Commission Versus Omission PDF

CHAPTER V COMMISSION VERSUS OMISSION Johannes Keiler 1. INTRODUCTION Regardless of the qualification of offences, there is one common element without which no criminal liability can arise. Normally, the actus reus doctrine requires some sort of cond...

CHAPTER V COMMISSION VERSUS OMISSION Johannes Keiler 1. INTRODUCTION Regardless of the qualification of offences, there is one common element without which no criminal liability can arise. Normally, the actus reus doctrine requires some sort of conduct, something ‘done’ by the defendant. Thus, all penal systems generally agree that the imposition of criminal liability requires at the very least some form of conduct, controlled by the perpetrator. Human conduct can however take different forms. Humans can bring about certain results by either taking positive steps to achieve a certain result or by failing to intervene and let events run their course when the law would have demanded an intervention. Traditionally legal doctrine stipulates that criminal liability is predicated on some form of positive action. Therefore, this fundamental requirement is in legal theory also often referred to as the ‘act requirement’. However, the term act requirement is slightly misleading as it suggests that the imposition of criminal liability always requires an (voluntary) act. This is however a misconception as criminal justice systems also frequently punish the culpable omission of an act expected of a person by law. This suggests that there may be more to acts than mere voluntary movements.1 In this chapter we will therefore discuss not only offences of commission, but also different kinds of criminal omissions. 2. OFFENCES OF COMMISSION: THE THEORY OF CONDUCT AND THE BASELINE OF CRIMINAL LIABILITY A fundamental question is whether or not a conduct has occurred which warrants the application of criminal law and sanctions. Holding people liable even though they have done nothing wrongful (e.g. due to their race, religion, 1 W. Wilson, ‘Central Issues in Criminal Theory’ (Hart Publishing 2002), p. 80. Intersentia 121  Johannes Keiler political or sexual orientation, political affiliations, etc.) would not only fail to respect citizens’ autonomy but would furthermore make the application of criminal law an arbitrary and oppressive enterprise. Criminal law ought to treat citizens as responsible subjects rather than objects of state coercion and is therefore generally thought to be founded on the principle that a person must have been responsible for his or her actions in order to be held criminally liable and to be punished.2 Responsibility is frequently assigned to subjects rather than objects. ‘A subject is someone who acts, and an object is someone or something that is acted upon’.3 It seems absurd to us nowadays to hold a door responsible for being closed after having inadvertently bumped into it, and nor would we assign responsibility to a horse for kicking its rider. Yet in the Middle Ages animals were frequently held responsible for the harm they caused and until the 19th century the practice of imposing a fine on an inanimate object (deodand) persisted in English law.4 Since then our conception of responsibility has however changed and it is now widely recognised that only subjects can incur responsibility. What this concept of responsibility exactly denotes is however a philosophical question. While a variety of explanations for the foundation of responsibility in criminal theory (such as choice and character) are conceivable, the prevalent view considers a certain set of capacities key for criminal responsibility. We will briefly discuss these different capacities in a subsequent section. For now it suffices to note that the act requirement provides an important link to the theoretical and philosophical foundations of criminal law and thereby helps to determine and shape the contours and demeanour of any criminal justice system. 2.1. DIFFER ENT THEOR IES OF CONDUCT Over the years myriad different theories have emerged that try to establish a unitary concept of conduct that can serve as a basis for the process of attributing criminal liability.5 2.1.1. The causal theory of action, or the ghost in the machine One theory of conduct that has greatly influenced the criminal law’s perception of conduct for many years is the ‘causal theory of action’. According to this 2 See: ‘Criminal liability: Insanity and Automatism – A Discussion Paper’ [LAW COM 23 July 2013], p. 197. 3 G.P. Fletcher, ‘Basic Concepts of Criminal Law’ (Oxford University Press 1998), p. 43. 4 ‘Criminal liability: Insanity and Automatism – A Discussion Paper’ [LAW COM 23 July 2013], p. 205. 5 It is however questionable whether such a unitary concept of conduct covering all offences to be found in criminal law is achievable at all. 122 Intersentia  Chapter V. Commission versus Omission theory, a criminal act consists in a ‘willed muscular contraction’ or a ‘willed bodily movement’. This theory is based on a 19th-century dualistic concept of man as creatures of animus and corpus. In other words, the animus, i.e. the human will, was seen as the cause of physical action as willed bodily movements. Modern psychological insights have however shed some doubt on this vision. The division of animus and corpus, or the dogma of the ghost in the machine, seems too simplistic to explain the many facets of human nature.6 In its early days the causal theory of action was the prevalent theory in the German7 and the Dutch8 penal system, but both systems have by now discarded the theory due to its apparent shortcomings. In the English penal system the theory is by and large still accepted.9 However, in England scholars have also strongly criticised the traditional causal act requirement and have proposed different theories of conduct.10 Despite its influential nature, the causal act requirement from the early th 19 century is no longer able to capture the ever-expanding ramifications of modern criminal law. Even if in many cases criminal conduct will undoubtedly involve bodily movements, this is not always necessary, as modern human conduct, assisted by modern technologies, has reached a level of sophistication that can no longer exclusively be defined in terms of willed bodily movements. The shortcomings of this theory become particularly apparent with regard to omission liability.11 If one conceives human action pursuant to the causal theory as willed bodily movements, it becomes clear that omissions do not readily fit this description of conduct. Moreover, such a strict focus on human behaviour becomes unworkable in the context of corporate wrongdoing. Many penal systems nowadays impose punishment on corporations for criminal harm caused by them. It seems obvious that the conduct of corporations can hardly be reconciled with the description of conduct as willed bodily movements. 6 See for instance: H.L.A. Hart, ‘Punishment and Responsibility’ (Oxford University Press 2008), p. 101. 7 C. Roxin, ‘Strafrecht Allgemeiner Teil, Band I Grundlagen: Der Aufbau der Verbrechenslehre’ (Verlag C.H. Beck 2006), pp. 241–24; J. Wessels, W. Beulke and H. Satzger, ‘Strafrecht Allgemeiner Teil, Die Straftat und ihr Aufbau’ (C.F. Müller Verlag 2014), pp. 38–40. 8 E. Gritter, ‘Functioneel plegen door een natuurlijke persoon’, in van der Leij (eds.), Plegen en Deelnemen (Kluwer 2007), p. 6. 9 D. Ormerod and K. Laird, ‘Smith and Hogan: Criminal Law’ (Oxford University Press 2015), pp. 59–60; G. Williams, ‘Criminal Law: The General Part’ (Stevens & Sons Limited 1953), p. 15. For a different approach see: W. Wilson, ‘Central Issues in Criminal Theory’ (Hart Publishing 2002), p. 80. 10 W. Wilson, ‘Central Issues in Criminal Theory’ (Hart Publishing 2002), pp. 77–81; R.A. Duff, ‘Answering for Crime’ (Hart Publishing 2007), pp. 95–12; A.P. Simester, ‘On the so called Requirement for Voluntary Action’ Buffalo Criminal Law Review (1998), pp. 403–430. See also: G.P. Fletcher, ‘On the moral irrelevance of bodily movements’ University of Pennsylvania Law Review (1994), pp. 1443–1453. 11 C. Roxin, ‘Strafrecht Allgemeiner Teil, Band I Grundlagen: Der Aufbau der Verbrechenslehre’ (Verlag C.H. Beck 2006), p. 242. Intersentia 123  Johannes Keiler 2.1.2. The teleological theory of action: human conduct is ‘seeing’, not blind The shortcomings of the causal theory of action led the German scholar Hans Welzel to develop an entire school of criminal law based on the rejection of the theory. In his teleological (or goal-orientated) theory of action he argued that human action was intrinsically purposive and not merely the external manifestation of an inner mechanism.12 The crucial difference between the two theories thus is that the content of the will plays no role in the concept of action in the causal theory, while in the teleological theory the content of the will, i.e. the aim, constitutes an element of the very concept of action. It was argued that action was not blind, it was ‘seeing’. As human action has an inherent teleological component, one cannot understand the nature and meaning of an action unless one also knows the actor’s purpose. For certain offences this insight is certainly correct. For instance, if someone is colour copying banknotes, it can be that his intention is to forge money or to carry out a practical joke on one of his friends. Here the notion of conduct (that is prohibited by law) cannot be sensibly applied without regard to the mental state of the accused. However, the teleological theory of conduct encounters insurmountable obstacles with regard to omission and negligence liability, as it is difficult to claim in these instances that the person acted in a goal-orientated way.13 Thus this theory of action has also accordingly been widely rejected. 2.1.3. The social theory of action: the context in which the act occurs is significant The social dimension of conduct is central to the so-called social theory of action. The doctrine in essence holds that criminal conduct needs to be interpreted in the social context in which it occurred. Meaning is not fixed; it is socially negotiated, so it is argued. It conceives conduct as a social rather than a natural phenomenon. Conduct is regarded as a part of a social pattern which determines its relevance for the attribution of criminal liability.14 The movement of a hand can thus in one context be interpreted as a greeting and in another as a threat. Human conduct should not be understood as a pure ontological or self-existing causal or teleological process. It simply cannot be separated from its context and the social reality in which the subject acts. Conduct acquires 12 C. Roxin, ‘Strafrecht Allgemeiner Teil, Band I Grundlagen: Der Aufbau der Verbrechenslehre’ (Verlag C.H. Beck 2006), pp. 243–248. 13 See: E.-J. Lampe, ‘Willensfreiheit und strafrechtliche Unrechtslehre’ Zeitschrift für die gesamten Strafrechtwissenschaft (2006), pp. 11 et seq. 14 E. Gritter, ‘Functioneel plegen door een natuurlijke persoon’, in van der Leij (ed.), Plegen en Deelnemen (Kluwer 2007), p. 14; J. Remmelink, ‘Inleiding tot de studie van het Nederlandse Strafrecht’ (Gouda Quint 1995), p. 161. See also: C. Roxin, ‘Strafrecht Allgemeiner Teil, Band I Grundlagen: Der Aufbau der Verbrechenslehre’ (Verlag C.H. Beck 2006), pp. 248–250; J. Wessels, W. Beulke and H. Satzger, ‘Strafrecht Allgemeiner Teil, Die Straftat und ihr Aufbau’ (C.F. Müller Verlag 2014), pp. 38–39. 