Criminal Liability for Omissions
- teachlawhub
- 1 day ago
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To be guilty of a criminal offence under UK law, a defendant must usually have both the actus reus and the mens rea of the criminal offence. The actus reus is the guilty act, and the mens rea is the guilty mind. If both elements are present at the same time, then the defendant can be found guilty and punished under criminal law.
When establishing actus reus, it is normally required that the defendant has committed a positive and voluntary act. This means that criminal liability usually arises because someone has done something, their actions have caused or formed a criminal offence. However, there are important situations in criminal law where a defendant can be found liable because they have failed to act in a situation.
This failure to act is known as an omission.
An omission occurs where the defendant does not take action or fails to take action when they were required to do so. Although this may seem morally wrong, the law does not automatically punish people simply for failing to help others.
Generally, under English criminal law there is no criminal liability for an omission. This means that a person will not usually be guilty of a crime simply because they failed to act, even if their inaction results in serious harm.
For example, imagine this situation Gina is walking her dog at the side of a river, she sees Luca struggling in the water. Gina could easily call for help and save Luca but she chooses to ignore the situation and carry on walking, leaving Luca to drown in the water. Here even though this is morally wrong and Gina should try to help, the fact that she has failed to act and help Luca does not mean that she will be criminally liable. Here she was not under a legal duty to take action and help Luca, she has not committed a criminal offence.
This is because the UK does not have a Good Samaritan law. A Good Samaritan law would impose a legal duty on people to help others in danger. In the UK, the law makes a clear distinction between what is morally wrong and what is legally criminal. While failing to help may be morally unacceptable, it is not usually criminal unless a specific legal duty exists.
The General Rule:
Under UK law the general rule is that there is no liability for omissions (failing to act) unless the defendant was under a specific duty to take action (a duty to act).
This means that if the defendant was under a specific legal duty to take action and they then failed to act, they can be found guilty of a criminal offence. If there is a legal duty to act and the defendant fails to act, their failure to act/omission can satisfy the actus reus of an offence.
We will now look at the main types of duties recognised by English criminal law.
Statutory Duty:
A statutory duty arises where an Act of Parliament places a legal obligation upon a person to act in a certain way. If the defendant fails to comply with that duty, they can be criminally liable for an omission.
A clear example is found in Section 6 of the Road Traffic Act 1998, which creates a legal duty for a driver to provide a breath specimen when requested by a police officer. If a driver refuses to provide the sample, their failure to act is an omission and they commit a criminal offence.
Contractual Duty:
A duty to act may also arise from a contract. If a contract requires a person to perform certain duties, and failing to do so places others at risk, the failure can amount to a criminal omission.
In the case of Pittwood (1902), the defendant was employed by a railway company as a gatekeeper. His job was to raise and lower a gate to protect the public when trains approached. He left the gate open. A train collided with a horse and cart, killing the driver.
The court held that Pittwood was criminally liable because he had a contractual duty to act. His failure to close the gate was an omission that caused death, making him guilty of manslaughter.
Duty Arising from a Relationship:
A duty to act can arise from a relationship, most commonly between parents and their children. Parents owe a legal duty of care to ensure their children are fed, clothed, and kept safe. In some circumstances, this duty can also apply the other way around, where an adult child is caring for an elderly parent.
This can be seen the case of Gibbins and Proctor (1918), a father and his partner deliberately failed to feed the father’s young daughter. The child died from starvation. The court held that the father had a clear parental duty to act, and the omission was so serious that both defendants were convicted of murder.
Voluntarily Assumption of Care:
A duty to act can also arise where the defendant voluntarily assumes responsibility for another person. This usually involves taking care of someone who is vulnerable, ill, or dependent. Here the defendant has voluntarily assumed care over another.
This can be seen the case of Stone and Dobinson (1977), the defendants took in Stone’s elderly sister, who suffered from mental health issues. They attempted to care for her but failed to seek medical help when she stopped eating. She later died.
The court held that by taking her in, the defendants had voluntarily assumed a duty of care. Their failure to act went beyond mere incompetence and amounted to a criminal omission.
Duty Arising from an Official Position
A duty to act may arise where the defendant holds a public office and deliberately fails to carry out their duties. This duty usually applies to roles such as police officers, prison officers, and others responsible for public safety. Here this duty exists and the person in the official position must take action by the very nature and purpose of their role. If they fail to take action then they can be found criminally guilty for their omission.
This can be seen the case of Dytham (1979), a police officer stood by and watched a man being beaten to death. He made no attempt to intervene or summon help. The court held that the officer had a duty to act due to the nature of his role. His deliberate failure to act amounted to the offence of misconduct in a public office.
This case highlights that some roles carry automatic legal responsibilities, and failing to act can be criminal.
Duty Arising from Creating a Dangerous Situation
A duty to act may also arise where the defendant creates a dangerous situation, becomes aware of it, and then fails to take reasonable steps to prevent harm. Once the defendant has become aware of the danger, they must take reasonable steps to prevent harm. If they fail to do this they will be guilty for failing to take the appropriate action.
This can be seen the case of Miller (1983), the defendant accidentally started a fire by dropping a cigarette onto a mattress. When he noticed the fire, he moved to another room instead of putting it out or calling for help. The House of Lords held that once Miller became aware of the danger he had created, he was under a duty to act. His failure to do so was a criminal omission.
This principle was confirmed in R v Evans (2009). The defendant supplied her half-sister with drugs and later became aware that she was seriously ill after taking them. She failed to seek medical help, and the victim died. The court held that Evans was liable for gross negligence manslaughter because she had created a dangerous situation and failed to act once she realised the risk.
In English criminal law, omissions are only criminal where the defendant was under a recognised legal duty to act. These duties arise through statute, contract, relationships, voluntary assumption of care, official position, or creating a dangerous situation.
Remember, not all morally wrong behaviour is criminal, but once a legal duty exists, failing to act can be just as serious as acting.
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