It is contended, however, that the distinction lies in the manner of being released from a duty. Should a duty extinguish as a result of the passage of time, eg the end of employment or the completion of an act, this would amount to the ‘termination’ of a duty. A ‘release’, on the other hand, is concerned with the circumstances where the victim, orally or by conduct, voluntarily relieves an individual of his duty to act. In theory, this is useful distinction; in practice, however, it is unlikely to have any great effect.
In relation to being ‘released’ from one’s duty to act, we are concerned with two specific contexts.
2.6.5.1Duty passing to another
The first circumstance to consider is whether an individual can be released from his duty upon it being passed to another.
example
Jack finds Jill unconscious in their home. Jack attempts to revive her but fails and instead calls for an ambulance.
In this example, Jack has established a duty upon attempting to revive Jill; however, upon arrival of the ambulance, surely common sense would dictate that the duty to act would transfer from Jack to the emergency services who are now responsible for the care of Jill.
2.6.5.2Duty is absolved
The second circumstance is where the victim releases the individual from his duty to act, as opposed to the duty being passed on to another. This is a difficult concept to understand given the necessity for a rational and autonomous decision on the part of the victim who releases the individual from his duty. Some light was shed on this area by the first instance decision of R v Smith [1979] Crim LR 251, where the trial judge in the Crown Court suggested that if a rational decision is possible from the victim, such decision may lawfully remove the defendant from his duty to act. Specifically, Griffiths J directed the jury to consider the following:
If [the victim] does not appear too ill it may be reasonable to abide by her wishes. On the other hand, if she appeared desperately ill then whatever she may say it may be right to override.
A number of cases in the civil courts have determined that where a rational and mentally competent adult chooses to release someone from their duty of care, this must be legally adhered to. This is so even where it would be against the best interests of the party releasing the duty (Re T (adult: refusal of treatment) [1993] Fam 95; Re C (adult: refusal of treatment) [1994] 1 All ER 819; St George’s Healthcare NHS Trust v S [1999] Fam 26).
example
Jack is a prisoner who has spent the majority of his young life in prison. Jack is addicted to drugs and has a history of self-harm. Jack voluntarily decides to go on hunger strike and dies from starvation. A number of psychiatrists confirmed Jack to be mentally competent.
These were the facts of Secretary of State for the Home Department v Robb [1995] Fam 127. The Family Division of the High Court ruled that where an individual is competent to make a decision, his decision overrides all state interests, and the prison authorities were within their right to abide by his decision. In effect, the prisoner released the prison authorities from their duty to provide him with nutrition.
The cases listed above, however, are civil cases and thus not binding in criminal matters. But should a criminal case such as this come forward in the appellate criminal court, the decision would likely accord with that of the civil courts. The issue for the courts will be the whether the individual was acting in an autonomous and rational manner. Autonomy is considered in more detail in Chapter 7, but for an excellent discussion of autonomous decision making, see Herring, Medical Law & Ethics, 8th edn (OUP, 2020).
2.6.6Act or omission?
Up to this point, we have discussed the difference between positive acts or conduct and a failure to act. One thing to note, however, is that such a distinction is not an easy one to draw. Child and Ormerod (Smith, Hogan, & Ormerod’s Essentials of Criminal Law, 3rd edn (OUP, 2019)) provide an excellent example of the difficulty in making this distinction, which has been adapted to conform to our previous examples.
example
Jack and Jill are playing tug-of-war and Jack lets go of the rope, causing Jill to fall and hurt herself. In this instance, the question becomes whether Jack has:
• acted (ie by letting go of the rope); or
• omitted (ie by stopping pulling the rope).
One might say that we look towards Jack’s intention to find whether his letting go of the rope was an act or omission; however, this results in the blurring of the elements of actus reus and mens rea. In this scenario, it is likely that Jack will have acted in letting go of the rope given that the pair were engaging in a tug-of-war and it appears nonsensical that Jack should suddenly fail to continue to pull the rope. That is but one interpretation and demonstrates that the line between a positive act and an omission is not an easy one to draw. This is especially so given that we may not be fully aware of the facts of the case. Suppose Jack let go of the rope because a bee was flying around his head, or he noticed that someone was in peril and required assistance. Those circumstances would suggest a failure to continue pulling the rope as opposed to an act of letting go of the rope.
What this example should show is that it is not always clear whether we are dealing with an act or an omission. This statement does not just apply to students studying the law, but to members of the judiciary applying/interpreting the law. Take the case of R v Speck [1977] 2 All ER 859 as an example.
case example
Charge: Gross indecency (Indecency with Children Act 1960, s 1)
Case progression: Crown Court – Guilty
Court of Appeal – Conviction upheld
Point of law: The definition of an act or omission varies
In R v Speck [1977] 2 All ER 859, the victim, a young girl, placed her hand on the defendant’s penis causing him to have an erection. The defendant failed to move the girl’s hand. The defendant was charged with and convicted of gross indecency in the Crown Court (an offence now contained in the Sexual Offences Act 2003).
The defendant appealed to the Court of Appeal, arguing that the offence required an ‘act of gross indecency’. The Court ruled that although the defendant’s failure to remove the girl’s hand amounted to an omission, the inactivity on the part of the defendant was an ‘invitation to the child to undertake the act’.
Speck demonstrates that although the statute required an ‘act’ on part of the defendant, his inactivity in preventing the girl from continuing her act could amount to an act of gross indecency. The inactivity itself amounted to an invitation for the girl to continue in her actions and thus was sufficient for the jury to find the defendant liable. On Speck, Herring (Criminal Law: Text, Cases, and Materials, 9th edn (OUP, 2020)) contends that the conduct of the defendant could ‘more naturally be regarded as an omission’. Herring goes on to say that ‘[i]t is hard to avoid the feeling that the court understandably disapproved of the man’s actions and so labelled it as an act to ensure a conviction’.
Withdrawal of life support: act or omission?
Another example worthy of consideration is that of withdrawing life support treatment and whether this amounts to an act or omission. Our authority on this point is the case of Airedale NHS Trust v Bland [1993] AC 789 (see also