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Principles - actus reus - omissions

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Stephen's Digest of the Criminal Law (3rd ed., 1887)

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"A sees B drowning and is able to save him by holding out his hand. A abstains from doing so in order that B may be drowned, and B is drowned. A has committed no offence."

this is the basis in law for saying that the actus reus of a crime must be a positive act, and not an omission to act.

 

Although "A" may have failed to save "B", he did no positive act to cause "B's" death.

In some countries, "A" would always be under a duty to act in such a situation. Under English law no such a duty arises unless there are certain specific situations.

 

The conventional view is that there are several offences (such as assaults or battery) which cannot be committed by omission, although this is doubted by DPP v Santana-Bermudez (2003) DC.

 

Exceptions

Normally, the criminal law does not require a person to act to prevent harm or wrongdoing, or prevent a crime being committed

Exceptions include a constable who has a duty to prevent crime Crouther’s Case (1599)

And, it is an offence for a person to refuse without reasonable excuse to assist in quelling a breach of the peace when called upon by a constable R v Brown (1841).

A person does not commit a crime or become a party to it solely because he might reasonably have prevented it.

So, in Rice v Connolly [1966] D refused to answer questions from the police and it was held he had not ‘wilfully obstructed’ a police officer even though this may have hampered his inquiries. 

All exceptions require a ‘duty’.

The exceptions all require that the defendant be under a duty to act. This duty can be one imposed either by common law or by statute.

 

Parents, nurses, etc., have a duty.

Such duty often exists when the defendant is a parent, nurse, doctor, police officer, lifeguard or other employed persons.

 

Duty arising from statute

'Direct' liability; examples of offences created by statute that make an omission culpable.

The Children and Young Persons Act 1933 s 1 (as amended) makes omissions culpable by a person over 16 failing to look after a child under 16, so an omission is part of the actus reus of that crime.

 

It only covers children under 16 and specifically refers to the failure to provide or obtain adequate food, clothing or medical care. 
It is argued that it could also include other forms of neglect, such as failure to rescue from drowning in circumstances of the kind described by Stephen.

 

Under s 170 Road Traffic Act 1988 failing to stop at a road accident is a criminal offence. The omission to stop is part of the actus reus.
 

Under breathalyser law failing to provide a breath sample or a specimen for analysis s6 Road Traffic Act 1988, is also an crime of omission, and under other sections so is failing to give a name and address.

 

Where an order made under an Act of Parliament required a corporation to do certain works, if D fails to comply, he could commit an offence, R v Birmingham and Gloucester Rly Co (1842).

 

Failure to keep proper accounts or business records, where these are required by law, is a criminal offence under the Companies Act 1985, the Insolvency Act 1986 or the Value Added Tax Act 1994.

These examples have an omission in their statutory definition.

This type of liability for omissions is called direct liability.

 

Duty arising from special relationships

When not specified by statute, failing to act in a particular way (an omission) will give rise to criminal liability only where a duty to act arises.

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This is known as a 'derivative liability'

This sort of duty is exceptional and the criminal law does not ordinarily require a person to be "his brother’s keeper".

 

In addition to the statutory requirement, common law creates a duty on a parent to act for the welfare of his child and, if harm is caused to the child by his failure to act, he may be criminally liable for the resulting harm, there are many examples e.g. R v Bubb & Hook (1850) and R v Gibbins and Proctor (1918) CCA.

Neglect leading to death may lead to liability for manslaughter by gross negligence.

This possibility was confirmed in R v Downes (1875) and R v Lowe [1973], although wilful neglect of a child does not automatically give rise to liability for manslaughter merely because death results (Lowe).

A parent who deliberately starves a child to death may be guilty of murder R v Gibbins & Proctor (1918).

(Manslaughter and murder are common law offences).

 

Assumption of care for another  

There is no statutory duty to care or assist a person over the age of 16, but there can be a common law duty.

 

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In R v Shepherd (1862) it was held that the parents of an 18-year-old 'entirely emancipated' daughter were under no special duty to care for her, similarly in R v Smith (1826). 

 

However, the common law recognises that a duty may arise in a family relationship, for example where a couple live together as husband and wife R v Smith (1979), or where a child continues to live, and is dependent upon, his parents even after becoming an adult R v Chattaway (1922).

 

Also, if a person voluntarily undertakes to care for another who is unable to care for himself as a result of age, illness or other infirmity, that person may thereby incur a duty to discharge that undertaking, at least until such time as he hands it over to someone else.

