OMISSION: FAILURE TO ACT

There are some crimes which can only be committed by doing an act. Of the
offences, one example is unlawful act manslaughter. But many of the other
offences can also be committed by omission, that is, by a failure to act.
Examples include murder, offences involving bodily harm, criminal damage and
fraud.

Generalised Duty to Act (e.g., French System)

In legal systems like France, there is a broad obligation imposed on individuals
to assist others in danger (known as "Good Samaritan" laws). This means that
failure to act (e.g., not helping a drowning person or not calling for help) can
result in legal consequences, even if you had no specific role or connection to
the person in danger. The focus is on the duty to provide aid, regardless of the
outcome or consequence. For example, in France, if someone witnesses a car
accident and does not call for help, they can be held liable for failing to act,
even if the victim survives or the outcome is unrelated to the omission.

Result crimes: These require a specific harmful outcome or result to occur

(e.g., death in murder). The crime is defined by the result of the defendant’s
actions.
Example: In manslaughter, the unlawful killing (result) must occur for the crime
to be complete.

Conduct crimes: These focus on the prohibited behaviour itself, regardless of

whether it causes a harmful result. The act alone is enough to constitute the
crime. Example: In drunk driving, simply driving under the influence is the
crime, even if no accident or harm occurs.

Before a person can be found to have committed a crime by omission, two

things must first be established: (1) that the defendant had a duty to act; and
(2) that the defendant breached this duty.

Generally, there is no criminal liability for omissions. This was made clear by
the House of Lords in R v Miller [1983] 2 AC 161. So, a defendant will not be
criminally liable if he stands and watches a stranger drown in the sea, nor if he
refuses to call an ambulance for a stranger who has just been beaten up and
instead walks off and leaves the victim lying injured on the ground. However,
there are a number of exceptions to the general rule that there is no criminal
liability for omissions.
 1. Statutory duty
Some statutes impose a duty to act in certain circumstances. If the defendant
fails to act in the manner required by the statute, he will breach his duty and
may be criminally liable. There are many examples, which include:
● Failure to stop at or report a road traffic accident;
● Failure to provide a police officer with a specimen breath test when required
to do so;
● Allowing the death of a child or vulnerable adult who lives in the same
household (also known as ‘familial homicide’) (Domestic Violence, Crime and
Victims Act 2004, s.5)

2. Family relationships
This second exception is quite limited in scope.

a. Parents have a duty to care for their children; R v Gibbins & Proctor
(1918) 13 Cr App R 134. The general view, supported by the decision in R
v Shepherd (1862) 9 Cox CC 123, is that the duty terminates once the
child reaches independence. A further question is whether the duty
operates in both directions: do children have a duty to care for their
parents? The answer to this question is unclear. Whilst some have
argued that children do have a duty to care for their parents, the better
view is that children do not automatically have such a duty. A duty
would only arise if the child had voluntarily assumed responsibility for
their parent (also an exception to the general rule).

b. Husband- wife: There will normally be a duty to act between spouses.

However, the Court of Appeal’s approach in R v Smith [1979] Crim LR
251 was to base this duty on a voluntary assumption of responsibility
(the third exception to the general rule). In other words, spouses do not
owe each other a duty to act simply because they are married. They owe
each other the duty because they have voluntarily assumed
responsibility for each other. This difference would be significant in a
case involving a married couple who have separated. Although they are
still married, the fact that they have chosen to separate shows that they
are no longer assuming responsibility for one another, and so would no
longer owe each other a duty to act.

c. Voluntary assumption of responsibility: A duty will be owed by anyone

who another person, whether through age, infirmity, illness, etc. The
 duty may be express but is more likely to be implied from conduct R v
Stone and Dobinson [1977] 2 All ER 341 and Gibbons and Proctor [1918]
13 Cr App R 134.

