act and omission in criminal law

In the above scenario, A has committed no offence as his failure to act failed to fulfill the matters of voluntariness, causation and attribution, which are essential for establishing criminal liabilities:-

1. If A had not seen B drowning, A has not conducted himself in any way that could justifiably be used to attribute criminal liability to A.  In order words, the minimum requirement of ‘voluntary conduct’ is not satisfied and thus no actus reus arose in the incident;

2. Even if A was present at the scene and saw B drowning, it appears that all the factual circumstances leading to B’s death by drowning were already in place and was not by A’s failure to act, no matter it was voluntary or not.

However, there are exceptions to the general rule.  Firstly, an offence may explicitly impose liability for an omission or failure to act, i.e. this creates a statutory duty to act inevitably.  In s.170 of Road Traffic Act 1988, it is an offence to fail to stop and give various details in connection with a road traffic accident involving personal injury or property damage.  “Assisting in the retention” of stolen goods in s.22(1) of the Theft Act 19682 is an other example of particular words in the definition of an offence have been interpreted and applied to failure to act.

1. Digest of the Criminal Law, 4th edition, 1887
2. See Pitchley (1973) 57 Cr App R 30

Some of the Hong Kong laws expressly impose a statutory duty to act in a particular manner.  For example, s.80(1) of Inland Revenue Ordinance3  stipulates that a failure to file a tax return is an offence.  According to s.56(3)(6) of Road Traffic Ordinance4, criminal liability will arise if the individual fails to report a motor vehicle accident.

Criminal liability may also be imposed for an omission or failure to act under certain ordinance in Hong Kong:

• s.37 of the Offences Against the Person Ordinance5 stipulates that it is an offence for a “person over the age of 16 years who has the custody, charge or care of any child or young person under that age … [to] … willfully neglect”;

• According to s.38 of the Road Traffic Ordinance, “careless driving” is the neglect itself which gives rise to criminal liability.

Apart from statutory duties, criminal liabilities may still arise in the circumstances that the accused owes a specific legal duty owed to the victim.  There are several circumstances in which the duty will arise, although it appears open to the courts whether to impose a duty to act or not.

1. Contractual duties.

A duty to act may arise as the result of a contractual obligation.  In Pittwood6, a railroad crossing guard failed to shut the gate onto the railroad was a breach of his contract of employment, which led to a conviction for manslaughter after a person was killed when a train hit a hay cart.

3. Cap. 112
4. Cap. 374
5. Cap. 212
6. R v Pittwood (1902) 19 TLR 37

2. Special relation of care

A person who is in a special relationship of care for another person such as a parent and child or a doctor and patient, is bound to provide appropriate care.  Therefore, any failure of doing so may lead to conviction of criminal liability.  In Gibbons and Proctor7, a father and the woman with whom he was living were guilty of murder for deliberately withholding food from his child.  Of course, nowadays there are specific obligations placed on parents in such situations8.

3. Duty of a public office

In Dytham9, a police constable on duty was held to have committed an offence when he knowingly failed to intervene when the victim was ejected from a nightclub and beaten to death by a “bouncer”.

4. Assumption of responsibility

A duty to act may arise if the accused has assumed responsibility for the wellbeing of the victim.  This not only inferred from a blood relationship, but may also arise where the accused has undertaken to care fro another person.  In Instan10, the accused was convicted for manslaughter as she lived with her infirm and elderly aunt and was found that her neglect of her aunt has accelerated the latter’s death.

7. (1918) 13 Cr App R 134
8. see Children and Young Persons Act 1933
9. [1979]
10. [1893] 1 QB 450

In Stone and Dobinson11, the Court of Appeal ruled that both defendants had assumed a duty to care for the victim:

“… The jury were entitled to find that the duty has been assumed. They were entitled to conclude that once Fanny became helplessly infirm … [Stone and Dobinson] were … obliged either to summon help or else to care for Fanny themselves.”