124 Intersentia  Chapter V. Commission versus Omission meaning in relation to a concrete society and as part of a particular social system or subsystem. It goes without saying that attributing meaning to conduct can never be value neutral, as social and legal norms will play a prominent role. Thus, the social theory of action is both descriptive and normative in nature, combining ontological and normative criteria.15 The emphasis on the social context of the conduct paves the way for the attribution of criminal liability without the involvement of physical movement, for instance to persons who have not physically committed a criminal offence but who are held responsible for the acts of another because they, due to a particular social rank, had control over the conduct of the actual offender and were thus in a position to prevent the criminal harm from occurring. Likewise, the doctrine allows the conduct of corporations to be perceived as relevant for the attribution of criminal liability. In our society organisations and social networks take a prominent role which materialises in ‘new’ concepts of criminal liability where the focus is no longer exclusively on the individual physical perpetrator, but also on factual responsible perpetrators behind the scene.16 This is excellently portrayed by the Dutch doctrine of functional perpetration and the German doctrine of hegemony over the act which will be discussed in a subsequent chapter.17 It is the social theory of conduct which nowadays prevails in the Dutch and the German penal systems.18 And while in the English system lip service is still formally paid to the causal theory of action, in scholarly writing the inclusion of the social context in the evaluation of the actus reus seems to be gaining more and more acceptance.19 2.2. THE CONDUCT R EQUIR EMENT IN PR ACTICE As discussed above, criminal law ought to treat people as subjects, i.e. rational agents and therefore a criminally relevant conduct must reflect this agency. 15 A. Schönke and H. Schröder, ‘Kommentar zum Strafgesetzbuch’ (Verlag C.H. Beck 2014), Vorbem §13 Mn 33–34. 16 J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), pp. 157–158. See: Chapters X and XI. 17 See: Chapter X. 18 F. De Jong, ‘Tussen schuld en gedraging: normativering’, in Kempen, et al. (eds.), De gedraging in beweging (Wolf Legal Publisher 2007), p. 66; J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), p. 153; J. Remmelink, ‘Inleiding tot de studie van het Nederlandse Strafrecht’ (Gouda Quint 1995), p. 161; E. Gritter, ‘Functioneel plegen door een natuurlijke persoon’, in van der Leij (ed.), Plegen en Deelnemen (Kluwer 2007), p. 14. See also: J. Wessels, W. Beulke and H. Satzger, ‘Strafrecht Allgemeiner Teil, Die Straftat und ihr Aufbau’ (C.F. Müller Verlag 2014), p. 40. 19 D. Ormerod and K. Laird, ‘Smith and Hogan: Criminal Law’ (Oxford University Press 2015), pp. 59–61; W. Wilson, ‘Central Issues in Criminal Theory’ (Hart Publishing 2002), pp. 80–81; R.A. Duff, ‘Answering for Crime’ (Hart Publishing 2007), pp. 98 et seq.; R.A. Duff, ‘Criminal Attempts’ (Clarendon Press 1996), pp. 293 et seq. Intersentia 125  Johannes Keiler This is a fundamental requirement, because unless a person has the capacity and fair opportunity to adjust his behaviour to the law its penalties ought not to be applied to him.20 ‘The movements of a person asleep, in a trance, suffering an epileptic seizure or responding reflexively are no more “actions” than the beating of one’s heart or the motion of a falling tree’.21 To treat people as subjects requires that criminal liability cannot be imposed unless the subject was responsible for the occurrence of the actus reus, i.e. unless its occurrence can be attributed to him. The conduct requirement thus reflects the underlying fundamental respect of the law for individual autonomy in relation to the imposition of criminal liability. As previously discussed, in order to be criminally responsible a person ought to possess certain capacities. On a fundamental level an ability to be aware of oneself as an agent is required. This arguably separates humans from most animals who lack any idea of themselves as actors. Furthermore, rationality as well as a capacity for self-reflection and evaluation is essential to human agency. Finally a capacity to control one’s actions which includes a capacity to have done otherwise is considered vital for responsibility. If such capacities are absent or impaired, i.e. if the actor could not control his conduct, the imposition of criminal liability is unwarranted. We do not impose punishment in these situations for the same reasons, as we do not punish animals, minors or the insane.22 What is missing in these cases is ‘a vital link between mind and body’.23 In essence the core ingredients of a criminally relevant conduct are thus consciousness and control. These ingredients are also sometimes summarised in criminal law as the requirement of ‘voluntariness’. It is often said that conduct ought to be voluntary for criminal liability to arise. On a doctrinal level, the voluntariness requirement for conduct raises questions about whether this element is best conceived as part of the actus reus or rather as an element of mens rea.24 While it is certainly possible to perceive voluntariness as a mental element, it is arguably best described as an essential constituent of conduct, which is part of the actus reus. It is submitted here that as human conduct is generally thought to be goal- orientated, it does not seem odd to think that traces of mens rea can also be found in the concept of conduct. After all, the criminal relevance of many forms of conduct can arguably only be fully understood by knowing their underlying purpose.25 20 H.L.A. Hart, ‘Punishment and Responsibility’ (Oxford University Press 2008), p. 181. 21 C. Finkelstein, ‘Involuntary Crimes, Voluntarily Committed’, in Shute and Simester (eds.), Criminal Law Theory: Doctrines of the General Part (Oxford University Press 2002), p. 143. 22 W. Wilson, ‘Central Issues in Criminal Theory’ (Hart Publishing 2002), p. 104. 23 H.L.A. Hart, ‘Punishment and Responsibility’ (Oxford University Press 2008), p. 107. 24 See: D. Ormerod and K. Laird, ‘Smith and Hogan: Criminal Law’ (Oxford University Press 2015), pp. 62 et seq. See also: A. Lynch, ‘The mental element in the actus reus’ The Law Quarterly Review (1982), pp. 109–142. 25 See also: A. Lynch, ‘The mental element in the actus reus’ The Law Quarterly Review (1982), pp. 109–142. 126 Intersentia  Chapter V. Commission versus Omission Therefore, voluntariness seems best understood as part and parcel of the theory of conduct, and a denial of voluntariness thus has the result that the actus reus element cannot be established. On this view, the establishment of criminal liability accordingly already fails during the first evaluative step or question, i.e. was there criminally relevant conduct? In addition, regardless of which conceptualisation one finds more apt, it does in any case seem clear that voluntariness of conduct is a more fundamental element of criminal liability than what we normally associate with mens rea issues stricto sensu, such as the intention to cause, or foresight of, the results of the act and awareness of circumstances. Voluntariness (i.e. deliberate control) can in practice arguably be lost or impaired in two ways. First, the person’s capacity to reason and control his behaviour can be disabled by impaired consciousness. Second, the person’s capacity to reason might be intact but due to some external events he may have lost the physical control over the movements of the body.26 If this is the case, the harm that occurs cannot be described as springing from human agency but is rather conceived as an accident, i.e. a natural event. 2.2.1. Loss of physical control All penal systems agree that conduct in which there is no voluntary control cannot qualify as criminally relevant conduct. This excludes conduct from the realm of criminal law in which a person is for instance used as an instrument or cannot control his or her actions due to the absence of consciousness. Under this category fall for instance cases of vis absoluta. Suppose for instance that Rob is pushed by Peter from a diving platform and consequently lands on Carl who is severely injured. In this case Rob would not be held responsible for injuring Carl as he did not will the harmful conduct (vis absoluta).27 Further actions which do not reflect deliberate control over the conduct are reflexes, for instance if Rob drops a glass after being stung by a bee, or kicks his doctor during an examination of his knee-jerk reflex. Moreover, spasms do not 26 See also: W. Wilson, et al., ‘Violence, Sleepwalking and the Criminal Law: Part 2: The legal aspects’ Criminal Law Review (2005), pp. 615–616; A.P. Simester, J. Spencer, G.R. Sullivan and G. Virgo, ‘Simester and Sullivan’s Criminal Law – Theory and Doctrine’ (Hart Publishing 2013), p. 109. 27 The criminal law would rather turn to Peter in this circumstances who used Rob as an ‘instrument’. See also: J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), p. 156; J. Remmelink, ‘Inleiding tot de studie van het Nederlandse Strafrecht’ (Gouda Quint 1995), pp. 162–16; A.P. Simester, J. Spencer, G.R. Sullivan and G. Virgo, ‘Simester and Sullivan’s Criminal Law – Theory and Doctrine’ (Hart Publishing 2013), p. 109; J. Wessels, W. Beulke and H. Satzger, ‘Strafrecht Allgemeiner Teil, Die Straftat und ihr Aufbau’ (C.F. Müller Verlag 2014), p. 42; C. Roxin, ‘Strafrecht Allgemeiner Teil, Band I Grundlagen: Der Aufbau der Verbrechenslehre’ (Verlag C.H. Beck 2006), pp. 266–271. Intersentia 127  Johannes Keiler qualify as criminally relevant conduct. The paralysed person who kicks his therapist due to spasms or the patient who punches a nurse during an epileptic fit can neither control nor will their actions and can accordingly not be held responsible for them. Finally the conduct of unconscious or sleeping persons cannot trigger criminal liability. The current state of affairs in all three penal systems was nicely summarised by Lord Justice Denning in the English case of Bratty v Attorney General for Northern Ireland in which the defendant’s claim of involuntary conduct was rejected by the jury as well as by the House of Lords: Bratty Appellant v Attorney-General for Northern Ireland, House of Lords AC 386 ‘On May 4, 1961, the appellant, George Bratty, was convicted at the Downpatrick Assizes before McVeigh J. of the murder of Josephine Fitzsimmons on December 22, 1960. The following summary of evidence given at the trial is taken from the opinion of the Lord Chancellor: Josephine Fitzsimmons, who was 18 years old, lived with her widowed mother near Hillsborough [Co. Down] in the Monument Road – a road which had been described as lonely and quiet. Her mother had a cousin, Miss Morrow, who resided with her brother at 44, Irwin Place, Donacloney, a village six or seven miles from Hillsborough. With them there lived the appellant George Bratty, a young man of about 26. […] [The victim had asked the defendant to drive her into Hillsborough to deliver a message and get some sweets.] She was seen in Hillsborough but neither she nor the appellant reached her home again. At 11.15 p.m. her dead body was found in Grove Road on the grass verge. She had been strangled by a stocking from her left leg. She had not been sexually assaulted but her underpants had been removed and were found with her left boot a short distance from the body on the grass verge. The appellant […] drove his car in the direction of Donacloney. When some two or three miles from Donacloney the car broke down and was left at the side of the road, an offer of a tow having been refused. He arrived at Donacloney on foot about 4 a.m. He was found by the police nearly an hour later in a garage at the bottom of the Morrows’ garden and taken to the police station. Shortly after 1 p.m. on December 23, the appellant was seen by Detective-Head- Constable Russell, Dr. Howard of the Forensic Science Laboratory being present. Russell asked what was the cause of two scratches on his neck. The appellant said: “It was a young girl did it.” He was then cautioned and made the following statement: “Something terrible came over me. […] I had some terrible feeling and then a sort of a blackness. Just with that I took one look at her, caught her, threw her right over the back of the seat into the back. I caught her with my two hands. When I caught her with my two hands I took one of her stockings and put it round her neck. I tightened the stocking. Afterwards I went down the road a piece – down the road to the left of her house – took her out of the car and left her on the side of the road. Drove on towards home. I didn’t mean to do what really happened. 