Certain Omissions Regarded As Criminal Conduct In Scotland Law Essay

Certain Omissions Regarded As Criminal Conduct In Scotland Law EssayThere are certain restricted mint in Scots Law that an omission is regarded as iniquitous conduct. The key question to look at is do we have a positive art to act? In Scots Common law there is no legal obligation if one individual finds another in peril to interfere and assist. However in some circumstances a event will arise were failure to intervene will result in criminal indebtedness3. So it is not what the accused did it is what they did not do. The situations were such intervention is legally required fall into three categories that have to be examined closely with instigateicular eccentric to specific crucial cases. In addition looking at the significance of the actus reus and the mens rea in relation to appropriate cases. The actus reus has no official definition but it is the personal element of a crime, which includes conduct, omission or situation. The mens rea accompanied by the actus reus would result in criminal indebtedness.4To illustrate both in terms of omission I have highlighted specific cases that explain the significance of bothThe first circumstances that a failure to act can give rise to criminal liability is where a dangerous situation has been created by the accused or where the prior actions of the accused has created danger5This type of omission generally follows a positive act, this may be criminal or not. In HM Advocate v McPhee (1935) the accused was charged with murder. McPhee had carried out a violent serious assault on a woman, beating her, repeatedly kicking her, knocking her down and left her unconscious in an open field.6Lord Mackay upheld the murder confidence on the yard that it could be asserted that the accused wickedly and feloniously exposed the woman regardless of consequences to the inclemency of the weather, and if she died in consequence both of the beating and exposure7This case gear up the accused guilty of culpable homicide. In cases similar to McPhees an omission will not arise if it can be proven that the accused initial criminal actions caused the victims death. However because McPhees assault on the woman had weakened her he had a debt instrument to remove her from that situation or aid her in the particular situation which the he had all ready created8An important case to highlight under this section is MacPhail v Clark (1983). This situation is a junior-grade more complicated as the actions of the accused are not criminal but instead his actions were negligent and reckless. However the actions that caused this situation may be regarded as criminal if they cause violate and in this case endanger lives.9The husbandman in this case had set a fire to burn straw in a field that was windward from a dual carriage way. The fire had spread causing the smoke to carry onto the road causing bad visibility. This resulted in two vehicles colliding causing injury.10The farmer was convicted of recklessly endangering the lieges.11It was highlighted that the farmer did nothing wrong in setting the fire in the field, it was the failure to ensure that the fire was safe and would not spread. Reports found that the fire of the straw continued for at least twenty minutes and the farmer continued to plough right up until the arrival of the emergency services.12The Farmer had do nothing to stop the fire spreading and continued to allow it to spread onto the road without taking any action to stop the dangerous situation that he had created.The second circumstances that can give rise to criminal liability are where the accused status or contractual obligation results in a duty to act.13This status or contractual obligation is when a person in a public office or position or responsibility has a duty to prevent the occurrence of harm, fails to do so.14This means that an looker-on is under a position and duties were they have a responsibility to prevent the offence. If the onlooker fails to do this it may result in criminal liability.15Bonar and Hogg v McLeod (1983) highlights a failure to prevent an offence. Mr Bonar was an older and more experienced senior policeman who by being present at the scene of the crime and failure to intervene conduct to art and part guilt.16Hogg the officer who assaulted the prisoner, grabbed him by the pharynx and pushed his arm up his back, then quick marched him down the corridor. The excessiveness of the force was unnecessary as the prisoner was neither resisting nor struggling with the officer.17During this offence Bonar did not tho stand back and allow this to happen but was an active participant in the quick march down the corridor.18Bonar was regarded as art in part credible for the assault upon the prisoner.19The third and final situation that intervention is legally required is where a prior relationship between the accused and the victim which is such that there is a legal obligation to act.20An example of a special relationship would be a mother and child. In Bone v HM Advocate the mother was charged with culpable homicide of her daughter by witnessing and countenancing criminal conduct.21The allegations made against Bone were that she wilfully failed to protect her child and also to ensure that her public assistance was intact or seek medical attention for her injuries. However Bones appealed the conviction and the appeal went in her favour and was quashed22. This was on the basis that the trial assay misdirected the jury by failing to give significant directions of the question of the assessment of whether the appellant had failed to take the reasonable steps to protect her child and ensure her wellbeing.23 delinquent to this it was found that there was a miscarriage of justice and allowed the appeal against the conviction.Another case of relevance is to look at the relationship between a pay back and a patient. In this particular English case Adamako in 1993 was an anaesthetists in an eye operation were the t ube from the ventilator had been detached. Adamako did not notice this for roughly sextuplet minutes when the patient went into cardiac arrest.24During the trial Adamako was charged with manslaughter by gross negligence, where the accused breached a duty of care towards the patient that resulted in death.25Adamako appealed to the House of Lords were the conviction was upheld. Lord Mackay stated that gross negligence depends on the seriousness of the breach of the duty committed by defendant in all circumstances in which he was placed when it occurs and whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all circumstances as to amount in the jurys judgement to a criminal act or omission.26For an involuntary manslaughter by breach of duty to be proved firstly there has to be evidence of the existence duty which was apparent in this case anaesthetists and patient. Secondly, a breach of duty resulting in death. This again occurred when the accused failed to see the detachment of the ventilator which led to cardiac arrest. Finally the jury must consider the gross negligence as justified for a criminal conviction.27In HM Advocate v McPhee a case mentioned earlier it is important to consider the significance of actus reus and mens rea. McPhee omits to the assault on the woman so therefore this can constitute to the actus reas of the crime. McPhee had severely overcome the woman and therefore weakening her putting her in a dangerous situation which lend to her death.28Paterson v Lees is a case of relevance that highlights the significance of the mens rea utilise in a case of omission. Paterson was charged with inter alia, conducting himself in a unblushingly indecent manner. Paterson was babysitting his neighbours children a 9 year old little girl and an 11 year old boy. The original statement made was that the appellant did conduct himself is a shamelessly indecent manner towards the female grumbler aged 9 and the m ale complainer aged 11 and did show them a film of an obscene and indecent nature which depicted acts of human sexual intercourse.29What was illustrated in the case was that the appellant had allowed the children to continue watching the video he omitted to stop the children viewing the video. The Appeal Court was unanimous in the decision that the charge of shameless indecency could not be committed in this way. The issue here was that it was not a crime to permit children to view indecent material.30In parking lot law shamelessly indecent conduct is an offence therefore it involves the element of mens rea. Therefore it must be proved that Paterson has the appropriate mens rea in this case it would be an intention to commit the offence this would involve switching on the material either intending to corrupt or deprave or knowledge that the material is liable to corrupt or deprave.31Due to this element of mens rea Patersons appeal was allowed.To conclude, the failure to act in so me circumstances can under Scots law lead to criminal liability. When looking at omissions it is important to establish the requirements that lead to an omission and the elements of actus reus and mens rea. They all play vital roles in illustrating the complexity of being liable in certain circumstances and the wide variety of cases that involve omissions.