Being found drunk on a public highway (Licensing Act 1872, s 12)
Case progression: Magistrates’ court – Guilty
Divisional Court – Guilty
Point of law: Physical compulsion to commit an offence
In Winzar v Chief Constable of Kent (1983) The Times, 28 March 1983, the defendant had been found drunk in a hospital and was asked to leave. He refused, whereupon the police were called. An officer forcibly removed him to his patrol car, which was parked on the highway outside, and charged him with ‘being found’ drunk there. The defendant was convicted in the magistrates’ court.
Upholding his conviction, Goff LJ pointed out that a distinction would otherwise have to be drawn between a drunk who leaves a restaurant when asked to do so and one who is forcibly ejected after refusing to leave. His Lordship provides:
Suppose a person was found as being drunk in a restaurant or a place of that kind and was asked to leave. If he was asked to leave, he would walk out of the door of the restaurant and would be in a public place or in a highway of his own volition. He would be there of his own volition because he had responded to a request. However, if a man in a restaurant made a thorough nuisance of himself, was asked to leave, objected and was ejected, in those circumstances, he would not be in a public place of his own volition because he would have been put there either by a gentleman on the door of the restaurant, or by a police officer, who might have been called to deal with the man in question. It would be nonsense if one were to say that the man who responded to the plea to leave could be said to be found drunk in a public place or in a highway, whereas the man who had been compelled to leave could not.
The focus is on the defendant ‘being’ in a particular place, as opposed to ‘doing’ a particular act. In Larsonneur, the defendant was found ‘being’ in the UK; and in Winzar, the defendant was found ‘being’ intoxicated on a highway. It is irrelevant that both defendants were compelled to be in those locations and that neither were necessarily at fault. A useful summation of this area of law is that defendants are simply in the ‘wrong place at the wrong time’. Both cases are subject to considerable criticism on the ground that to criminalise an individual for ‘being’ rather than ‘doing’ is contrary to the general principle of actus reus – ie there must be a guilty act or conduct. Lanham (‘Larsonneur Revisited’ [1976] Crim LR 276), however, finds favour with the decisions above. Particularly in relation to Larsonneur, Lanham states:
If Miss Larsonneur had been dragged kicking and screaming from France into the United Kingdom by kidnappers and the same judgment had been given by the Court of Criminal Appeal, the defence of unforeseeable compulsion would truly have been excluded and the case would be the worst blot on the pages of the modern criminal law. But she wasn’t and it wasn’t and it isn’t.
2.6Omissions
For some crimes, the actus reus may not be an act but, rather, a failure to act in circumstances where there is a duty to do so. JF Stephen, in his Digest of the Criminal Law, 3rd edn (Clowes and Sons, 1887), explained that generally there is no ‘Good Samaritan law’ as an omission will not usually result in criminal liability. JF Stephen gives the following famous example:
A sees B drowning and is able to save him by holding out his hand. A abstains from doing so in order that B may be drowned, and B is drowned. A has committed no offence.
In this case, although A may have failed to save B, he did no positive act to cause B’s death. In general, therefore, there can ordinarily be no liability for a failure (or omission) to act unless the law specifically imposes such a duty upon a particular person.
2.6.1The position in other jurisdictions and conflicting views
In some jurisdictions, such as France and Germany, an individual would always be under a duty to act in what have become known as ‘easy rescue’ situations (French Penal Code: Article 63; German Penal Code: Article 323c). Easy rescue situations are those where the defendant can save another individual without placing himself in danger. English law, however, does not recognise such ‘easy rescue’ situations.
2.6.1.1The ‘social responsibility’ view
Ashworth (‘The Scope of Liability for Omissions’ (1989) 105 LQR 424) argues that where the rescue of the victim would not pose a danger to the defendant, then liability should always be imposed for a failure to act, even where there is no pre-existing duty to act. Ashworth labels this as a ‘social responsibility’ on the part of citizens. You may find this approach sensible and worth investing in. Indeed, Cobb (‘Compulsory Care Giving: Some Thoughts on Relational Feminism, the Ethics of Care and Omission Liability’ (2008) 39 Cam LR 11) argues that a general ‘citizenship duty’ which would focus on a mandated reasonable action to prevent harm to one’s fellow citizens would be ‘fairer, clearer and simpler’. See also Ashworth and Steiner, ‘Criminal Omissions and Public Duties: The French Experience’ (1990) 10 LS 152.
This approach, however, is not short of difficulties, with two prominent questions needing to be answered:
(1) Who decides when intervening would or would not pose a danger?
(2) Is the test for such a decision subjective (looking at what the individual thought at the time) or objective (looking at what the reasonable man would do in that situation)?
2.6.1.2The ‘conventional’ view
In addition to those two questions, Williams (‘Criminal Omissions – The Conventional View’ (1991) 107 LQR 86) counters Ashworth’s arguments by defending ‘individualism’ and making a key moral distinction between ‘killing and letting die’. Williams conforms to the conventional view that there is no social responsibility placed on a stranger to act and save another, and criminal law resources ought to be focused on those individuals who actively seek to harm, through positive actions, another. With a lack of ‘fair warning’ to citizens as to how far their duty extends, Williams contends that the conventional view ought to be maintained.
2.6.2Classifying omissions
Fletcher in his text, Rethinking Criminal Law (Little Brown, 1978) distinguishes two forms of liability for omissions:
•‘breach of duty to act’; and
•‘commission by omission’.
According to Fletcher, where liability may be imposed for breach of a statutory obligation to act, this is known as a ‘breach of duty to act’. Specifically, this relates to conduct crimes where there is no requirement for the incidence of harm to be proved. The second type relates to result crimes which Fletcher labels ‘commission by omission’. This is where liability is imposed ‘for failing to intervene, when necessary, to prevent the occurrence of a serious harm such as death or the destruction of property’.
This classification is useful and provides a strong starting point for omission liability. However, you will find that the law of omissions is generally classified now as determinative on the facts of the particular case. For example, we do not speak of a general ‘breach of a duty to act’ but,
