The law of omission liability - Free Essay Example

Sample details Pages: 5 Words: 1580 Downloads: 2 Date added: 2017/06/26 Category Law Essay Type Critical essay Tags: Act Essay Criminal Law Essay Did you like this example? Critically evaluate whether the law in respect of omissions liability is in need of reform. Given that one may be liable for an offence as serious as murder by omission it is paramount that that liability is clearly defined. Chapter 1 Introduction to Omission Offences capable of being committed by omission Introduction to Murder Introduction Traditionally criminal responsibility is based on what the defendant has done and also on state of mind when he did; this approach is summed up by Latin maxim. à ¢Ã¢â€š ¬Ã…“Actus non facit reum nisi mens sit reaà ¢Ã¢â€š ¬Ã‚  Which means à ¢Ã¢â€š ¬Ã…“No act can make a person guilty without prohibited state of mindà ¢Ã¢â€š ¬Ã‚ ? For the purpose of analysing a crime, it may be stated that a crime can be divided into two parts called elements. Firstly Actus Reus which is the outward conduct which must be proved against the accused and secondly Mens rea which is the state of mind the accused must be proved to have to have at the time of the conduct. Actus Reus is not just the commission of an offence but can also be an omission to act or a state of affairs. Thus inevitably, criminal conduct usually takes the form of some act. However, where appropriate, liability may be based on an omission to act. à ¢Ã¢â€š ¬Ã…“Although a failure to act may have serious c onsequences as an act and although any difference between acts and omissions is often denied the distinction is deeply embedded in law. The fact is no less inescapable because there is no precise test for distinguishing an act from an omission. Human conduct may often be described in either positive or negative terms, although one way rather than the other will appear more natural [But there are difficult cases] and their very existence leads to the imposition of liability for omissions. A man is in his spring cart; the reins are not in his hands, but lying on the horseà ¢Ã¢â€š ¬Ã¢â€ž ¢s back. While the horse trots down a hill a young child runs across the road in front of the cart is knocked down and killed. Had the man held the reins he could have pulled the horse up. Did he kill the child by driving the cart recklessly or by recklessly failing to drive the cart?[1]à ¢Ã¢â€š ¬Ã‚  A question may be raised as to what is à ¢Ã¢â€š ¬Ã‹Å"an omission?à ¢Ã¢â€š ¬Ã¢â€ž ¢ it may be de scribed as Defendantà ¢Ã¢â€š ¬Ã¢â€ž ¢s conduct as à ¢Ã¢â€š ¬Ã‹Å"not doingà ¢Ã¢â€š ¬Ã¢â€ž ¢. According to Ashworth omission is only apply in failing to do things which there is some kind of duty to do, or at least things which it is reasonable to expect a person to do (on the basis of some relationship or role[2]). Therefore generally there is no liability for an omission to act because it would be impractical to impose such a liability unless the defendant was under a legal duty to take positive action. A moral duty will not be sufficient. For example, suppose that Defendant comes out of a club late at night and sees that, across the road, Victim is being kicked and punched by a number of men. If Defendant does not attempt to intervene or, say, summon the police, we will have little difficulty in describing his conduct as not helping, not assisting, omitting to help (of course, unless D is a police officer, it is unlikely that he could be guilty of any offence for failing to help ). There is no general liability for mere omissions. Unless under a duty to act, D will not be liable merely because he fails to go to the aid of a person whom he knows to be drowning in a pool. Equally, as indicated earlier, apart from possible obligations to intervene to prevent a breach of the peace, Defendant (if not a police officer) will not commit a crime merely because he stands by and watches a crime being committed. Before a crime can be committed by an omission, certain requirements must be satisfied. Adhering to the à ¢Ã¢â€š ¬Ã…“social responsibility viewà ¢Ã¢â€š ¬Ã‚  Ashworth stated that it may be fair to place citizens under obligations to render assistance to other individuals on certain situationsà ¢Ã¢â€š ¬Ã¢â€ž ¢ although they are not committed to the idea that there should at all times always be a duty to help, à ¢Ã¢â€š ¬Ã‚ ¦ it lead them to attack the argument that there is general moral distinction between failing to perform an act with foreseen bad con sequences and performing an act with identical bad consequences[3]. Thus it may be stated that a moral duty will not be sufficient. Thus it may be stated à ¢Ã¢â€š ¬Ã…“a crime can be committed by omission, but there can be no omission in law in the absence of a duty to act. The reason is obvious. If there is an act someone acts but if there is an omission everyone (in a sense) omits. We