Читать книгу Criminal Law - Mark Thomas - Страница 77

Fletcher in his text, Rethinking Criminal Law (Little Brown, 1978) distinguishes two forms of liability for omissions:

•‘breach of duty to act’; and

•‘commission by omission’.

According to Fletcher, where liability may be imposed for breach of a statutory obligation to act, this is known as a ‘breach of duty to act’. Specifically, this relates to conduct crimes where there is no requirement for the incidence of harm to be proved. The second type relates to result crimes which Fletcher labels ‘commission by omission’. This is where liability is imposed ‘for failing to intervene, when necessary, to prevent the occurrence of a serious harm such as death or the destruction of property’.

This classification is useful and provides a strong starting point for omission liability. However, you will find that the law of omissions is generally classified now as determinative on the facts of the particular case. For example, we do not speak of a general ‘breach of a duty to act’ but, rather, of a breach of a contractual duty to act (see R v Pittwood (1902) 19 TLR 37 below). Likewise, we do not speak of a general ‘commission by omission’, but, rather, we look towards specific established duties such as those created by relationship or dependency. Fletcher’s classification remains helpful in a given case; however, it is the author’s contention that omissions require no general classification and instead the focus should be on the specific facts of the case at hand.