For someone to be liable for a crime by omitting to act, there must be a duty to act. There is not general duty to act, but the law imposes a duty to act in a number of situations. Firstly, if there is a contractual duty, such as that in R v Pittwood 1902. Pittwood was a signalman employed by a railway company to look after a level crossing and ensure the gate was shut when a train was due. He was convicted of manslaughter when a person was killed as a result of him omitting to close the gate. The court rejected his argument that his duty was owed simply to his employer, and held that a duty is held to anyone who may be affected by a breach of contract, not just the other parties to the contract.
There is also a contractual duty held by such posts as doctors, the emergency services and lifeguards. This can be seen in ‘Adamako 1994’ where an anaesthetist failed to notice that breathing equipment had been disconnected, causing the death of the patient, and he was convicted of manslaughter.
There is also a duty in a parental, family or equivalent relationship, for example, ‘R v Gibbins and proctor 1918’ where Gibbins, the father of his 7 year old daughter, and his lover, proctor deliberately starved the child to death. They were both convicted of murder and the court held that as her father, Gibbins owed Nelly a duty of care, and also that Proctor had undertaken a duty to her. There is also a duty owed to spouses (smith 1979). In this kind of situation it is unclear how far the courts may go in developing obligations in other relationships, such as between friends, or sharers of accommodation etc. There is little direct authority.
An omission may also lead to conviction through statutes, for example s.170 ‘Road Traffic Act.’ States that, ‘If, in a case where this section applies by virtue of subsection (1)(a) above, the driver of a motor vehicle does not at the time of the accident produce such a certificate of insurance or security…’ Many statutes make it an offence to fail to do something, creating a duty to act.
‘R v Dytham (1978)’ shows another situation where there is a duty to act, whilst acting as an officer of justice. Dytham was a police officer who failed to intervene and carry out his duty to stop the fight. He was convicted of wilfully omitting to take any steps to carry out his duty.
There may also be a voluntary assumption of responsibility such as that in ‘R v Stone and Dobinson (1977)’ The defendants assumed a duty of care to Stone’s sister, fanny, who was living with them and was suffering from anorexia nervosa. Their feeble attempts to help her amounted to gross negligence which was sufficient for a manslaughter conviction. The problem here is that Stone and Dobinson actually did their best for Fanny, but due to their low intelligence this was not good enough, so they may not have deserved their conviction, as they did not have the social awareness to appreciate their duty to act, or even how to go about acting.
Lastly, the creation of a dangerous situation, whether deliberately or accidentally creates a duty to act. The defendant then has mens rea when they fail to prevent the harm they have caused. In ‘R v Miller (1982) a vagrant who was squatting in a house had been smoking and set fire to a mattress, but failed to put out the fire and went to another room. The fire caused £800 worth of criminal damage an D was convicted of arson. The court of Appeal held that if the risks had been obvious to most people then the defendant will be liable, despite the fact that he might not have foreseen this.
In the case of Euthanasia, which is a very controversial point, it is only murder when it is a positive act, such as the decision in Diane Pretty v UK (2002). Diane Pretty wanted was suffering from motor neurone disease and wanted her husband to assist her to die so sought a High Court declaration to do so, which was rejected. She took this to the European Court of Human Rights, but it was held that because this was a positive act it would always incur liability.
However, a duty to act may be brought to an end, either because the other person requests it , or because it would be in their best interests. The case of ‘Airedale National Health Service Trust v Bland (1993)’ illustrates this. It was decided here that discontinuing life support was an omission but not unlawful as it was not a breach of duty to the patient. However, this seems unfair to those such as Diane Pretty, who, it could be said that terminating her life would have been ‘in her best interest,’ but as it was a positive act this was not possible. It was also held in ‘Ms B v Hospital Trust (2002)’ that the hospital is under a duty to follow patients instructions as to treatment even where no treatment might lead to death. A problem arises here of when to distinguish between allowing a person to die rather than to keep them alive by life support, and the current principles in this area may be unsatisfactory.
In some cases, continuing acts may mean that an omission may make D liable, such as in R v Kaitamaki (1985) where the victim had at first consented to having sex with the defendant but had withdrew her consent. It was held that the actus reus of rape is a continuing act and D was liable for the offence when he failed to stop when consent was withdraw. The same principle can be seen in ‘Fagan (1969)’ where D’s mens rea was superimposed over the continuing act.
One question as to the principle of omission in criminal law is that of morality, and it is assumed that the law should not intervene with questions of morality. It should be said that if the law was altered to create a general duty to act, problems may well be caused as attempts to help may actually do more harm than good. However, it may not be right that society is not required to help another in need.
There are some proposals for reform of the law on omissions, and the law commission, in relation to offences against the person has suggested that liability for omission should be limited to serious offences, such as murder, torture, kidnapping and abduction etc. They also decided not to try to limit common law duties to act which at present give rise to liability for omissions.