omit to do everything in the world that is not done. Only those of us omit in law who are under a duty to act[4]à ¢Ã¢â€š ¬Ã‚ . As result there are circumstances recognized by the law which creates a duty to act and failing to do so or an omission may give rise to criminal liability. For example If Defendant were to see a child (P) were drowning in a pool Defendant would be under no legal duty to prevent this unless the child was his son or if Defendant was pool attendant employed to ensure the safety of swimmers. There are several exceptions to the general rule, where the defendant will be und er a positive duty to act. I.e. there can be a liability for omission if there is a duty to act provided that; the omission is substantial and operative cause (Causation). According to Ashworth à ¢Ã¢â€š ¬Ã…“the criminal law should be reluctant to impose liability for omission except in clear and serious casesà ¢Ã¢â€š ¬Ã‚ ¦ the distinctive argument is that our duties towards other individuals should be confined to duties towards those for whom we have voluntarily undertaken some responsibilityà ¢Ã¢â€š ¬Ã‚ ¦ we should owe positive duties (e.g. to render assistance, to support) only to a circumscribed group of people with whom there exists a special relationship[5]à ¢Ã¢â€š ¬Ã‚  Before further proceeding with duty to act it is important to state the offences which have been interpreted by the courts as capable of being committed by omission which include Murder; Gibbins Proctor[6], gross negligence manslaughter; Pittwood[7] and criminal damage; Miller[8] are included. Unlawfu l act manslaughter is excluded; Lowe[9] but there are doubts about assault/battery (contrast Fagan v Metropolitan Police Commissioner[10] with DPP v K[11], and see also, DPP v Santana-Bermudez[12] and the general approach in Evans[13], and more serious offences against the person, such as unlawful and malicious wounding or infliction of grievous bodily harm. Similarly, the definition of an attempt in the Criminal Attempts Act 1981 (an act more than merely preparatory) may make it impossible to commit an attempt by an omission, whilst in the Fraud Act 2006, fraud by false representation (s2) requires D to make a representation and the offence of dishonestly obtaining services under s10 requires proof of a dishonest act. At this point it is important state as stated above that the courts have long accepted without debate that murder and manslaughter are capable of commission by omission. Since the given question emphasize the offence of murder in relation to omission it is signific ant to state brief introduction to the offence of murder. Murder is unlawfully killing of human being with malice aforethought. For a person to be liable under murder actus reus of the offence require Unlawfully killing a human being. Further analyzing the definition Unlawful means killing is usually unlawful (Killing in self defense, killing in a course of lawful operation Re A[14] is lawful.) Killing, the conduct of the defendant must cause the death. And the conduct should be a cause not the cause of death. A cause is something, which has made a significant contribution to the victimà ¢Ã¢â€š ¬Ã¢â€ž ¢s death. Traditionally it is said that a cause must be both operative and substantial. Death in the context means brain stem death; Airedale NHS trust v Bland[15] à ¢Ã¢â€š ¬Ã¢â‚¬Å" I.e. terminating life support to a patient who is brain dead does not kill him, because he is already dead. And the most obvious being that it should be a human being, and a person or a human being includ es any child born alive. The mens rea of the offence requires an intention to kill or intention to do grievous bodily harm. Intention can be direct or oblique, if defendant foresaw death or grievous bodily harm as a virtual certainty a jury may find it easy to infer that he intended death or GBH; Nedrick[16]. At this point it may be stated that the first requirement if liability is to be imposed for an omission is that, in principle, the crime can be committed by an omission and second requirement is Defendant was under a duty to act third requirement is that the defendantà ¢Ã¢â€š ¬Ã¢â€ž ¢s omission must be a breach of his duty and finally Defendantà ¢Ã¢â€š ¬Ã¢â€ž ¢s breach of duty by the omission must cause the prohibited consequence. 1 Don’t waste time! Our writers will create an original "The law of omission liability" essay for you Create order [1] P.R. Glazebrook, Criminal Omissions: the duty requirement in offences against the person, LQR 1960 Pg387 [2] Andrew Ashworth, The scope of criminal liability for omissions, Pg 424 [3] Andrew Ashworth, The scope of criminal liability for omissions, Pg 424 [4] Glanville Williams, Textbook of criminal law, Pg 147-149 [5] Andrew Ashworth, The scope of criminal liability for omissions, Pg 425 [6] (1918) 13 Cr App R 134 [7] (1902) 19 TLR 37 [8] [1983] 2 AC 161 HL [9] [1973] QB 702; [1973] 1 All ER 805 [10] [1969] 1 QB 439 [11] [1990] 1 WLR 1067 [12] [2003] EWHC 2908 [13] [2009] EWCA Crim 650 [14] [2001] 2 WLR 480 [15] [1993] AC 789 [16] [1986] 3 All ER 1