128 Intersentia  Chapter V. Commission versus Omission Many times I took her down to Hillsborough at week ends and nothing like that ever happened until last night. I apologise for what happened. I don’t think it would have happened only that terrible feeling came over me at the time. I don’t know really what caused it at all. I think that’s about all I can say.” […] LORD DENNING. My Lords, in the case of Woolmington v. Director of Public Prosecutions Viscount Sankey L.C. said that “when dealing with a murder case the Crown must prove (a) death as the result of a voluntary act of the accused and (b) malice of the accused.” The requirement that it should be a voluntary act is essential, not only in a murder case, but also in every criminal case. No act is punishable if it is done involuntarily: and an involuntary act in this context – some people nowadays prefer to speak of it as “automatism” – means an act which is done by the muscles without any control by the mind, such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing, such as an act done whilst suffering from concussion or whilst sleep-walking. […] The term “involuntary act” is, however, capable of wider connotations: and to prevent confusion it is to be observed that in the criminal law an act is not to be regarded as an involuntary act simply because the doer does not remember it. When a man is charged with dangerous driving, it is no defence to him to say “I don’t know what happened. I cannot remember a thing,” see Hill v. Baxter. Loss of memory afterwards is never a defence in itself, so long as he was conscious at the time, see Russell v. H.M. Advocate; Reg. v. Podola. Nor is an act to be regarded as an involuntary act simply because the doer could not control his impulse to do it. When a man is charged with murder, and it appears that he knew what he was doing, but he could not resist it, then his assertion “I couldn’t help myself ” is no defence in itself, see Attorney-General for South Australia v. Brown: though it may go towards a defence of diminished responsibility, in places where that defence is available, see Reg. v. Byrne: but it does not render his act involuntary so as to entitle him to an unqualified acquittal. Nor is an act to be regarded as an involuntary act simply because it is unintentional or its consequences are unforeseen. When a man is charged with dangerous driving, it is no defence for him to say, however truly, “I did not mean to drive dangerously.” There is said to be an absolute prohibition against that offence, whether he had a guilty *410 mind or not, see Hill v. Baxter by Lord Goddard C.J. But even though it is absolutely prohibited, nevertheless he has a defence if he can show that it was an involuntary act in the sense that he was unconscious at the time and did not know what he was doing, see H.M. Advocate v. Ritchie, Reg. v. Minor and Cooper v. McKenna, Ex parte Cooper. […] Appeal against conviction dismissed.’ 2.2.2. Impaired consciousness The aforementioned cases of loss of physical control all involve a complete loss of control over the movement of the body due to certain external or Intersentia 129  Johannes Keiler internal factors. However, while the essence of automatism certainly lies in the lack of capacity to control one’s actions (or inactions) a complete loss of control does not always seem necessary to bar criminal liability. Yet to what degree consciousness/control ought to be impaired is open to debate and, as will become apparent, is often influenced by underlying policy reasons. Difficult in this respect are cases which involve automated conduct like driving a car. Conduct like shifting gears, breaking and accelerating takes place almost unconsciously, but in these cases the person also generally remains in control over his conduct and moreover semi-skilled automated conduct arguably reflects the person as a rational agent. A pertinent example for such cases can be found in the German decision regarding a driver who lost control of his vehicle, crashing into another car, because a fly had flown into his eye. The court held that in such situations some form of willed control was involved in the conduct which therefore was deemed criminally relevant.28 A comparable English case involving a form of impaired consciousness is Attorney-General’s Reference (No. 2 of 1992), where it was held that the condition known as ‘driving without awareness’, a trance-like state caused by long journeys on straight, flat, featureless motorways, in which the focal point of forward vision gradually comes nearer and nearer until the driver is focusing just ahead of his windscreen, could not support a defence of automatism because the driver nevertheless retained some control.29 Thus, a driver will only be able to escape liability if his actions at the relevant time were wholly beyond his control, the most obvious case being sudden unconsciousness. If however he retains some, albeit imperfect, control, and his driving, judged objectively, was below the required standard, he remains liable. The threshold in law, led by policy considerations, to accept that no criminally relevant conduct occurred in driving cases is thus rather high.30 2.2.3. The pitfalls of the conduct requirement As can already be deduced from the aforementioned case law, courts sometimes struggle to strike a fair balance between the need for public protection and fairness to the individual who lacked voluntary control over his actions. The courts are well aware that lack of (voluntary) control is relatively easy to assert and as it amounts to a denial of the actus reus element might result in a complete acquittal no matter how serious the charge. 28 16 July 1974 OLG Hamm NJW 1975, 657. 29 Attorney-General’s Reference (No. 2 of 1992) 4 All ER 683. 30 In England courts have in relation to other offences sometimes adopted a less stringent approach. See for instance: R v Quick 2 All ER 347, where the defendant was allowed to raise the defence of automatism on a charge of assault which had been committed in an onset triggered by hypoglycaemia notwithstanding the fact that the defendants condition was one of ‘mere’ semi-consciousness. 130 Intersentia  Chapter V. Commission versus Omission Difficulties can for instance arise in cases of temporary impaired consciousness, as for instance with regard to acts done by a person suffering from a mental illness short of insanity (e.g. stress psychosis or post-traumatic stress disorder).31 Consider for instance the case of a young woman who, having been raped some days before, allegedly in a psychogenic, dissociative fugue commits an armed robbery.32 These cases are difficult because the person in question may objectively seem conscious and in control of his/her actions, but the conduct may nevertheless be out of character and cast doubt on the general assumption that the offender acted with conscious mind or will. One advances even further into the grey areas of the conduct requirement if one considers crimes committed while sleepwalking. A well-known example in this context can be found in the Canadian case of R v Parks.33 In the small hours of the morning of 24 May 1987, 23-year-old Kenneth Parks, who at the time faced financial and personal problems as a result of his gambling habit, arose from bed, drove 23 km to the house of his parents-in-law and attacked them with a kitchen knife while both were asleep in bed, killing his mother-in-law and seriously injuring his father-in-law. Immediately afterwards he drove to a police station and reported the incident. Mr Parks was indicted for murder, but acquitted on all counts. The court, relying on expert witnesses and circumstantial evidence, held that Mr Park had been sleepwalking for the whole incident and could therefore not be held responsible for the killings. In fact, it was established that sleepwalking ran in Mr Park’s family and that despite his gambling problems he always had an excellent relationship with his parents-in-law. They were aware of his situation and always supported him. His relationship to his mother-in-law was particularly good, and she used to refer to him as the ‘gentle giant’. This case not only demonstrates the far-reaching implications that denial of voluntary conduct may have but also highlights some fundamental questions as to what it really means to act consciously and to exert control over one’s conduct. Clearly Mr Parks had some control over his conduct; otherwise he would not have been able to drive 23 km to the house of his parents-in-law. However, this rudimentary control seems to have been insufficient to ground criminal liability for murder. His conduct was arguably not considered an expression of his practical, rational agency. Be that as it may, complex issues can, finally, arise in cases where the loss of deliberate control occurred due to the prior disregard of diligent standards or is self-induced. An instructive case here is the English decision of R v Lipman.34 The defendant in this case had taken a considerable amount of LSD and believed he was fighting snakes and descending to the centre of the world, whereas he was actually suffocating his girlfriend. The court refused the application of the 31 See for instance: R v Bell 3 All ER 842 and R v T Crim LR 256. 32 R v T Crim LR 256. 33 R v Parks 2 SCR 871. 