English law has been subject to being described as unprincipled and inconsistent in its approach to the question of whether the failure to act is a sufficient basis for criminal liability. This is due to a range of factors an example of which being the collection of convictions passed to defendants who have been charged with a crime, which did not involve a positive or direct action. In addition for those who have not been convicted, it is questionable whether the law is unprincipled as it is unclear about the moral obligation that individuals have to act and when a moral obligation is a legal obligation. There is also uncertainty regarding what is a sufficient basis for criminal liability as each case is different and it is difficult to measure just what type and how much of an omission is sufficient to warrant liability.
In the case of R v Miller, the defendant was charged with arson on the basis that he did nothing to extinguish the fire being caused by the cigarette that he had lit. The defendant himself is quoted as having said “I just left it”1 implying blatant carelessness in his conduct. This solidifies the fact that his direct actions were the cause of the fire, which would support the prosecutors approach to building the case based on this failure to act. However, the decision to apply case law and create a case on the basis of omission is questionable. Alternatively, the prosecutors could have opted for an alternative and less ambiguous route of recklessness and negligence. By doing so, they could argue based on a positive action, which was him recklessly lighting a cigarette indoors rather than his failure to act. That way, he is being prosecuted for actually doing something rather than not.
In addition to this approach to the question of whether the failure to act is a sufficient basis for criminal liability is questionable in this circumstance as it is said that the defendant as prosecuted on the basis of one of the five duty situations...
Bibliography: R v Miller  2 AC 161
J.Loveless, Criminal law:text, cases and materials (4th, Oxford University Press , e.g. Oxford 2014
R v Miller  2 AC 161
W.Wilson, Criminal Law: Doctrine and Theory (3rd, Pearson Education Limited , Essex, England 2008) 75
Ashworth, Positive Obligations in Criminal Law (1st, Hart, North America 2013) 40
Stovin v Wise  3 W.L.R. 388 (HL)
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