Therefore, the two defendants were convicted manslaughter.

5. Creation of dangerous situation

The court has found a duty to act where the accused has created a dangerous situation and then failed to prevent a harm occurring as a result.  In Miller12, the Court of Appeal ruled that the accused was guilty of criminal damage by arson when, having accidentally set fire to a mattress, he left the room without attempting to extinguish the fire or get any help, with the result that the house was damaged.  Lord Diplock, in the House of Lord, agreed that in these circumstances a duty to act could be implied.  He stated that the actus reus might legitimately include “conduct which consists of failing to take measures that lie within one’s power to counteract a danger that one has oneself created, if at the time of such conduct one’s state of mind is such as constitutes a necessary ingredients of the offence.”

Another example of creation of danger could be illustrated by the case of DPP v Santana-Bermudez13.  In this case, the court upheld the defendant’s conviction of an assault occasioning actual bodily harm even though he had done no act which directly caused an injury because he had exposed the police officer to a risk and had failed to warn her of it.

11. R v Stone and Dobinson [1977] 1 QB 354
12. R v Miller [1983] 2 AC 161
13. [2004] Crim LR 230

We should also see the case of Airedale NHS Trust v Bland14.  The House of Lord in this case had to deal with the issue of the duty on doctors to continue to treat a patient in persistent vegetative state for whom there was no prospect of a recovery of any degree of consciousness.  The House of Lord dismissed the appeal and viewed the proposed conduct leading to victim’s death by discontinuing life support and medical support, as being in nature of an omission, not an act.  Lord Goff stated that:

“It is true that it may be difficult to describe what the doctor actually does as an omission … In each case, the doctor is simply allowing his patient to die in the sense that he is desisting from taking a step which might, in certain circumstances, prevent his patient from dying as a result of a pre-existing condition; and as a matter of general principle an omission such as this will not be unlawful unless it constitutes a breach of duty to the patient.”

14. [1993] AC 789

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Differentiation between Act and Omission in Criminal Law

Literally, we understand that an act is an “active” conduct while an omission is an “passive” one.  Most crimes do not include the specific word “act” in their definition.  Instead, words are used which imply actions but do not necessarily exclude omissions.  Therefore, it may not be easy to distinguish the concepts of an act and omissions in criminal law.  For example, a person who engages in a deception to obtain property, or who causes grievous bodily injury, usually does so by an act or series of acts, but neither of these words inevitably excludes the possibility of an omission.  Therefore, an omission to act in such circumstances may also convict to a crime.

In Miller, Lord Diplock took a view that much of the apparent difficulty of fitting liability for omissions into the traditional analysis of the actus reus would disappear if a less rigid phrase, such as “course of conduct”, were use instead:

“it is the use of the expression “actus reus” that is liable to mislead, since it suggests that some positive act on the part of the accused in needed to make him guilty of a crime and that a failure or omission to act is insufficient to give rise to criminal liability… the habit of lawyers to talk of “actus reus”, suggestive as it is of action rather than inaction, is responsible for any erroneous notion that failure to act cannot give rise to criminal liability in English law.”

On the other hand, it was held that in Lowe15, manslaughter was held to require proof of an act and it may not be possible to commit an attempt by an omission because s.1 of Criminal Attempts Act 1981 requires “an act more than merely preparatory”.  Moreover, the court held that the words “does acts” in the Protection From Eviction Act 1977 in Ahmad16 could not be satisfied by a failure to do things, i.e. an omission.  There are doubts that whether the offences of assault and battery could be simply committed by an omission.  

15. [1973] QB 702
16. [1986]

The rationale behind the above is that a mere omission itself does not constitute to actus reus, i.e. no criminal liability.  As illustrated in the above, an omission may not satisfy the voluntariness requirement of actus reus or the causation requirement.

