
Usually, it is quite easy to make a distinction between a failure to act and a positive action; however this is...
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