Actus Reus Omissions

General rule: criminal liability for omissions

Facts: A person sees a stranger in danger but does nothing to help, despite being able to do so safely.

Ratio: English criminal law generally imposes no duty on a person to rescue another or prevent harm. Criminal liability for an omission normally requires a recognised legal duty to act. There is no general Good Samaritan law.

Application: Begin an omissions problem by identifying whether D was under a legal duty to act. Do not assume that D is criminally liable simply because helping would have been morally right or easy.

Three-stage test for omissions

Facts: D is accused of causing a prohibited result or committing an offence by failing to act.

Ratio: Consider three questions: (1) Is the offence capable of being committed by an omission? (2) Did D owe a legal duty to act, and what was its source? (3) Did D breach that duty? For result crimes, the prosecution must additionally prove that the omission caused the prohibited result.

Application: Use this structure to organise any omissions problem. Identify the offence first, establish the source of the duty, assess whether D failed to take the required reasonable steps, and then consider causation where relevant.

R v Gibbins and Proctor (1918) 13 Cr App R 134

Facts: Gibbins was the father of a young child. He and his partner, Proctor, deliberately failed to provide the child with sufficient food, causing the child to starve to death. Both were convicted of murder.

Ratio: A parent owes a legal duty to provide the necessities of life to their dependent child. Proctor could also be liable because she had assumed responsibility for the child's care.

Application: Use as authority for a duty arising from a parent-child relationship and for voluntary assumption of responsibility. It also demonstrates that homicide can be committed by omission where D has a legal duty to act and the omission causes death.

R v Santana-Bermudez [2003] EWCA Crim 2908

Facts: A police officer searched the defendant before taking him into custody. The officer asked whether he had anything sharp or dangerous on him. The defendant said no, despite having a hypodermic needle in his pocket. The officer pricked herself on the needle and suffered injury.

Ratio: An omission can constitute an assault where D has a duty to disclose a danger that D has created or is responsible for, and the failure to warn exposes another person to that danger.

Application: Use to show that non-fatal offences can be committed by omission. Consider whether D had a duty to disclose the danger and whether the failure to do so caused the victim to apprehend or suffer the relevant harm.

R v Miller [1983] 2 AC 161

Facts: The defendant was squatting in a house and fell asleep while smoking a cigarette. He woke to find that the mattress was smouldering. Instead of putting out the fire or seeking help, he moved into another room. The fire spread and caused damage.

Ratio: A person who creates a dangerous situation, even accidentally, comes under a duty to take reasonable steps to prevent or minimise the danger once they become aware of it. Criminal damage can be committed by omission where D breaches that duty.

Application: Use where D accidentally creates a danger and subsequently fails to deal with it. Identify when D became aware of the danger and whether reasonable steps were available. The duty is to take reasonable steps, not necessarily to eliminate every risk personally.

R v Pittwood (1902) 19 TLR 37

Facts: The defendant was employed as a railway crossing gatekeeper. He failed to close the gate when a train approached, allowing a cart to cross the railway line. The cart was struck by the train and the driver was killed.

Ratio: A contractual duty to act can give rise to criminal liability where D's failure to perform the required task causes death. The duty may extend beyond the employer to protect members of the public.

Application: Use where D's employment or contract requires them to perform a safety-related task. Establish the contractual obligation, breach and causation. The case is an example of gross negligence manslaughter by omission.

R v Adomako [1995] 1 AC 171

Facts: The defendant was an anaesthetist during an eye operation. The tube supplying oxygen to the patient became disconnected, but he failed to notice the disconnection despite obvious signs that the patient was not receiving oxygen. The patient suffered cardiac arrest and died.

Ratio: Gross negligence manslaughter requires a duty of care, breach of that duty, causation of death, and negligence so gross as to justify criminal liability. A doctor who undertakes responsibility for a patient's treatment owes that patient a duty of care. The jury decides whether the breach was sufficiently gross.

Application: Use where a professional fails to perform a duty of care and the failure causes death. It is particularly useful for establishing the duty, breach and grossness elements of gross negligence manslaughter. Do not treat it as requiring a contractual relationship: the duty can arise from undertaking responsibility for the patient.

R v Instan [1893] 1 QB 450

Facts: The defendant lived with and cared for her elderly aunt, who became seriously ill and unable to look after herself. The defendant failed to provide her with food or obtain medical assistance, while continuing to use her aunt's money for her own benefit. The aunt died.

Ratio: A legal duty to act may arise where D has assumed responsibility for a vulnerable person who depends on them for basic care. The defendant's failure to provide necessities or obtain help may amount to criminal neglect.

Application: Use where D has taken on responsibility for someone who is elderly, ill or otherwise unable to care for themselves. Consider the extent of the responsibility assumed and the person's dependence on D.