34 R v Lipman 1 QB 152. Intersentia 131  Johannes Keiler automatism defence on the ground that first and foremost the automatism was self-induced and moreover induced by the defendant’s own fault. In Germany, it is a controversial question whether acts of senselessly intoxicated persons can qualify as criminally relevant conduct.35 If the person’s capacity was completely removed by the intoxication, it is generally thought that no criminally relevant conduct occurred.36 It should however be noted that German law provides for a specific offence for people who commit crimes while seriously intoxicated, for which they could otherwise not be punished.37 Similarly to English law, in the Netherlands the doctrine of culpa in causa is also applied in such cases.38 Thus, it is important to note that in these cases liability will not be barred completely. Courts will then frequently select an earlier conduct as the founding element for the imposition of criminal liability, applying a culpa in causa, or prior fault reasoning respectively. This approach has mainly, but not exclusively, had a significant influence in various traffic offences. This is for instance the case where the driver of a vehicle falls asleep and then causes an accident, where liability is then often based on the driver’s failure to stop when feeling drowsy.39 2.3. CONCLUDING R EMAR KS R EGAR DING THE CONDUCT R EQUIR EMENT The foregoing discussion has revealed that a strict demarcation of criminally relevant or irrelevant conduct will not be always possible. Rather, grey areas will always remain, as the degree of consciousness or deliberate control can be gradually reduced, until one reaches a stage where the conduct can no longer be seen as an expression of human agency. When this will be the case, however, will also co-depend on medical and scientific evaluations and insights. Normative considerations might often play a role here as well. However, leaving grey areas aside, the key ingredients of the conduct requirement seem to be consciousness and control, which make the conduct a reflection of (human) agency. The conduct 35 M. Bohlander, ‘Principles of German Criminal Law’ (Hart Publishing 2009), p. 40. 36 A. Schönke and H. Schröder, ‘Kommentar zum Strafgesetzbuch’ (Verlag C.H. Beck 2014), Vorbem §13 Mn 39. See also: B. Fischer and J. Rehm, ‘Alcohol consumption and the liability of offenders in the German criminal system’ Contemporary Drug Problems (1996), pp. 707– 729. 37 See: §323 a GCC. See: Chapter VIII, section 8. 38 J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), pp. 349–351. 39 See for instance the English case of Kay v Butterworth 173 LT 191, where it was held that a driver could be held responsible for his antecedent failure to stop driving when he felt drowsy. For an almost identical ruling in Germany see: 18 November 1969 BGH NJW 1970, 520. See also: 17 November 1994 BGH NJW 1995, 795 where an epileptic was found guilty of negligently causing bodily harm, as he drove despite being aware of his condition. 132 Intersentia  Chapter V. Commission versus Omission requirement fulfils an important function in criminal law as it helps to ensure that mere thoughts, feelings and attitudes cannot trigger the state’s most fearsome power. Thus, it functions as a minimum threshold for criminal liability by generally requiring that the defendants’ liability be based on some form of externalised conduct. 3. OMISSION LIABILITY 3.1. INTRODUCTION Having analysed the theory of action it is now possible to proceed to discuss the second manifestation of human conduct. At first sight it can seem odd to impose criminal liability on people for failures to act, as the number of things we do not do every day far exceeds the number of things we actively do. While reading a book, I for instance do not help all the people sleeping rough in Amsterdam, Berlin or London. This potentially extremely broad scope of liability may arguably be one of the reasons why courts and academics have often approached omission liability with profound scepticism. Furthermore, the legal concept of actus reus, suggestive as it is of action rather than inaction, may be responsible for the erroneous belief that there is something untoward about imposing criminal liability for omissions. However, as will subsequently become apparent, recent developments seem to suggest that modern criminal law increasingly accepts and incorporates omissions and duties of care into the framework of criminal liability. Criminal liability for omissions can usually arise in two forms. First, a statute can explicitly impose liability for omitting to do something. These offences are defined in terms of a failure to act and impose a duty of care (such as the duty to report an accident to the police) on the citizens. Second, there are instances where offences, defined in terms of positive acts, like killing, burning or assaulting, can be committed by people who remain idle and let events run their course. Almost all European penal systems distinguish between these two manifestations of omissions. In England a distinction is made between offences of mere omission and offences of omission causing a result.40 By the same token the Netherlands41 and Germany42 distinguish between proper and improper crimes of omission. 40 D. Ormerod and K. Laird, ‘Smith and Hogan: Criminal Law’ (Oxford University Press 2015), pp. 72–74. 41 Eigenlijke en oneigenlijke omissiedelicten. See for instance: J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), p. 78. 42 Echte und unechte Unterlassungsdelikte. See for instance: H.H. Jescheck and T. Weigend, ‘Lehrbuch des Strafrechts: Allgemeiner Teil’ (Duncker & Humblot 1996), pp. 605–608. Intersentia 133  Johannes Keiler 3.2. STATUTORY DUTIES OF CAR E (OR PROPER CR IMES OF OMISSION) More and more duties of care are nowadays introduced by statutes. National legislators are increasingly inclined to impose duties to act in modern welfare or regulation offences where offences of failure to report or failure to comply with other requirements have become quite common.43 Especially in the industry, commerce and business context, general standards of diligence become more and more important, in order to circumscribe and prevent possible risks to the public. In many instances these diligence standards are nowadays enforced by means of proper crimes of omission. The well-known duties imposed on motorists to take a breathalyser test or in the event of an accident to stop, report the accident and provide information or documents can for instance be mentioned here.44 Yet outside the regulatory context an increase in omission liability also seems to be discernible. Consider for instance sections 19 and 38B of the English Terrorism Act 2000 and §138 (2) GCC which penalise a failure to bring a planned terrorist offence to the attention of the authorities.45 Likewise, general duties to report apply now to the financial sector in order to prevent and combat money laundering.46 The paradigm of statutory omission offences can however probably be found in so called ‘good Samaritan’ or ‘easy rescue statutes’. Article 450 DCC imposes punishment for the failure to take steps that one could take without danger to himself to save another from death.47 The German counterpart, §323c GCC, has a slightly broader scope, as it also imposes liability for the failure to render assistance in cases where no mortal danger for the victim is imminent.48 These offences impose punishment for a failure to render aid or assistance but are 43 Generally see: Law Commission Consultation Paper No 195, ‘Criminal liability in regulatory contexts’ (2010), pp. 9, 82 et seq. See also: section 111A(1)(c) Social Security Fraud Act 2001, making dishonestly failing to report a change of circumstances a criminal offence. Compare also: section 96 (11A) of the Transport Act 1968. 44 See: sections 6 and 170(4) of the Road Traffic Act 1988; §142 GCC which criminalises leaving the scene of an accident without cause and Article 163 of the Dutch Road Traffic Act 1994. 45 Note however that the general scope of §138 GCC introduces a general duty to report planned serious offences of which one is aware to the authorities. See also: Article 135 DCC which also imposes a duty to report planned serious offence of which one has knowledge to the police. 46 See: sections 330 and 331 of the Proceeds of Crime Act 2002 as well as §11 of the German Money Laundering Act (Geldwäschegesetz). See also: A. Ashworth, ‘Criminalising Omissions’, in A. Ashworth (ed.), Positive Obligations in Criminal Law (Hart Publishing 2013), pp. 56–66. 47 Article 450 DCC reads as follows: ‘A person who witnesses the immediate mortal danger of another person and who fails to render or procure such aid and assistance as he is capable of rendering or procuring where there is no reasonable expectation of danger to himself or others is liable to a term of detention of not more than three months or a fine of the second category, where the death of the person in distress ensues.’ 48 §323 c GCC reads as follows: ‘Whoever does not render assistance during accidents or common danger or need, although it is required and can be expected of him under the circumstances and, especially, is possible without substantial danger to himself and without 134 Intersentia  Chapter V. Commission versus Omission not designed to impose liability for the death or bodily harm of the person in distress due to the failure to aid. This peculiarity explains why these offences generally only impose light sentences (up to three months’ imprisonment in the Netherlands and up to one year in Germany). The wrong lies in the failure to carry out the generic duty to help fellow citizens in need rather than in a failure to prevent death or serious injury. In England such an easy rescue provision is absent.49 Drawing on the biblical good Samaritan parable, Lord Diplock for instance argued: ‘The conduct of the parabolical priest and Levite on the road to Jericho may have been indeed deplorable, but English law has not so far developed to the stage of treating it as criminal’.50 However, the desirability and feasibility of creating such a statute has been hotly debated.51 Critics in England have often argued that such an offence would be too general in nature, unnecessarily curtail the individual autonomy of citizens and would therefore be unnecessary and unworkable. It is however debateable whether such a strict individualistic approach is still acceptable in our modern interlinked society and, if not, whether some form of social responsibility to assist others should exist, particularly where there would be no danger to the rescuer. 3.3. COMMISSION BY OMISSION (OR IMPROPER CR IMES OF OMISSION) The second manner in which duties of care can emerge in criminal law is by judicial interpretation. The majority of criminal offences are worded in terms of positive actions. Murder is for example often defined as the prohibition on intentionally killing another human being. However, there are situations conceivable in which also failures to act may amount to murder. Just consider the paradigmatic example of a mother who intentionally fails to feed her child, leading to starvation. In this situation the question thus arises as to under what circumstances the verb ‘killing’ can be extended to encompass also cases of ‘letting die’. The scope of people failing to save the child may however be almost infinite. Everyone with some knowledge of the situation, such as for instance neighbours, friends, social workers or the child’s general practitioner, also arguably fail to save the child and could therefore in theory incur liability. Evidently, however, this would cast the net of criminal liability much too wide. violation of other important duties, shall be punished with imprisonment for not more than one year or a fine.’ 49 D. Ormerod and K. Laird, ‘Smith and Hogan: Criminal Law’ (Oxford University Press 2015), p. 88. 50 Lord Diplock in R v Miller 2 AC 162, at 175. 