The Preface Starts Off By William Lloyd Garrison - 1695 Words

The preface starts off by William Lloyd Garrison describing his encounter with Frederick Douglass at an anti-slavery convention in Nantucket. Garrison tells us that Frederick Douglass made an escape from the southern prison house of bondage and that his speech at the convention was a memorable one. Frederick Douglass’s had eloquence and a skill of persuading. Connecting people’s minds and hearts to his words of description about the reality of slavery. The audience responded with great attention and created a common perspective about the actuality of slavery that Frederick Douglass describes. As soon as Frederick Douglass finished his speech, Garrison arose and declared that the hunted fugitive’s speech was better than Patrick†¦show more content†¦Rather than the descriptions revealed by the masters who might have hide the significant facts about his slaves life and the mistreatments they receive. Phillips was also glad to learn a lot of the true facts f rom Douglass’s narrative and learns the wretchedness of death that gathers over the souls of the slaves before they could even learn their A B C’s. Phillips also mentions that Frederick Douglass originates from a state (Maryland) where the conditions for a slave were less harsh than the other states in the Deep South. Where one can only imagine the horrors that surrounded the slaves in those states. Wendell Phillips also praises his book and is also confident that whoever reads his book will be persuaded towards the cause of anti-slavery and that since Frederick Douglass is a marvelous and persuasive speaker, his book will also consist of the same elements. Finally, he mentions to his friend about how he wrote his own name and his masters names clearly in his narrative, making it dangerous upon himself. Phillips also relates this choice towards the founding fathers when they wrote their names on the Declaration of Independence. Here we can admire Frederick Douglassâ₠¬â„¢s bravery and that he is not scared to spread the truth about the reality of slavery that many do not know. Frederick Douglass was born in Talbot county, Maryland. Douglass explains that he does not know his age, as many other slaves also do not know theirShow MoreRelatedThe Preface By William Lloyd Garrison3512 Words   |  15 PagesThe preface by William Lloyd Garrison describes the encounter between Frederick Douglass and Garrison, at an anti-slavery convention. It tells about how this encounter led to a long partnership between the two as well as Douglass’ involvement in the Anti-Slavery Society. At the convention the people noticed his appearance as well as his intellectual side. The crowd seemed to respond well to the idea of protecting Douglass against his owners. In the convent Garrison says Douglass’ testimony made theRead MoreSports17369 Words   |  70 Pagesof reference: The writer’s point of view, or bias. Do you think she or he is qualified to write about this subject? Is the book based on personal experience? 4. Thesis: What is the main point here? Why do you think this book was written? Read the preface and the book jacket, if applicable. Give a brief description of the book in terms of its thesis, and give your opinion on how well it is supported. 7 8 EXERCISES IN SPORTSCASTING 5. Evidence: What kinds of arguments does the author useRead MoreSports17363 Words   |  70 Pagesof reference: The writer’s point of view, or bias. Do you think she or he is qualified to write about this subject? Is the book based on personal experience? 4. Thesis: What is the main point here? Why do you think this book was written? Read the preface and the book jacket, if applicable. Give a brief description of the book in terms of its thesis, and give your opinion on how well it is supported. 7 8 EXERCISES IN SPORTSCASTING 5. Evidence: What kinds of arguments does the author use, and howRead MoreLangston Hughes Research Paper25309 Words   |  102 Pagesdivide its citizens. Langston had no playmates because Mary Langston lived in a run-down, white neighborhood. He was afraid to leave his yard, where he was safe from rowdy white boys who chased and teased him about the second hand clothes and cast-off womens shoes that he wore. Langston spent many hours sitting on a stool beside his grandmother, who read him stories from the Bible or from his favorite book, Grimms Fairy Tales. Her long wavy hair had very little gray in it, and in her ears she

Governance Preferences Of Institutional - Myassignementhelp.Com

