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The omissions of individuals are generally not criminalised in English criminal law, subject to situations of special duty, contractual duty, and the creation of dangerous situations. Whilst other jurisdictions have adopted general statutory duties to rescue,〔For example, the French Penal Code sets out a duty to rescue where there is no risk to an individual, in Section 63.〕 it is not recognised in English law that an individual has any duty to assist strangers in situations of peril. Proponents of the current legal position regard it as wrong for the criminal law to punish individuals for committing no physical act, which it is argued would be an infringement on human autonomy.〔Ashworth, p. 427〕 Academics arguing for reform argue that a social responsibility to assist others should exist, particularly where there would be no danger to the rescuer.〔Ashworth, p. 428〕 Liability for omissions has long existed where a pre-existing duty can be established between two parties. For example, where an individual accidentally creates a small fire in a flat, he is under a duty to take reasonable steps to extinguish it, or to summon help.〔As demonstrated in the case of ''R v Miller'' () 2 WLR 539.〕 A special duty also exists between parents and their children, and an omission of a parent to save their young child from drowning would result in criminal liability, as it is deemed a parent voluntarily undertakes to ensure the wellbeing of their child.〔Mead, p. 164〕 Other duties may be inferred from contractual obligations, and so an individual employed to ensure individuals do not cross a railway line while there are trains running would be found criminally negligent where he abandoned his post.〔''R v Pittwood''〕 History of omissions The courts were initially reluctant to impose liability for omissions, as demonstrated by the early case of ''R v Smith'',〔''R v Smith'' (1869) 11 Cox CC 210〕 decided in 1869. The facts were that a watchman employed by a railway company took a break from his duties, and in this time a man was killed by an oncoming train. Lush LJ held that whilst an omission could constitute an act of murder, because there was no statutory duty for the railway to provide a watchman, there could not be any criminal liability.〔Smith, p. 90〕 However, thirty years later, in the case of ''R v Pittwood'',〔''R v Pittwood'' (1902) 19 TLR 37〕 the court adopted a different stance to a case of similar facts. In this case, a gatekeeper for a railway service in Somerset negligently forgot to close a gate – allowing access by cars to a railway line – whilst going to lunch. It was held that despite the fact he was privately employed, he had materially contributed to the following accident, by opening the gate and then failing to close it.〔 The reasoning used by the courts in this case however can be seen as problematic in establishing liability for omissions. Wright LJ's position was that the watchman's misfeasance in itself contributed to the accident, which would suggest that it was his opening of the gate which was criminalised, rather than his failure to shut it.〔Smith, p. 91〕 It has been submitted by John Smith that this decision implies the result would have been different if the watchman had come on duty to find an open gate, and had subsequently not shut it, an outcome which Smith describes as "morally offensive".〔 In any case, the decision shows the general reluctance of English courts to outright state that an omission may be criminal, and it has been said that such attempts to distinguish between acts and omissions are at least unhelpful, and possibly dangerous.〔 A modern recognition by the House of Lords that a failure to act can result in criminal liability can be found in ''R v Miller''.〔''R v Miller'' () 2 WLR 539〕 In this case a squatter occupying a house fell asleep whilst smoking a cigarette, resulting in a small fire starting on his mattress. Rather than putting out the fire, he removed into an adjacent room, and fell asleep, resulting in the house catching fire. The defendant was charged arson, under the Criminal Damage Act 1971. In dismissing his appeal that a failure to act could not generally result in criminal liability, Lord Diplock stated that: I see no rational ground for excluding from conduct capable of giving rise to criminal liability, conduct which consists of failing to take measures that lie within one's power to counteract a danger that one has oneself created, if at the time of such conduct one's state of mind is such as constitutes a necessary ingredient of the offence.〔() 2 WLR 539, at 176〕 It is suggested that the principles set out in ''R v Miller'' are likely applicable to any instance where an individual, in negligently creating a risk, fails to take steps that any reasonable individual would to avert risk to others.〔Ashworth, p. 439〕 Whilst no general duty would exist for an uninvolved individual to try to stem a fire, or to call the fire brigade, it is the causal link between an individual's actions in creating a risk which result in a duty arising to prevent others from harm.〔Ashworth, p. 440〕 ==Situations creating a duty to act== Various situations exist in which the courts will impose a duty to act, generally resulting from a pre-existing relationship or contractual duty. Despite the reluctance of English criminal law to impose liability for omissions, there also exist a number of statutes which create criminal offences for a failure to undertake a certain act, as well as others which have been interpreted to impose liability for a failure to act.〔Ormerod, p. 78〕 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Omissions in English criminal law」の詳細全文を読む スポンサード リンク
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