51 A. Ashworth, ‘The scope of criminal liability for omissions’ The Law Quarterly Review (1989), 424–459, A. Ashworth and E. Steiner, ‘Criminal omissions and public duties: the French experience’ Legal Studies (1990), pp. 153–164. Intersentia 135  Johannes Keiler The tricky question is thus where to draw the line. The doctrinal solution to this predicament was to punish omissions only if the actor was under a legal duty of care. The criminal law traditionally imposes negative duties (i.e. not to steal or kill) on everyone, but enforces positive duties (i.e. to render assistance, prevent a particular harm, etc.) only in regard to people with a special relationship to the victim, the source of danger, etc.52 The notion of a duty of care ensures that only people connected to the harm by such a relationship of responsibility will be subject to criminal punishment for failures to act.53 The duty of care requirement thus functions as a safeguard for individual freedom and autonomy, because were it not to exist, criminal law would severely encroach on our individual liberties by requiring us to prevent any harm known to us from occurring.54 Given its doctrinal significance it therefore seems pertinent to briefly discuss the concept of a duty of care before we turn to the general approach to offences of commission by omission adopted in England, Germany and the Netherlands and the different duty situations recognised by jurisprudence. 3.3.1. Duties of care in modern criminal law A duty of care can loosely be defined as a generally formulated obligation, which can be enforced by means of criminal law, to avoid certain acts or omissions likely to cause harm to others.55 Thus, duties of care usually oblige the citizens to observe a certain degree of diligence with regard to the interest protected by the respective law.56 However, the duty of care concept is an elastic one, so that its scope and shape can be adapted to the individual case at hand. Due to their general nature, duties of care can be incorporated in a multitude of different crimes. To be sure, the paradigmatic case of duty of care provisions is the case of omission liability, but duties of care by definition are to be found in crimes of negligence and endangerment offences as well. In English law for instance duties of care are of particular importance in the realm of gross negligent manslaughter. Recent developments show that duties of care have become increasingly popular tools in the context of criminal risk management.57 Furthermore, in 52 A. Ashworth, ‘The scope of criminal liability for omissions’ The Law Quarterly Review (1989), p. 424. 53 W. Wilson, ‘Central Issues in Criminal Theory’ (Hart Publishing 2002), p. 90. Note that the fault requirement, which must be present to make the omission blameworthy, and the concept of ‘possibility to intervene’ also circumscribe the scope of omission liability. 54 I. Kugler, ‘Two concepts of omission’ Criminal Law Forum (2003), pp. 426–427. See also: A. Ashworth, ‘The scope of criminal liability for omissions’ The Law Quarterly Review (1989), p. 429. 55 M.J.C. Visser, ‘Zorgplichtbepalingen in het Strafrecht’ (Gouda Quint 2001), p. 4. 56 M.J.C. Visser, ‘Zorgplichtbepalingen in het Strafrecht’ (Gouda Quint 2001), p. 4. 57 D. Roef, ‘Strafrechtelijke Verantwoordelijkheid in de Risicomaatschappij’, in Vos and Calster (eds.), Risico en voorzorg in de rechtsmaatschappij (Intersentia 2004), p. 222. 136 Intersentia  Chapter V. Commission versus Omission jurisprudence a trend towards accepting new duty situations or respectively extend the scope of existing duties also seems to be discernible.58 One reason for this development is that social reality has become too complex and changes too rapidly to be regulated by specific provisions.59 Duties of care are flexible and vague enough to cover a great variety of detrimental conduct by imposing a certain standard of care on the citizens. Duties of care constitute a powerful weapon in the armoury of the legislator regarding behaviour control, but carry the inherent danger that the attribution of criminal liability will be guided by hindsight bias, expediency, and considerations of social engineering. Furthermore, duties of care in general and omission liability in particular can cause frictions with the principle of legality and the rule of law. The principle of legality in essence holds that no person should be punished without prior legislative warning.60 Omission liability can run into conflict with the principle of legality in several ways. First, it can be argued that citizens are not accustomed to the concept of duties of care, in contrast to prohibitions, and may therefore incur criminal liability for conduct which they deemed to be in accordance with the law. The argument gains more force if one takes into consideration, as already mentioned, that duties of care are frequently created by jurisprudence ex post, i.e. after the conduct in question has taken place.61 This casuistic approach, however, can make it difficult to foresee what conduct the law expects from a citizen in a particular situation. Furthermore, as will also become apparent in the following discussion, the scope and content of duties to act is a permanent bone of contention in all penal systems, which can make it unclear for the citizens in certain situations what the law requires in order to avoid criminal liability.62 However, while these arguments might carry some weight with regard to duties of care directed to everyone, they are less convincing with regard to duties directed to people in a certain (social) position. Such people are expected by society, due to their expertise, education, etc., to know and adhere to the diligence standards expected and required by a certain position.63 See also: J. Vogel, ‘Norm und Pflicht bei den unechten Unterlassungsdelikten’ (Duncker & Humblot 1993), p. 23. 58 See for instance: R v Wacker EWCA Crim 1944, R v Willboughy EWCA Crim 3365 and R v Evans EWCA Crim 650. For a German decision in this context see: 17 July 2009, BGH NStZ 2009, 686, where it was established that a compliance officer had a duty to prevent fraudulent activities by the company. 59 D. Roef, ‘Strafrechtelijke Verantwoordelijkheid in de Risicomaatschappij’, in Vos and Calster (eds.), Risico en voorzorg in de rechtsmaatschappij (Intersentia 2004), p. 223. 60 See: Chapter III. 61 W. Wilson, ‘Central Issues in Criminal Theory’ (Hart Publishing 2002), p. 9; H.H. Jescheck and T. Weigend, ‘Lehrbuch des Strafrechts: Allgemeiner Teil’ (Duncker & Humblot 1996), pp. 608–609. 62 W. Wilson, ‘Central Issues in Criminal Theory’ (Hart Publishing 2002), p. 97. 63 D. Roef, ‘Strafrechtelijke Verantwoordelijkheid in de Risicomaatschappij’, in Vos and Calster (eds.), Risico en voorzorg in de rechtsmaatschappij (Intersentia 2004), pp. 222–225. Intersentia 137  Johannes Keiler 3.3.2. Commission by omission: a short comparative overview Before investigating the different duties of care a brief overview of the general approach adopted towards omission liability in England, the Netherlands and Germany will be provided first. 3.3.2.1. England English courts have traditionally approached omission liability restrictively. Thus English criminal law adheres to the general principle that individuals can be held criminally liable for their actions but not for their omissions.64 However, it is nowadays generally accepted that omissions can trigger criminal liability in circumstances where a general legal duty of care exists which outweighs the interests of individual autonomy. A manifestation of this restrictive approach is the fact that English courts have in relation to commission by omission adopted an interpretive approach, in the sense that they try to reconcile an omission with the terminology found in criminal provisions.65 Beyond that interpretive approach, English courts add the requirement of a special legal duty and capacity to act to the elements of the crime in question. In any case, due to the aforementioned interpretive approach adopted by the courts, some offences are regarded as non-susceptible of being fulfilled by omission because, as is argued, they specify a particular type of behaviour that is required.66 Conversely the inference of omission is regarded as unproblematic for offences that encompass an unspecific behavioural element. This approach can sometimes lead to a fuzzy outcome. Courts have for instance long accepted that murder and manslaughter can be committed by omission. On the other hand, it has been held that assault or battery cannot be perpetrated by omission. An assault, so the argument goes, requires an act; consequently, being entirely passive cannot constitute an assault.67 64 V. Tadros, ‘Criminal Responsibility’ (Oxford University Press 2005), p. 183. 65 M. Duttwiler, ‘Liability for omission in International Criminal Law’ International Criminal Law Review (2006), p. 30; A. Ashworth and J. Horder, ‘Principles of criminal law’ (Oxford University Press 2013), p. 99–100. 66 A.P. Simester, J. Spencer, G.R. Sullivan and G. Virgo, ‘Simester and Sullivan’s Criminal Law – Theory and Doctrine’ (Hart Publishing 2013), p. 74. 67 A.P. Simester, J. Spencer, G.R. Sullivan and G. Virgo, ‘Simester and Sullivan’s Criminal Law – Theory and Doctrine’ (Hart Publishing 2013), pp. 74–76. However, there is some dispute as to whether assault can be committed by omission. It seems that liability for an assault by omission can ensue from the doctrine of creation of a dangerous situation (Ingernez). See: D. Ormerod and K. Laird, ‘Smith and Hogan: Criminal Law’ (Oxford University Press 2015), pp. 75–77. See also: DPP v Santana Bermudez EWHC 2908 (Admin). 138 Intersentia  Chapter V. Commission versus Omission 3.3.2.2. The Netherlands In the Netherlands it is accepted that criminal liability can also arise from a failure to act. In order for liability for omission to arise, it is generally required that the person in question had a general duty of care for the underlying legally protected interest and the capacity to do so.68 The sources of these duties of care are, however, diverse and the scope of the duties is not always clearly established. Nevertheless, in the Netherlands, the concept of omissions is well-established and not the cause of much controversy. This can inter alia be explained by the flexible act requirement applied in the Netherlands. The shift towards a more social concept of criminal conduct has led to a better incorporation of omissions in the framework of criminal liability. Furthermore, the acknowledgment that human conduct often consists of an aggregate of actions and omissions has presumably contributed to the acceptance of criminal liability for omission in the Netherlands. 3.3.2.3. Germany To remedy some of the legality objections discussed above, and contrary to the Netherlands and England, the German legislator has enshrined the concept of improper crimes of omission in §13 GCC.69 The wording of §13 GCC makes it clear that just like in the Dutch and English legal system, criminal liability for an omission derives from a duty to act, which in Germany is, according to the prevalent view, subdivided again into the duty of care (Garantenstellung) and the scope of this duty (Garantenpflicht). As in all three countries these duties are brought into existence by way of judicial decision. To categorise the legal duties to act, German criminal law resorts to the notion of the guarantor (Garant). A person is generally regarded as a guarantor if he or she has a duty to safeguard any protected interests against dangers which are under his/her control (position of supervisor, Sicherungsgarant),70 or in cases where because of a duty of care (Obhutsverhältnis) (s)he is obliged to protect a legally protected interest against harm (position of protector, Obhutsgarant).71 68 J. Remmelink, ‘Inleiding tot de studie van het Nederlandse Strafrecht’ (Gouda Quint 1995), p. 166. 