Question: Discuss About The Governance Preferences Of Institutional? Answer: Introduction: The company is not only a social construction but constitutes objectives and expectations of the various stakeholders. Stakeholders besides involving managers and shareholders of the organization also constitute customers, employees, suppliers and other individual or group. The owners of an organization are their shareholders (Huang et al. 2014). The Australian Institute of Company Director (AICD) held the interest of its shareholders above all the organization stakeholders. Directors are appointed by their shareholders to manage their organization. Shareholders invest capital in the organization and receive voting rights in the vital matters of the organization. In small organization, shareholders generally serve as the organization officer and director at a same time. As the shareholders are the real beneficial owner of the company, their interests are the ultimate driver of the organization (Yoshikawa and Hu 2017). The organization bears social responsibility for their shareholder s. Responsibilities of the director towards their shareholders: The major goal of the board of directors is to increase and maximize the value of the shareholders in the long-run. Shareholders values consists the considerations for minority shareholders in the organization. Efficient communication with the shareholders Returning the shareholders profit. Exercise accountability to relevant shareholders To ensure that the communication passed both to and from the relevant stakeholders is effective or not. Promoting goodwill for the organization while supporting the stakeholders. Monitor relations with the stakeholders by collecting and evaluating appropriate information. Strategies: The major strategy of the board of directors is basically based on the required conditions needed for meeting the goal of shareholders value (Boubaker, Derouiche and Nguyen 2015). Making an investment in the business of the company, the shareholders are responsible for assessing their profit return from the investment. The decision made by the board helps in determining their expectations in the terms of profits, dividends and capital growth, which is ultimately reflected by their share price. The basic method of making judgments and evaluating investments about the organization competence in which investment is done helps the shareholders in making comparison with the similar companies. For example, Cadbury Schweppes has over two billion shares from their shareholders and more than 85% are owned by the banks, insurance companies and UK USA institutions (Ciampi 2015). Therefore it is important for Cadbury Schweppes company shareholders trust manager to make efficient decisions and manage the organization to create maximum value on their behalf. Analysis: Benesee holdings proactively or entirely disclose the company information to their shareholders and investors. They provide shareholders relations disclosure tools from the annual report and company websites. The organization practices great relevance on mutual communication with their relationship with their investors and shareholders by promoting various Investor relation activities and maximizing the organization productivity. It is important for the stability of the organization to hold shares. Investors are nowadays having various different organization and options for investment to choose (Eccles and Youmans 2015). If the company in which the shareholders are investing is not producing return for them then it is the right of the shareholders to sell their shares and invest it somewhere else. The sales taking place through large institutional shareholders could further create uncertainty for the companys performance in the near future and can cause the share price to fall. This can limit the organization ability to develop. Therefore retaining shareholders interest can increase their confidence leading to the stability of the organization. The value oriented organization religiously monitors the if the buyers of the company is willing to pay valued premium beyond the companys estimated cash flows for their business units, real estate, brands and various detachable assets (Fich, Harford and Tran 2015). This analysis can fail to exploit the opportunity that can compromise the shareholders value. Kmart is a recent example, an ESL investment, where hedge fund is operated by Edward Lampert and gained the control of the company in less than $ 1 billion and later recoup his overall investment by selling their stores to Home Depot and Sears. Later on, the shares were traded at $30 and in the next year at $100 (Soltani and Maupetit 2015). This created chaos and confusion among the shareholders of Kmart and had to liquidate their entire shares at a distress price. Providing accurate information in a comprehensible manner: It is the responsibility of the directors to maintain the shareholders relations by communicating the business conditions, vision