A clear distinction is seen in the definitions of an act and omission. When the actus reus, and mens rea of a crime exists – an act is an action that have caused harm to a person, or damage to property, while an omission is where an action that could have reduced or prevented the harm or damage is not taken when the person in under a duty.
However, the judges faces difficulty in distinction when (1) the actus reus of a crime does not admit an omission to form the basis of satisfying its criteria (2) the statute law does not express when a person has an obligation to act and how an omission could amount to crime. In such cases, judges have attempted to circumvent these hurdles by disguising an omission as an act to criminalize the defendants.
In Fagan v Metropolitan Police Commissioner , Fagan’s act of accidentally driving onto a policeman’s foot, and his refusal to remove the car was seen as one continuous act. This decision circumvented the issue of necessitating the mens rea and actus reus of battery to coincide; however, it led to the blurring of the distinction.
Similarly, in the case of R v Miller , the Court of Appeal held that Miller’s accidental falling asleep with a lit cigarette and his movement to the next room was one continuous reckless act. However, in the House of Lords, Lord Diplock applied the theory of duty. A duty had arisen as he saw Miller creating a situation that endangered others and it was reasonably foreseeable that it would lead to damage of property. His consequent omission to put out the fire was said to amount to the actus reus of arson. As such, a distinction could have been drawn in Fagan if his act of driving the car onto the victim was perceived to have led to a duty, and his following omission could have been seen to form the basis of an actus reus of battery.
Distinctions could be clearly drawn if there were reforms in the statutes for the actus reus of certain crimes to (1) admit omissions and (2) identify when a duty of care should arise, and how an omission could satisfy its criteria. One case showing the possibility of suggesting such reforms would be DPP v Santana-Bermudez , where D was held to have committed battery when his failure to reveal his sharps (an omission) led to an injury sustained by a police office; it was held that “where someone creates a danger and thereby exposed another to a reasonably foreseeable risk of injury which materializes, there is an evidential basis for the actus reus of an assault occasioning actual bodily harm.”
Alternatively, an act has also been seen as an omission in order to avoid criminal liability. In the case of Airedale N.H.S. Trust v Bland , the doctor’s decision to halt treatment was seen as an omission and it could not amount to murder, as he was no longer under a duty.However, it can be said that most people would see the removal of life support as a positive act. It can be suggested that reforms provide a special provision to prevent criminal liability in specific cases whereby an act discontinues life support. It should only amount to criminal liability if the doctor had a duty to care for the patient: this can avoid acts in similar cases being seen as omissions.
Another case that judges faced a difficulty with a distinction was in R v. Speck . The court held that an act of gross indecency was committed when D did not do anything to move a child’s hand when she placed it over his genital area. To achieve a distinction in this case, and to avoid confusion from a layman’s point of view, D’s inaction should have been seen as an omission. Speck, being in a position that could have prevented the sexual indecency should have...