69 §13 GCC reads as follows: ‘(1) Whoever fails to prevent a result which is an element of a criminal offense is punishable under this law only if he was under a legal duty to prevent the result, and the omission is equivalent to the realisation of the statutory elements of the crime through action. (2) The punishment may be mitigated pursuant to §49 (1).’ 70 The category of supervision can again be subdivided into duties to control potential dangers posed by third parties or by things. 71 M. Duttwiler, ‘Liability for omission in International Criminal Law’ International Criminal Law Review (2006), pp. 35 et seq., J. Wessels, W. Beulke and H. Satzger, ‘Strafrecht Allgemeiner Teil, Die Straftat und ihr Aufbau’ (C.F. Müller Verlag 2014), p. 309. Intersentia 139  Johannes Keiler In other words the supervisor is held responsible for a particular source of potential danger, while the protector has a duty of care for a particular legally protected interest. This categorisation may help to better pigeon-hole certain scenarios conceptually but unfortunately offers little new insight into the uncertain scope and origins of individual duties.72 3.3.3. The different categories of duties of care It is now time to dwell on the different categories of duties of care. The duties to be found in England, Germany and the Netherlands are manifold and differ in terminology. Nevertheless they can, with regard to their content, be summarised in the following way. 3.3.3.1. Duties based on a special relationship to the victim There are a multitude of conceivable relationships which might give rise to a duty, ranging from family, domestic to business or economic relationships. These can be on a continuum representing the (moral) strength of an obligation to act, ranging from parent–children and matrimonial relationships to the (business) relationship between landlord and lodger. The roots of these duties can be diverse and, to some extent, reflect a society’s attitude towards particular, institutionalised relationships at a particular time. It is well-established that parents have a duty of care to protect their children73 from harm and the same applies with regard to spouses.74 Parents are under a duty to supply their children with adequate food and health care,75 and, furthermore, they owe a legal duty to rescue their children76 or are obliged to provide adequate medical aid.77 Moreover, the parental duty does cover 72 M. Bohlander, ‘Principles of German Criminal Law’ (Hart Publishing 2009), p. 41. 73 See for instance: Children and Young Person Act 1933, R v Handley Cox CC 79 cited in A.P. Simester, J. Spencer, G.R. Sullivan and G. Virgo, ‘Simester and Sullivan’s Criminal Law – Theory and Doctrine’ (Hart Publishing 2013), p. 69, R v Sheppard and Another AC 394, R v Gibbins and Proctor 13 Cr App R 134. 74 See: R v Hood EWCA Crim 2772; 24 July 2003 BGH NStZ 2004, 30. 75 See: Children and Young Persons Act 1933. In Germany the parent’s duty to care for their children is frequently derived from civil law. It is generally accepted that parents derive a duty to care for their children from several provisions of the civil code. Thus, parents generally owe a legal duty to rescue their children, or are obliged to provide adequate medical help. 76 R v Handley Cox CC 79 cited in A.P. Simester, J. Spencer, G.R. Sullivan and G. Virgo, ‘Simester and Sullivan’s Criminal Law – Theory and Doctrine’ (Hart Publishing 2013), p. 69. For Germany see: H.H. Jescheck and T. Weigend, ‘Lehrbuch des Strafrechts: Allgemeiner Teil’ (Duncker & Humblot 1996), p. 622. 77 R v Sheppard and Another AC 394. For Germany see: H.H. Jescheck and T. Weigend, ‘Lehrbuch des Strafrechts: Allgemeiner Teil’ (Duncker & Humblot 1996), p. 622 and 13 July 2007 BGH NStZ 2007, 402. 140 Intersentia  Chapter V. Commission versus Omission situations where one parent fails to prevent the abuse78 or death of the child by another.79 In a pertinent Dutch case for instance, a mother was convicted as being an accessory in the assault of her three-year-old daughter by the mother’s boyfriend. The court ruled that because the woman had not taken appropriate measures to prevent the boyfriend abusing the child, nor intervened to stop the abuse, she could be held liable. The court held that the mother had a duty to care for the life, safety, health and well-being of her child which would have obliged her to take measures to prevent the abuse by her boyfriend.80 As parents play a vital role in the socialisation process of their children, society accordingly has high expectations of parents to safeguard this process and to integrate the child as a valuable member of society. These high expectations have been forged into a strong duty of care, which arguably has its origins in the relationship of dependence prevalent between infant child and parent.81 A pertinent case regarding the parent’s duty to protect the life and well-being of their children can be found in the English case of Gibbins and Proctor. R v Walter Gibbins and Edith Rose Proctor (1919) 13 Cr App R 134 ‘Darling J.: The two appellants were indicted and tried together for the wilful murder of Nelly Gibbins, the daughter of Gibbins. The facts were that Gibbins’s wife had left him, and he was living in adultery with Proctor. There were several children, one of whom was the child of Proctor, in the house. He earned good wages, which he brought home and gave to Proctor to maintain the house and those in it. There is no evidence that there was not enough to keep them all in health. And all were looked after except one, namely Nelly, who was starved to death. Her organs were healthy, and there was no reason why she should have died if she had been supplied with food. She was kept upstairs apart from the others, and there was evidence that Proctor hated her and cursed her, from which the jury could infer that she had a very strong interest in her death. […] It has been said that there ought not to have been a finding of guilty of murder against Gibbins. The Court agrees that the evidence was less against Gibbins than Proctor, Gibbins gave her money, and as far as we can see it was sufficient to provide 78 See: R v Emery 14 Cr App R (S) 394. See also: 20 December 1983 BGH NStZ 1984, 164, where a mother was convicted as an accessory to the sexual abuse of her two daughters by their step father, as she had omitted to report the abuse to the police. 79 See: section 5 of the Domestic Violence, Crime and Victims Act 2004 as amended by the Domestic Violence, Crime and Victims (Amendment) Act 2012 imposes liability on members of the same household for failing to prevent abuse of a child or vulnerable adult by another. Compare also: Kühl, ‘Die strafrechtliche Garantenstellung – Eine Einführung mit Hinweisen zur Vertiefung’ JuS (2007), p. 501. 80 Hof ’s-Gravenhage, 9 August 1988, NJ 1988, 979. 81 A. Ashworth, ‘Criminalising Omissions’, in A. Ashworth (ed.), Positive Obligations in Criminal Law (Hart Publishing 2013), p. 46. Intersentia 141  Johannes Keiler for the wants of themselves and all the children. But he lived in the house and the child was his own, a little girl of seven, and he grossly neglected the child. He must have known what her condition was if he saw her, for she was little more than a skeleton. He is in this dilemma; if he did not see her the jury might well infer that he did not care if she died; if he did he must have known what was going on. […] It is unnecessary to say more than that there was evidence that Gibbins did desire that grievous bodily harm should be done to the child; he did not interfere in what was being done, and he comes within the definition which I have read, and is therefore guilty of murder. The case of Proctor is plainer. She had charge of the child. She was under no obligation to do so or to live with Gibbins, but she did so, and receiving money, as it is admitted she did, for the purpose of supplying food, her duty was to see that the child was properly fed and looked after, and to see that she had medical attention if necessary. […] [“]The prisoner was under a moral obligation to the deceased from which arose a legal duty towards her; that legal duty the prisoner has wilfully and deliberately left unperformed, with the consequence that there has been an acceleration of the death of the deceased owing to the non-performance of that legal duty.” Here Proctor took upon herself the moral obligation of looking after the children; she was de facto, though not de jure, the wife of Gibbins and had excluded the child’s own mother. She neglected the child undoubtedly, and the evidence shews that as a result the child died. So a verdict of manslaughter at least was inevitable. But it is necessary to go further and see whether it was murder. The evidence is that she had plenty of money; that she kept the child upstairs insufficiently supplied with food; that she hated the child and hit her. There is also evidence that when the child died of starvation both appellants took part in hiding the body and preventing the death from being known. […] The jury came to the conclusion that she had done more than wickedly neglect the child; she had deliberately withheld food from it, and therefore we come to the conclusion that there was evidence which justified the jury in returning a verdict against her, not merely of manslaughter, but of murder. The appeals are therefore dismissed.’ Spouses on the other hand in general owe a duty of care to each other in relation to dangers to life and limb.82 A husband who omits to call for medical assistance for his ill partner in due time, or fails to rescue her from an imminent danger, might thus incur criminal liability. A pertinent example can be found in the following Dutch decision. Court of First Instance Breda, 27 November 2006, ECLI:NL:RBBRE:2006:LJN AZ4427 ‘2. Indictment: […] The prosecution [further] claims that the defendant between 11 March 2006 and 12 March 2006 in Breda intentionally left his wife [the victim] to whom he owed a 82 See: R v Hood EWCA Crim 2772; 24 July 2003 BGH NStZ 2004, 30. 142 Intersentia  Chapter V. Commission versus Omission legal duty to support, care for and look after in a state of helplessness after she had fallen down the stairs of their common apartment. He violated his duty of care by failing to render aid and/or call for medical assistance by leaving the severely injured victim to her fate. His failure to act resulted in the death of the victim due to internal bleedings caused by a broken left arm, which she had sustained in the fall. […] 8.2. The Court considers the following with regard to the rendered evidence: The suspect in his testimony in court stated that on the 11th of March around 23.30 he discovered his wife lying unconsciously at the bottom of the stairs in his apartment. He immediately assumed that his wife had fallen down the stairs. After shaking (to awake) her as well as undressing her he poured some water over her. When his wife showed no reaction to his “treatment” he went back to bed. [Forensic evidence had estimated the time of death between 23.30 and 02.00h.] On the suspect, especially due to his knowledge of the generally frail health of his wife, rested a duty to take reasonable steps to provide or procure medical help for his partner. The suspect has neglected this duty of care completely. […] By leaving his wife in this utter state of helplessness the suspect has considerably increased the risk of death. This increase in the likelihood of death makes it possible to reasonably attribute the death of the victim to the suspect. 