and financial position in a comprehensive and timely basis. The directors should obtain maximum feedback from their shareholders to improve the organization management and hence achieve sustained increment in their corporate value. Recommendation: The board of directors should perform their duties honestly uninfluenced by any fear or impartially. They should recognize the main responsibility to their member as a whole and regard the shareholders interest in the organization. The board should not take inefficient or improper advantages of their position. The directors should lay more emphasis on creating opportunities for dialogues with the shareholders. Therefore, more efforts should be given on vitalizing the shareholders general meeting. Increase the transparency of the shareholders in the General meeting. The directors should avoid their scheduling the General meetings of the stakeholders on all those days when other companies meeting is to be held. In the current times the shareholders should be allowed to exercise their voting rights through the internet. It is the social responsibility of the directors to value their shareholders by focusing on their core competencies to provide efficiency in their organization. For exam ple, McKinsey Co offers free consulting to their shareholders. Conclusion Therefore, it can be concluded that shareholders are the major stakeholders of the organization and the board of directors should lay more emphasis on the retaining the shareholders interest. AICD should make a proper decision regarding the relevance of the corporate stakeholders that includes both the financial stakeholders like bondholders and non-financial stakeholders like the customers, NGOs, employees and suppliers. When shareholders reviews the annual report provided by the company, in which they invested major concerns will be given on the earnings per share, dividend yields, tangible and intangible assets and price/earnings ratio. Hence, it is important for the organization to lay more emphasis on the shareholders interest. References: Armstrong, C.S., Blouin, J.L., Jagolinzer, A.D. and Larcker, D.F., 2015. Corporate governance, incentives, and tax avoidance.Journal of Accounting and Economics,60(1), pp.1-17. Boubaker, S., Derouiche, I. and Nguyen, D.K., 2015. Does the board of directors affect cash holdings? A study of French listed firms.Journal of Management Governance,19(2), pp.341-370. Ciampi, F., 2015. Corporate governance characteristics and default prediction modeling for small enterprises. An empirical analysis of Italian firms.Journal of Business Research,68(5), pp.1012-1025. Eccles, R. and Youmans, T. 2015.Why Boards Must Look Beyond Shareholders. [online] MIT Sloan Management Review. Available at: https://sloanreview.mit.edu/article/why-boards-must-look-beyond-shareholders/ [Accessed 16 Jan. 2018]. Elyasiani, E. and Zhang, L., 2015. Bank holding company performance, risk, and busy board of directors.Journal of Banking Finance,60, pp.239-251. Fich, E.M., Harford, J. and Tran, A.L., 2015. Motivated monitors: The importance of institutional investors? portfolio weights.Journal of Financial Economics,118(1), pp.21-48. Fuente, J.A., Garca-Snchez, I.M. and Lozano, M.B., 2017. The role of the board of directors in the adoption of GRI guidelines for the disclosure of CSR information.Journal of Cleaner Production,141, pp.737-750. Garca-Snchez, I.M., Rodrguez-Domnguez, L. and Fras-Aceituno, J.V., 2015. Board of directors and ethics codes in different corporate governance systems.Journal of Business Ethics,131(3), pp.681-698. Huang, Q., Jiang, F., Lie, E. and Yang, K., 2014. The role of investment banker directors in MA.Journal of Financial Economics,112(2), pp.269-286. Li, W., Bruton, G.D. and Filatotchev, I., 2016. Mitigating the dual liability of newness and foreignness in capital markets: The role of returnee independent directors.Journal of World Business,51(5), pp.787-799. McCahery, J.A., Sautner, Z. and Starks, L.T., 2016. Behind the scenes: The corporate governance preferences of institutional investors.The Journal of Finance,71(6), pp.2905-2932. Palmberg, J., 2015. The performance effect of corporate board of directors.European Journal of Law and Economics,40(2), pp.273-292. Soltani, B. and Maupetit, C., 2015. Importance of core values of ethics, integrity and accountability in the European corporate governance codes.Journal of Management Governance,19(2), pp.259-284. Technology, M. 2018.Why Boards Must Look Beyond Shareholders. [online] MIT Sloan Management Review. Available at: https://sloanreview.mit.edu/article/why-boards-must-look-beyond-shareholders/ [Accessed 16 Jan. 2018]. Yoshikawa, T. and Hu, H.W., 2017. Organizational citizenship behaviors of directors: an integrated framework of director role-identity and boardroom structure.Journal of Business Ethics,143(1), pp.99-109.