One obvious way in which a person might assume responsibility for

others is through their choice of job. In Airedale NHS Trust v Bland
[1993] AC 789 the House of Lords stated that doctors have a duty to act
in the best interests of their patients. If they fail to act in their patients’
best interests, they breach their duty and may be criminally liable. Police
officers may also be criminally liable for failing to perform their duties as
a police officer (R v Dytham [1979] QB 722).

d. Contractual duty: A defendant may have a contractual duty to act. Often

this will be a contract of employment. The leading case on contractual
duty is R v Pittwood (1902) 19 TLR 37. The defendant was a gatekeeper
on a railway. He was employed to shut the gate at a level crossing
whenever a train was passing, between the hours of 7 am and 7 pm. One
day he left the gate open while he went for his lunch. As a result, a
haycart was struck by a train, and a man was killed. Pittwood was
convicted of manslaughter for his failure to shut the gate.

When determining whether a defendant has breached a contractual

duty, it is important to look closely at the terms of the contract. For
example, Pittwood’s contract of employment limited his duty to the
hours of 7 am to 7 pm. So, if someone else had carelessly left the gate
open at 9 pm, and as a result there was an accident ten minutes later,
Pittwood would not have been in breach of his contractual duty.

It is always necessary to establish that D breached his duty. Suppose that

an on-duty lifeguard notices that a swimmer is struggling. He reacts
immediately and does his best to save the swimmer, but unfortunately
the swimmer drowns. Although the swimmer died, the lifeguard is not
criminally liable since he fulfilled his contractual duty to make all
reasonable efforts to protect the safety of swimmers. D’s breach of duty
must have caused the harm. Suppose that the lifeguard had noticed that
the swimmer was struggling but did nothing and sat and watched as the
swimmer drowned. The lifeguard unquestionably breached his
contractual duty. But whether or not the lifeguard is guilty of a homicide
offence will depend on whether it can be shown that his breach of duty
was a cause of the swimmer’s death. It might be that, even if the
 lifeguard had done everything he could, the swimmer would still have
drowned. If this is the case then, there would be no causal link between
the lifeguard’s failure to act and the swimmer’s death (discussion of
both, omission to act and causation).

e. Creation of a dangerous situation: Where D inadvertently, and without

the requisite mens rea, does an act which creates a dangerous situation
then, on becoming aware of it, he is under a duty to undo the dangerous
risk created by taking all such steps as lie within his power or minimize
the
harm. If he fails to take such steps with the appropriate mens rea, then
he will be criminally liable. This situation arose in R v Miller [1983].

Miller was convicted of arson. His conviction was based on his failure to
take any steps to put the fire out once he had become aware of it. He
appealed against his conviction, arguing that he could not be held
criminally liable for his omission. The case reached the House of Lords,
who unanimously dismissed the appeal and upheld the conviction. So if
a defendant creates a dangerous situation, he has a duty to take steps to
counteract the danger he has created. Before moving on, notice that the
duty imposed by R v Miller is to take such steps that ‘lie within one’s
power’. So, a defendant only breaches this duty if he fails to take steps
that lie within his power. R v Miller was applied in a different context by
the Court of Appeal in R v Evans [2009] EWCA Crim 650. At trial Andrea
Townsend and Gemma Evans were both convicted of manslaughter for
their failure to summon medical help. The trial judge told the jury that
they could conclude that Evans had a duty to act since she supplied the
heroin. On appeal Evans argued that this was a misdirection, and that
supplying the drugs could not give rise to a duty to act. The Court of
Appeal rejected this argument and applied the principle from R v Miller.
Lord Judge CJ stated:
“When a person has created or contributed to the creation of a state of
affairs which he knows, or ought reasonably to know, has become life
threatening, a consequent duty on him to act by taking reasonable steps
to save the other’s life will normally arise.”

