Читать книгу Criminal Law - Mark Thomas - Страница 79

First, there are some crimes that are not capable of being committed by an omission. For example, the offences of robbery and burglary require the use of force or fear of force and entry into a building or part of a building respectively. Naturally, neither of these conditions can be met by a failure to act; thus the offences cannot be committed by omission. In addition, as the name suggests, unlawful act manslaughter cannot be committed by omission (R v Lowe [1973] QB 702). Further, inchoate offences cannot be committed by omission (see Chapter 5). A notorious example often cited is that of R v Ahmad (1986) 52 P & CR 346 which concerned a landlord who was charged with having done ‘acts calculated to interfere with [the victim’s] peace and comfort’ contrary to the Protection from Eviction Act 1977. In that case, the landlord had merely failed to carry out renovations to the victim’s house and this left the property uninhabitable (thus interfering with their peace and comfort). The Court of Appeal considered such a failure to amount to an omission, and not an act, and therefore the defendant could not be liable for an offence requiring him to ‘do acts’.

An example of an offence that can be committed by a failure to act is murder, which has long been held to be able to be committed by an omission (R v Gibbins and Proctor (1918) 13 Cr App R 134). Ultimately, deciding whether an offence is capable of commission by omission is a matter of interpretation and such interpretation must be done on a case-by-case basis.

Table 2.6Offences and omissions

Offences capable of commission by omission	Offences incapable of commission by omission
Murder	Theft and robbery
Gross negligence manslaughter	Unlawful act manslaughter
Actual bodily harm	Burglary
Grievous bodily harm	Rape; assault by penetration; sexual assault
Criminal damage	Certain offences of fraud

There are certain offences for which the law is unsure as to whether an omission can satisfy liability. Take, for example, the offence of common assault. At present, there is no judgment which provides that common assault may only be satisfied by an ‘act’. Indeed, Smith (‘Liability for Omissions in Criminal Law’ (1984) 4 LS 88) argues that the need for an act in such circumstances is ‘unnecessary’. In Chapter 9, we consider the cases of Fagan v Metropolitan Police Commissioner [1969] 1 QB 439 and DPP v Santana-Bermudez [2004] Crim LR 471 which may shed some light on this issue or give rise to further problems.