Further, as discussed in the previous chapter of the characteristics of omission in criminal law, it is understood that criminal liability will not be established unless there is a special legal duty owed to the victim, no matter it is statutory or contractual.  However, the duty concept is unnecessary to criminal offences committed by acts, i.e. no need to prove whether there is a duty or relationship between the accused and victim when the former killed the latter by a knife.

To understand more whether criminal liability can be established by an omission in certain occasion, the following cases have been reviewed.

In Fagan17, D had accidentally drove onto a policeman’s foot and then, for a short time, refused to drive off.  All the judges thought that the offences could not be committed by an omission but majority of the majority held that there was continuing act of keeping the car on the foot.

In contrast, the court in DPP v K (a minor)18 appears to have assumed that the accused failure to clear acid out of a dryer which he had earlier thrown it was sufficient for liability for an assault occasioning actual bodily injury under s.47 OAPA19 when victim’s face was scarred when using it.

In Santana-Bermudez, it is possible to describe the defendant’s conduct in this case in terms of either an act or omission.  When he put the needles in his pocket, he did an act which created a risk for anyone who should thereafter put a hand into the pocket.  When he gave an assurance to victim that there were no more needles, he did a further act with mens rea.  Even if the first act might be relevant only on the “continuing act” doctrine applied in Fagan, the second act could be regarded as one for the consequences of which he was causally responsible.

17. R v Fagan [1969] 1 QB 439
18. [1990] 1 WLR 1067
19. Offences Against the Person Act 1869

As a result, differentiation between act and omission may not be easily defined as imagine.  In some situations, a conviction of criminal offence could be arisen by either an act or omission.

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Conclusion

Although it is the general rule that criminal liability will not arise for a mere omission, there are exceptions apply.  These exceptions include the statutory duties, the contractual duties, duty arising from special relation of care, duty of a public office, assumption of responsibility and the duty from creation of danger.

Beside the active/passive concept of act and omission, we could basically distinguish them by using different approaches, including the duty between accused/victim.  However, having reviewed several court decisions, criminal offence may be arose by either committing a prohibited act or an omission.  This leads to difficulties in judging the cases as they are all open to the decision of the judges.

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Table of Cases

1. Airedale NHS Trust v Bland [1993] AC 789
2. DPP v K (a minor) [1990] 1 WLR 1067
3. DPP v Santana-Bermudez [2004] Crim LR 230
4. R v Ahmad [1986]
5. R v Dytham [1979]
6. R v Fagan [1969] 1 QB 439
7. R v Gibbons and Proctor (1918) 13 Cr App R 134
8. R v Instan [1893] 1 QB 450
9. R v Lowe [1973] QB 702
10. R v Miller [1983] 2 AC 161
11. R v Pitchley (1973) 57 Cr App R 30
12. R v Pittwood (1902) 19 TLR 37
13. R v Stone and Dobinson [1977] 1 QB 354

Table of Legislations

1. Children and Young Persons Act 1933
2. Criminal Attempts Act 1981
3. Inland Revenue Ordinance (Cap. 112)
4. Offences Against the Person Act 1869
5. Offences Against the Person Ordinance (Cap. 212)
6. Protection From Eviction Act 1977
7. Road Traffic Act 1988
8. Road Traffic Ordinance (Cap. 374)
9. Theft Act 1968

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References

1. Judge Stephen J , Digest of the Criminal Law, 4th edition, 1887
2. Ashworth, The Scope of Criminal Liability for Omissions, 1989
3. Husak, “Does Criminal Liability Require an Act?”, in Duff (ed.), Philosophy and the Criminal Law, 1999
4. Simester, “Why Omissions are Special”, (1995) 1 Legal Studies 311
5. J. Smith, “Liability for Omissions in the Criminal Law” [1984] Legal Studies 88
6. Jonathan Herring, Criminal Law Text, Cases, and Materials, 2004
7. Jonathan Herring, Criminal Law, 4th ed., 2005
8. Michael Jackson, Criminal Law in Hong Kong, 2003