R v Stone and Dobinson [1977] QB 354

Facts: Stone and his partner Dobinson allowed Stone's sister, Fanny, who suffered from anorexia and was seriously unwell, to live with them. They made some attempts to care for her but failed to obtain adequate medical assistance as her condition deteriorated. She eventually died.

Ratio: A duty of care may arise where D voluntarily assumes responsibility for a vulnerable person. Having undertaken some care, D may be under a duty to take reasonable steps to obtain appropriate assistance. Their failure to do so contributed to liability for gross negligence manslaughter.

Application: Use where D initially agrees to care for someone but later fails to provide adequate assistance. Consider whether D assumed responsibility, whether V relied on that care, and whether D's failure to obtain help breached the duty.

R v Hood [2003] EWCA Crim 2772; [2004] 1 Cr App R (S) 73

Facts: The defendant's wife suffered a fall. She had osteoporosis and brittle bone disease, and the defendant was her sole carer. He failed to obtain medical attention for her for several weeks, during which her condition deteriorated. She eventually died in hospital. The defendant appealed his sentence for gross negligence manslaughter.

Ratio: The case illustrates that a duty to act may arise where D has assumed responsibility for a vulnerable spouse as their sole carer. The Court of Appeal reduced the sentence because the defendant was not wholly responsible for his wife's death.

Application: Use when considering an assumed duty of care within a relationship, particularly where one spouse is dependent on the other for care. Do not assume that marriage alone automatically creates a duty in every situation; focus on the care actually undertaken and the victim's dependence.

R v Dytham [1979] QB 722

Facts: The defendant was an on-duty police officer who witnessed a man being kicked to death outside a nightclub. He made no attempt to intervene or obtain assistance and drove away after his shift. He was convicted of misconduct in public office.

Ratio: A public officer may commit misconduct in public office by wilfully neglecting to perform a duty attached to their office. The offence can be committed by omission; a positive act of misconduct is not always necessary.

Application: Use where D holds public office and deliberately fails to perform an official duty. It demonstrates that a public duty can provide a recognised source of an obligation to act. The case concerns misconduct in public office, not a general duty on every bystander to intervene.

Road Traffic Act 1988, s.170(2)-(4)

Facts: A driver is involved in an accident on a road or public place which causes injury to another person or certain damage to property, but fails to stop, provide required details or report the accident.

Ratio: Section 170(2) requires the driver to stop and provide specified details when reasonably required. Under s.170(3), if the driver does not provide those details, they must report the accident. Failure to comply with s.170(2) or (3) is an offence under s.170(4).

Application: Use as an example of a statutory duty to act. Identify whether the accident falls within s.170(1), whether the driver complied with the duties to stop and provide details, and whether a report was required. The reporting deadline is as soon as reasonably practicable and, in any event, within 24 hours.

Road Traffic Act 1988, s.6(6)

Facts: A driver is lawfully required by a police officer to cooperate with a preliminary roadside breath test but refuses or fails to cooperate without a reasonable excuse.

Ratio: Section 6(6) creates an offence where a person fails, without reasonable excuse, to cooperate with a preliminary breath test required under s.6.

Application: Use as an example of a statutory obligation to cooperate with a police requirement. Be precise: s.6(6) concerns the preliminary breath test. Failure to provide a specimen for analysis is dealt with separately under s.7(6).

Criminal Justice and Courts Act 2015, s.20

Facts: A paid care worker has responsibility for the care of an individual but ill-treats or wilfully neglects that person.

Ratio: Section 20 makes it an offence for an individual who has the care of another by virtue of being a care worker to ill-treat or wilfully neglect them. The statutory definition of care worker includes certain people providing paid health or social care.

Application: Use as an example of a statutory offence involving neglect or omission. Check that D falls within the statutory definition of care worker, has care of V by virtue of that role, and has wilfully neglected V. This is not a general duty imposed on everyone who encounters a person in need.

Terrorism Act 2000, s.19

Facts: A person receives information in the course of their trade, profession, business or employment which leads them to believe or suspect that another person has committed an offence under ss.15-18 of the Act. They fail to disclose that belief or suspicion and the supporting information to a constable as soon as reasonably practicable.

Ratio: Section 19 creates a specific statutory duty to disclose certain information about specified terrorist-financing offences. Failure to disclose is an offence, subject to statutory defences and exceptions, including reasonable excuse.

Application: Use as an example of a statutory duty to disclose information. Do not describe it as a general obligation on everyone to report any suspected terrorism: the statutory conditions concerning the type of offence and how the information came to the person's attention must be satisfied.

Breach of a duty to act: reasonableness

Facts: D owes a legal duty to assist V but does not take the steps that the duty requires.

Ratio: The question is whether D failed to take the reasonable steps required by the particular duty and circumstances. The law does not ordinarily require D to take unreasonable or impossible steps.

Application: Identify what D knew, what they were capable of doing, the seriousness and immediacy of the danger, and what reasonable action was available. Then consider whether the omission caused the prohibited result, if the offence requires one.