9. The aforementioned leads to the following conclusion: The suspect has violated Article 257 DCC (and is accordingly sentenced to a prison sentence of three years).’ Finally, other relationships can also give rise to a duty of care. A pertinent example can be found in scenarios where people jointly engage in a dangerous enterprise. In these cases the situation or activity itself often presupposes or even requires that the participants look out for each other. One can for instance think here of mountaineers, divers, people going on a joint wild water or canyoning trip or an expedition to the jungle, etc. 3.3.3.2. Undertaken duties Under this category cases can be subsumed, where a person has voluntary assumed a responsibility or has undertaken a duty, but not fulfilled his ‘obligation’ which led to the occurrence of harm. One important decision in this context in English law is the case of R v Stone and Dobinson. In this case Mr Stone and his mistress Ms Dobinson, both elderly and not very competent, allowed the sister of Mr Stone (the victim) to live with them and gave her the use of a room. The victim was eccentric, suffered from anorexia nervosa and neglected herself. She avoided any contact with the other members of the household and spent days at a time confined to her room. She soon became immobilised and helplessly infirm. Both the man and the mistress were aware of the sister’s deteriorating condition but failed to take any effective steps to summon help. The victim was Intersentia 143  Johannes Keiler eventually found dead in her bed from toxaemia caused by infected bed sores and prolonged immobilisation. The Court of Appeal upheld the conviction of Mr Stone and Ms Dobinson for reckless manslaughter by omission as they were found to have breached their duty of care towards the victim.83 In any case, one can however also think here of cases where the suspect has entered into a contract and a breach of this contract has caused harm to the victim.84 In some penal systems, a contract per se may function as a basis for a duty to act. This duty may also encompass third parties. Often cited here is the case of a railway gate-keeper who failed to close the gate and a cart that subsequently passed through was struck by a train.85 Thus, a contract is deemed a sufficient basis for a duty, regardless of to whom the contractual obligation is owed.86 In other penal systems, however, a contract in itself is not sufficiently strong to ground a duty to act. Only once responsibility has factually been assumed can criminal liability be imposed.87 Yet, in the absence of a contract, factual assumption of responsibility can also be sufficient.88 Such a factual assumption of responsibility could also occur in the form of a transfer of a duty from another person.89 A pertinent example for such duty situations can be found in the following German decision. In this case workers forgot to remove a steel claw from the railway tracks of the suspension railway in Wuppertal after having finished their regular maintenance work, which caused the derailing of the train. The accident caused the death of five passengers and left forty severely injured. The maintenance work on the railway took place during the night shift and teams of two workers were responsible for the maintenance work on designated sections of the track. The defendants A and B worked together on such a section. As time was scarce, the site manager ordered two other workers C and D to support A and B. They agreed to split the workload, two workers working on the left hand side and the other two working on the right hand side of the track. A and B removed the steel claw on their side of the track and mistakenly presumed that 83 R v Stone and Dobinson QB 354. 84 A. Ashworth, ‘The scope of criminal liability for omissions’ The Law Quarterly Review (1989), p. 443. 85 R v Pittwood 19 TLR 37. H.D. Wolswijk, ‘Strafbaar nalaten: een zorgplicht minder’, in Harteveld, et al. (eds.), Systeem in Ontwikkeling. Liber amicorum G. Knigge (Wolf Legal Publisher 2005), p. 550. 86 A. Ashworth, ‘The scope of criminal liability for omissions’ The Law Quarterly Review (1989), p. 444. 87 M. Duttwiler, ‘Liability for omission in International Criminal Law’ International Criminal Law Review (2006), p. 36. See also: 31 January 2002 BGH NStZ 2002, 421 at para 20 and 8 November 2000 BGH NJW 2001, 453, where the BGH held that in addition to a contractual relationship a strong relationship of mutual trust needs to be established for a duty of care to arise. 88 M. Bohlander, ‘Principles of German Criminal Law’ (Hart Publishing 2009), p. 43. 89 See the German case: 31 January 2002 BGH NStZ 2002, 421. 144 Intersentia  Chapter V. Commission versus Omission C and D would do the same on their side. Regarding the workers’ duty of care the German Supreme Court held the following: German Supreme Court, 31 January 2002, NJW 2002, 1887 ‘Their [i.e. the workers] duty of care was based on the factual assumption of responsibility by accepting the orders of their manager. The task at hand concerned the specific removal of an obvious and grave source of danger for the operation of the railway. The factual assumption of responsibility therefore grounds a duty of care for the safety of the railway passengers. […] Decisive for the establishment of a duty of care is therefore only the factual assumption of responsibility rather than the duties flowing from their employment contract. […] Furthermore, the fact that C and D assisted A and B in their work cannot lead to a cessation of A and B’s position as a protector. It can however modify the scope of the duty of care. […] However, given the high degree of risk involved for the train operation the defendants A and B would have at least been obliged to ascertain that C and D had effectively removed the claw.’ [Accordingly, the three supervisors in charge of the maintenance work were convicted of negligent homicide for their failure to carry out the necessary checks, while the four workers were convicted of negligent homicide by nonfeasance – JK.] 3.3.3.3. Duties based on specific qualities of the offender Many people, whether in the workplace or elsewhere, are subject to particular duties flowing from their social role/position.90 Many of these duties will arise in relation to civil servants, who because of their social role are not only bestowed with certain powers but are also under a duty to fulfil their function diligently and properly. Consider for instance a policeman who lets a thief escape because he is a friend. The omission to arrest the thief constitutes a violation of the respective duty of care.91 Furthermore, a particular occupation which can also be categorised as the voluntary undertaking of a duty can form the basis of a duty.92 For instance, different duties might apply to police officers, building contractors, foremen, managers or doctors. The standard of care required by this class of persons is usually considerably high. Taking into account their training and skill, they are deemed to react swiftly and diligently to prevent the occurrence of harm. Professional standards by which the conduct in question will be evaluated can 90 See for instance: 17 July 2009 BGH NStZ 2009, 686, 19 April 2000 BGH NStZ 2001, 188. 91 M. Bohlander, ‘Principles of German Criminal Law’ (Hart Publishing 2009), p. 44. 92 See: 17 July 2009 BGH NStZ 2009, 686. Intersentia 145  Johannes Keiler therefore be of considerable importance. This becomes particularly evident with regard to patient–doctor relationships. This was outlined in the English case of R v Adomako, where an anaesthetist during an eye surgery failed to detect the disconnection of a tube from the ventilator which caused the death of the patient.93 It was held that ‘if a person holds himself out as possessing special skill and knowledge and he is consulted as possessing such skill and knowledge, […] he owes a duty to the patient to use due caution in undertaking the treatment.’94 Such a standard of care seems to be applied to professional relationships in all penal systems. The conduct in question is thus to be judged by the standard of a reasonable competent person from the same profession. A good example of the difference in the standard of care required by professionals and other, less trained people can be found in the Dutch Jomanda cases. In 1999, the Dutch actress and comedian Sylvia Millecam was diagnosed with breast cancer. Although she visited several regular doctors, she chose to forego regular treatment and consulted physicians who were trained conventional doctors but also used alternative therapies. She also sought counsel from several paranormal and alternative healers, including the Dutch medium Jomanda. Her condition steadily worsened and she died two years after the initial diagnosis. Jomanda and two doctors who had, amongst others, used alternative treatment on the actress were prosecuted for her death. The court in Amsterdam convicted the two physicians for the death of the actress, as they had violated their duty of care. The court argued that they had not applied the diligence which was reasonably expected by a doctor, by inter alia not properly informing her about the possibilities and limits of the alternative treatment used and had not insisted that the actress continued conventional treatment.95 The alternative healer, Jomanda, was however acquitted by the court. Although the court thought that Jomanda had violated a duty of care by corroborating the actress’s belief that she was not suffering from cancer, this 93 R v Adomako 1 AC 171. 94 See also the Dutch case: HR 14 June 2005, ECLI:NL:HR:2005:AT1801 where a macrobiotic nutritionist was held responsible for the death of one of his patients who despite suffering from uterine cancer he had not advised to consult conventional medical assistance but had continued macrobiotic treatment. It was held that a duty of care rested on the nutritionist, which, according to the court, entailed that he should have shown less averseness to conventional medicine and had provided the victim with more information regarding the possibilities and impossibilities of macrobiotics, especially since he was aware of the fact that no scientific evidence existed that macrobiotics could encapsulate, let alone cure cancer. 95 Rb. Amsterdam 12 June 2009, ECLI:NL:HR:RBAMS:2009:BI7370. 146 Intersentia  Chapter V. Commission versus Omission violation was not the cause of the medical malpractice.96 The prosecution appealed but the Dutch Supreme Court upheld the acquittal: Dutch Supreme Court, 12 March 2013, NJ 2013, 424 ‘2.3. According to the considerations outlined under 2.2.2. above, the Court of Appeal has established that the suspect in her role as a “healing medium” indeed performed health/medical care services for S. Millecam [the victim] and that the relationship between the two was based on medical treatment, but that the suspect did not carry out a profession for which a registration pursuant to the Health Care Professions Act was required. […] 2.5 It is apparent from the judgment of the Court of Appeal that it was not convinced that the nature or content of the advice and support nor the manner in which they were rendered were in itself sufficient to negatively affect Millecam’s health and/or made the care provided by medical professionals futile. This statement should be understood to mean that the advices and support rendered were not aimed to dissuade Millecam from seeking conventional medical assistance and that they in fact did not prevent her from seeing other medical professionals. For this reason it cannot be stated that the advice and support provided by the suspect unnecessarily harmed the victim’s health and neither did she violate her obligations under civil law (Art 7:453 DCC). This verdict is based on (i) the fact that the suspect in her advice and support also made it clear that (in addition) conventional medical professionals ought to be consulted (an advice which Millecam followed) which makes it, leaving exceptional circumstances aside, unlikely that she grossly violated her duty of care. This can also be seen as a strong indication that the suspect did not accept the considerable chance to harm the victim’s health and that (ii) the defendant’s conduct did not significantly increase the risk of harm (as alleged in the indictment) so that the death of the victim cannot be reasonably attributed to here. This judgment (of the Court of Appeal) is in our view not incomprehensible. 