Notice two further points about the judgment in R v Evans. First, if a

defendant has a duty to act arising from the R v Miller principle, the duty
only begins at the moment that the defendant realised, or ought to have
realised, the danger. Second, in R v Miller Lord Diplock said that the R v
 Miller principle applies to defendants who created the dangerous
situation. In R v Evans Lord Judge CJ went further than this, saying that
the principle applies to defendants who created, or contributed to,
the dangerous situation. This extension of the R v Miller principle was
crucial in R v Evans. In R v Kennedy (No 2) [2007] UKHL 38 the House of
Lords held that voluntarily self-injecting drugs breaks the chain of
causation. Therefore, Gemma Evans was not a (legal) cause of (i.e. she
did not create) the dangerous situation that Carly found herself in,
because Carly voluntarily self-injected the drugs. Evans did, however,
contribute to the dangerous situation by supplying the drugs in the first
place.

f. Public duty: a person in a public office may be under a public duty to

care for others R v Dytham [1979].

Establishing that the defendant may be criminally liable for his omission is only
the first step. Once you have done this, you will then need to identify the
relevant criminal offence and determine whether all the actus reus and mens
rea elements of the offence are satisfied. If the crime in question is a result
crime (like murder), you will need to discuss whether the defendant’s breach
of duty was a cause of the harm. For example, suppose that the defendant
sees his young daughter get run over by a car. The defendant does nothing to
help and does not call an ambulance. Medical evidence later shows that the
girl died within minutes, and that doctors would not have been able to save
her. On these facts the defendant breached his duty to his daughter, but the
breach was not a cause of her death. Even if he had phoned an ambulance she
would still have died. So he will not be guilty of a homicide offence. There are
other offences which can be committed by omission which are not result
crimes. Crimes like failing to stop at or report a road traffic accident, or failure
to provide a police officer with a specimen breath test when required to do so,
have no consequence element and so there is no requirement to prove
causation. However, you still need to show that all the other actus reus and
mens rea elements of the crime are satisfied before concluding that the
defendant is criminally liable.

Is the law pertaining to the principle of Omissions satisfactory? What are some
criticisms in light of the existing case laws?
Inconsistent Definition of Legal Duty
The primary criticism is that liability for omissions is only imposed when there
is a legal duty to act, but the circumstances under which this duty arises are
inconsistently applied. In R v Pittwood, a railway gatekeeper failed to close the
gate, resulting in a fatal accident. He was convicted of manslaughter because
he had a contractual duty to act. This case shows how a contractual obligation
can lead to liability, but similar situations where no contractual duty exists
might escape liability, leading to inconsistency.

Moral vs. Legal Obligations

One of the strongest criticisms is the strict separation between moral and legal
duties. While someone might have a strong moral obligation to act, the law
does not impose legal liability unless a duty exists. In R v Stone and Dobinson
(1977),
the defendants had voluntarily assumed responsibility for the care of the
victim, creating a duty to act. The case illustrates that while the defendants’
moral failure was obvious, the legal reasoning rested on the narrow fact that
they had assumed responsibility. This creates a gap, as others who witness
similar suffering without assuming responsibility might escape liability, despite
the moral expectation to act; a bystander with no parental obligation may not
face liability for the same omission, even if morally reprehensible.

Arbitrary Scope of Duty

The duty to act often depends on an arbitrary set of circumstances, leaving
gaps in the law. In Airedale NHS Trust v Bland, a patient was in a persistent
vegetative state, and the doctors sought to withdraw life-sustaining treatment.
The court allowed this, holding that there was no duty to continue treatment
when it was not in the patient’s best interests. This case highlights how duties
in medical settings can be nuanced and discretionary, leading to perceived
arbitrariness.

Proving Causation
Establishing that an omission caused harm is often more difficult than proving
causation in cases of positive action. In R v Instan, the defendant lived with her
elderly aunt, who became ill and unable to care for herself. The defendant did
not seek medical help or provide food, leading to the aunt’s death. She was
convicted of manslaughter. Although the causal link between the omission and
death was clear in this case, proving causation in omission cases can be more
complicated when other factors (such as pre-existing conditions) are involved.