Omission

Generally an omission can't form the basis of the actus reus of an offence, there are exceptions.

The general rule is that an omission cannot form the basis of the actus reus of an offence. Lord Justice Stephen's words are often used to support the supposition that a person is not criminally liable for failing to act when he said: 'It is not a crime to cause death or bodily injury, even intentionally, by any omission'. LJ Stephen went on to use the example of the person seeing someone drowning but doing nothing, yet if they had held out their hand the person would have been saved.


As with most general rules there are exceptions. At common law there are some situations where the failure to act does give rise to criminal liability. Parliament can also impose a duty to act in an Act of Parliament such as the Children and Young Persons Act 1933 which made it a criminal offence for a person over 16 failing to look after a child under 16, so an omission is part of the actus reus of that crime.


A duty can arise by virtue of a special relationship, such as that of a parent and child. This was the case in Gibbins v Proctor (1918) where the child's father and his common law wife neglected to feed the child. The child died of starvation and the couple were found guilty of her murder. Whilst it was widely accepted that the father was obligated to look after his own child, the man's common law partner was also considered liable because, although the child was not her own, she had received money for food from the man. Such special relationships can extend to nieces and aunts as in R v Instan (1893).


There are limitations to these relationships and it has been decided that drug dealers are not under any special duty in respect of their customers, and this resulted in the quashing of a conviction of manslaughter (R v Khan (1998)).

A slightly wider exception is where the defendant has voluntarily accepted responsibility of another. There does not need to be a 'special relationship' as such, merely that the victim comes to rely upon the other and the other fails to act as expected. An example can be found in the case of R v Stone and Dobinson (1977) where a sister of an elderly brother came to stay – the brother's lady friend was of low intelligence and the brother himself had problems with his own health. The sister was obsessed with putting on weight and she became bed ridden and developed bed sores which became infected. The couple failed to get help for the sister and she died. The man and his friend were convicted of manslaughter and the court of appeal upheld the conviction because the couple had assumed a duty to look after the sister and they had failed her.


A contractual duty to act may give rise to a criminal liability. This was so in R v Pittwood (1902) where a person was employed by the railway as a gate keeper at a level crossing. He opened the gates to let a car pass across the line but failed to close them before going off to have his lunch. A short time afterwards a train hit a hay-cart crossing through the already open gates. The person with the hay-cart was killed. The gate keeper was found guilty of gross negligence as a result of failing to act in accordance with his contractual obligations.A modern example of someone under a duty to act would be a lifeguard.

 

Since R v Miller (1983), the common law has recognised that criminal liability may arise where there is a dangerous situation and this has been caused by the defendant and the defendant has failed to take action to put this right. In the case in question the defendant, Miller, was a squatter who had fallen asleep on a mattress. He had been smoking at the time and he somehow caught the mattress alight. On waking he simply moved to a different room and did nothing to put out the fire. The fire got out of hand and seriously damaged the house. Miller was charged with arson and his conviction was upheld by the House of Lords. Recklessness is sufficient mens rea for arson so, in the absence of evidence of intention, this was considered to be enough for a conviction. Interestingly, lighting a cigarette in a building was not unlawful and therefore not the actus reus – it was the subsequent failure on his part that gave rise to the actus reus through his omission of failing to act in a dangerous situation which he started.

 

There is a requirement that persons in a public position have a responsibility to take certain action. In the case of R v Dytham [1979], for example, a police officer was held to have been correctly convicted when he stood by during a disturbance in which a man was kicked to death. It was held that the offence of misconduct in a public offence can be committed by an omission.


Finally there are a number of statutory provisions where a liability is imposed in particular circumstances. Examples can be found under the Road Traffic Acts with such matters as failing to provide a breath specimen when required; failing to report an accident and failing to provide details to someone entitled to them after an accident. Clearly the requirement is seen as so important by Parliament that they created a criminal offence for not complying with the duty to act in the circumstances.

 

Explain how an omission can be the basis of the actus reus of a crime.

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