2.6. Therefore the appeal is dismissed.’ An intriguing question is how the court would have decided here if only the medium Jomanda had been involved in the chain of events. The doctors’ strong social position now leads to a break in the chain of causation, but would that be different if only Jomanda was involved after the initial diagnosis? In that case, the conviction of the medium arguably seems more likely. 96 Rb. Amsterdam 12 June 2009, ECLI:NL:RBAMS:2009:BI7445. Intersentia 147  Johannes Keiler In conclusion it can be stated that duties based on specific qualities of the offender are strongly connected to his social role, education and skills, as well as to certain professional standards. A particular position or social role can thus give rise to a duty of care. The stringent amount of diligence required by these persons is warranted, given their special education and training, as well as the high amount of risk, mostly involved in the activities to be carried out by this category of persons. 3.3.3.4. Duties based on ownership of or responsibility for a source of danger With regard to this subcategory the question arises as to whether a property owner, i.e. the owner of a car, house, etc., should have a corresponding duty to his property rights to prevent harm caused by his property. The paradigms of this subcategory can be found in the well-established duties of pet and car owners and of dangerous enterprises.97 Leaving paradigmatic cases aside, one possible route is to convict the property owner as an accomplice to the crime committed by the perpetrator in his presence or on his property.98 Criminal liability is imposed when a person had a right to control the actions of another and (s)he deliberately refrains from exercising it. In these circumstances, inactivity may be regarded as encouragement to another to perform an illegal act, and therefore as aiding and abetting.99 The exact scope of this principle is, however, far from clear. Does the concept expand to all property owners, or is it confined to certain dangerous activities like driving a car?100 Arguably, the responsibility for a source of danger can lead to the emergence of a duty of care. A home owner, occupant or landlord can thus be under a duty of care if due to particular circumstances protected legal interests are endangered in the spatial sphere of the lodging. This would give rise to a duty of care for an occupant to prevent the impairment of legally protected interests if special circumstances, such as a special personal relationship to the victim or the perpetrator, for instance, would require an intervention. An example of a duty arising out of responsibility for a source of danger can be found in the following German case concerning the liability of a caretaker of a school and a county construction supervisor for causing bodily harm by negligence. The school building in question had a flat roof which was accessible at ground level from one side of the building. The other side of the roof was equipped with an iron grating which had been installed forty years ago. The construction was structurally 97 27 July 1962 BGH NJW 1962, 2069, HR 17 March 1987, NJ 1987, 771, Dangerous Dog Act 1991. 98 A. Ashworth, ‘The scope of criminal liability for omissions’ The Law Quarterly Review (1989), p. 446. 99 D. Ormerod and K. Laird, ‘Smith and Hogan: Criminal Law’ (Oxford University Press 2015), p. 220. 100 See for instance: H. Otto, ‘Grundkurs Strafrecht: Allgemeine Strafrechtslehre’ (De Gruyter Recht 2004), p. 180 and 7 August 1981 OLG Stuttgart NJW 1981, 2369. 148 Intersentia  Chapter V. Commission versus Omission unsafe and its fastening was severely corroded. Three adolescents had climbed on the roof and leaned on the iron grating. The construction gave way and all three fell off the roof (3.5 m), resulting in considerable bodily injuries. The Court of First Instance had found that the two defendants had no case to answer but the Regional Court of Appeal quashed the decision and ordered a retrial, holding the following: Regional Court Saarbrücken, 24 October 2005, NStZ-RR 2006, 75 ‘The reproach in this case is not linked to any positive action but rather to an omission pursuant to §13 GPC, namely a failure to regularly check the condition of the iron grating. […] For omission liability to arise it is necessary to establish whether the defendants were under a legal duty of care. […] Defendant J: As the caretaker of the school he, according to his own statement, was responsible for the maintenance of the building and obliged to remove any potential sources of danger. He thus had a legal duty to maintain safety. This duty also applies in the case at hand, despite the fact that the victims had accessed the roof unauthorized. […] He therefore had a duty to protect third parties, particularly pupils from any construction hazards. He has violated this duty by failing to sufficiently and regularly check the condition of the iron grating. This is even more so considering the considerable danger (for life and limb) created by the altitude difference of 3.5 meters. […] Furthermore, the poor condition of the grating could have been easily detected had regular checks taken place. Given this easy recognizability, it can be concluded that the defendant has breached the duty of care incumbent on him. Defendant N: The defendant functioned as the county construction supervisor. […] In his function he had a duty to maintain the safety of all the buildings falling within his sphere of responsibility. The fact that he had delegated this task for the school to the defendant J does not relive him of his duty pursuant to §13 GCC. […] According to the evidence presented to us there persists sufficient suspicion that the defendant has violated the duty of care incumbent on him by failing to exercise control concerning the maintenance of the iron grating. […] The consequences of their duty violations were foreseeable for both defendants. That lack of control and supervision concerning the maintenance of a 40-year-old grating, which was in addition structurally unsafe, could lead to a failure to detect edificial deficiencies and that this in turn might create a danger for life and limb of others also accords to general (life) experience. Considering all the above we find that there is sufficient suspicion for the defendants to have a case to answer and order the commencement of trial.’ Intersentia 149  Johannes Keiler 3.3.3.5. Duties based on the creation of a dangerous situation This source of duties to act is probably the best established source in all three of the countries investigated. It seems to be a generally accepted principle of law that one is under a duty to prevent harm caused by prior conduct which created a source of risk or danger. Presumably, a duty based on the creation of a dangerous situation flows from the general prohibition to cause harm to others (neminem laede). Who creates a risk of harm to another is under a duty to prevent the manifestation or at least minimise the effects of that harm. A pertinent example in this respect can be found in the English landmark decision of R v Miller. Regina Respondent v Miller Appellant, House of Lords 2 AC 161 ‘The defendant, a vagrant, went to live in an unoccupied house. After returning there one night he lit a cigarette and lay down on a mattress in the room he was using. He fell asleep before he had finished the cigarette, and it dropped onto the mattress, setting it alight. He awoke later when the mattress was smouldering, but did nothing to extinguish it, and merely moved to another room. The house caught fire and damage to the value of £800 was caused. The defendant was charged with arson, contrary to section 1 (1) and (3) of the Criminal Damage Act 1971. On his appeal against conviction, the Court of Appeal dismissed the appeal and certified the following question of law: “Whether the actus reus of the offence of arson is present when a defendant accidentally starts a fire and thereafter, intending to destroy or damage property belonging to another or being reckless as to whether any such property will be destroyed or damaged, fails to take any steps to extinguish the fire or prevent damage to such property by that fire?” […] Their Lordships took time for consideration. March 17. LORD DIPLOCK. […] Let me take first the case of the person who has thrown away a lighted cigarette expecting it to go out harmlessly, but later becomes aware that, although he did not intend it to do so, it has, in the event, caused some inflammable material to smoulder and that unless the smouldering is extinguished promptly, an act that the person who dropped the cigarette could perform without danger to himself or difficulty, the inflammable material will be likely to burst into flames and damage some other person’s property. The person who dropped the cigarette deliberately refrains from doing anything to extinguish the smouldering. His reason for so refraining is that he intends that the risk which his own act had originally created, though it was only subsequently that he became aware of this, should fructify in actual damage to that other person’s property; and what he so intends, in fact occurs. There can be no sensible reason why he should not be guilty of arson. If he would be guilty of arson, having appreciated the risk of damage at the very moment of dropping the lighted cigarette, it would be quite irrational that he should not be guilty if he first appreciated the risk at some later point in time but when it was still possible for him to take steps to prevent or minimise the damage. […] 150 Intersentia  Chapter V. Commission versus Omission While in the general run of cases of destruction or damage to property belonging to another by fire (or other means) where the prosecution relies upon the recklessness of the accused, the direction recommended by this House in Reg. v. Caldwell A.C. 341 is appropriate, in the exceptional case, (which is most likely to be one of arson and of which the instant appeal affords a striking example) where the accused is initially unaware that he has done an act that in fact sets in train events which, by the time the accused becomes aware of them, would make it obvious to anyone who troubled to give his mind to them that they present a risk that property belonging to another would be damaged, a suitable direction to the jury would be: that the accused is guilty of the offence under section 1 (1) of the Criminal Damage Act 1971 if, when he does become awa