Sociology The Family Essays - Gender Studies, Family,

Sociology: ?The Family? One of the main institutions in society is found within the household and is popularly known as ?The Family?. It is here, in the family, where the commencement of society takes place. It is amongst this unit that the origin of women's oppression began with the constant power struggle between man and woman. With the ?nuclear family? slowly being thrown out the window and the new ?dual-earner? family creeping in to takes it's place, it's no wonder that women's positions have changed radically over the past one hundred years. The key work here to this being position, because although women's position has changed, their workload has not. With this radical change many issues can be addressed, particularly, to the women's role and how it has remained fairly constant over the years. A closer examination will look at the development of gender inequality within the family as a result of the ever-changing issue. A second issue that needs to be inspected is that the family roles have changed in regards to family make-up as women have moved into the work force. This growing capital effort to increase standards of living by pushing every family member into the paid labour force has taken a toll on the family unit. The final issue that will be investigated in this report is how the traditional sex roles have remained constant, even with women's ever-changing family position over the years. For decades, commencing back to the time when patriarchy was the ?norm? and women were their husband's property, men have oppressed women. This ideology of patriarchy existed way before it was ever examined by sociologists and it was accepted as a natural or biological way of living. It wasn't until the 1960's when feminist groups began to explore patriarchy and at the same time began to exploit it, that patriarchy was established. Feminists at that time, and even still today, believe that patriarchy operates to achieve and maintain gender inequality and is the essential key to women's present subordination. Not only does patriarchy exist in the pubic domain of the paid labour force, but also in the private domain of the household, or better yet, the family. With patriarchy by its side, gender inequality has developed into one of the biggest controversies amongst sociologists, feminist groups, and women. In modern day society women are working their way into the labour force, and ?expanding their roles to include working outside the home as well as being wives and mothers? (Kaufman, 1999, 440). As women are moving into the paid labour force, they ?continue to work longer hours than do their husbands on household tasks, and there is little evidence that men's proportionate share of the family work has changed much during the past decade or so? (Blair, 1991, 91). Although women are moving into the paid labour force at a fairly fast pace, according to Kaufman, ?men's involvement in domestic roles has increased but at a slower pace than women's entrance into the labour market? (Kaufman, 1999, 440). Women's entrance into the labour market evolved rather rapidly from approximately less than 30% in the 1960's to currently more than 45% of women are in the paid labour force? (Levin, class note, Women's Studies). There are many reasons for the increase of women's labour force participation. The main fact being that the North American standard of living has increased drastically in the past decades, and that double-incomes are needed in order to survive. Along with the increase in standard of living, divorce rates are increasing leaving women with children to support on their own, and therefore, women must find outside work. There are also fewer children to raise, therefore, women have more time to work and raise their children. Also, there is a great change in societal attitudes that push women into the work force. Finally, with pay equity policies having been established, it is much easier for women to find work that will pay enough to support her and her family. Historical factors have weighed heavily on women's current status. In the nineteenth century, attitudes toward women were very different to the present attitudes placed upon them now. In the nineteenth century, there was a great need