 

The duty not to omit to save the life of someone for whom D had a duty of care was established in R v Instan [1893]

Thus a woman who assumes responsibility for the care of another’s child may be liable in respect of a failure to provide food R v Gibbins and Proctor (1918) CCA, or to provide medical aid R v Lee & Parkes (1917) CCA.

 

The principle laid down in R v Instan was applied and extended in R v Stone & Dobinson [1977] where the occupier of a house and the woman with whom he was living were both convicted of manslaughter for failing to provide nursing care for the occupier’s sister who lodged with them.

 

In such circumstances there is no need to prove that the accused had been obliged by law to undertake the particular duty, or that he was bound by contract to care for the other; it is sufficient that he voluntarily undertook the care of another in circumstances in which that other was unable to fend for himself.

 

Official, contractual or public duties 

A person may in some cases incur criminal liability through failure to discharge his official duties or contractual obligations.

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The requisite mens rea, is also required.

In R v Pittwood (1902) a railway level-crossing keeper forgot to close the gates and a carter was killed by a train, D was convicted of manslaughter.

 

D's liability can be based on the breach of a duty of care to users of the crossing, which his employers paid him to discharge, and on which the users of the crossing relied. cf. Smith (1869).

 

Neglect of duty - an omission - by a police officer was examined in Dytham [1979]. D stood aside and watched as a man was beaten to death outside a nightclub. 

 

Although D was not charged with manslaughter, it is submitted that a conviction for manslaughter might be possible on such facts.

 

The principle in Pittwood would extend to liability for a lifeguard at a swimming pool.

 

Duty to avert a danger of one's own making

If a person creates a dangerous situation through his own fault, he may be under a duty to take reasonable steps to avert that danger, and may therefore incur criminal liability for failing to do so.

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In R v Miller [1983] HL D who accidentally set fire to a mattress and did nothing to put it out was guilty of arson (criminal damage by fire).

 

In Khan [1998] D supplied a girl with heroin on which she accidentally overdosed, and then left her to die. The actus reus of the offence was the omission to summon medical assistance and not the supply of heroin.

 

In DPP vSantana-Bermudez (2003) DC D allowed a police officer to search him knowing there was a sharp needle in his pocket and which stabbed the police officer.  D had “created a danger by an act … that act was a continuing act”.

 

Failure to provide medical treatment

Refusal of consent to medical treatment absolves medical practitioners of their duty to act.

Doctors and hospital authorities have a duty to provide medical care for their patients, and an omission to discharge that duty may sometimes involve criminal liability.
 

This duty may be terminated if the patient refuses to accept medical treatment, even a life-saving amputation or transfusion.  In Re B (adult: refusal of medical treatment) [2002] Ms B's wish not be kept alive by artificial ventilation was complied with causing her death.
 

In fact the medical staff, far from being under a duty to provide that treatment, would ordinarily be acting unlawfully if they ignored his wishes Re C (Adult: Refusal of Treatment) [1994].

 

Where minors are concerned, the High Court may exercise its wardship jurisdiction so as to override parental refusal of consent Re B (A Minor) (Wardship: Medical Treatment) [1981] or refusal of consent by the minor himself Re W (A Minor) (Medical Treatment: Court's Jurisdiction) [1993].

 

Even in respect of adults, the court may sometimes hold that a refusal of consent to treatment is vitiated by lack of capacity or by undue influence Re T (Adult: Refusal of Treatment) [1993] and doctors must then provide treatment, in accordance with that patient's best interests.

 

In acute emergencies, they may sometimes need to act without consent and doctors may need to act against parental wishes, or risk prosecution (together with the parents) for manslaughter cf. Senior [1899].

 

Withholding treatment in the "best interests of the patient"

In certain circumstances a doctor may be absolved of his duty to keep his patient alive, this was famously recognised in Airedale NHS Trust v Bland [1993] HL; the medical team were allowed to discontinue feeding Bland, an omission.

 

Bland was followed in Frenchay Healthcare NHS Trust v S [1994] CA.

Similar issues can arise in respect of the very elderly or in respect of babies born with very severe handicaps, this arose in Re J [1991], and the nursing staff were not required to resuscitate him (an omission).

 

In Re A (Children) (2000) CA similar principles applied, although this case did not create precedent and was decided on the particular facts.

 

Practical and financial considerations  

Even apart from the question of whether treatment would be in "the patient's best interests", it is recognised that financial or manpower constraints on the health service must come into consideration.

 

It is clearly not practicable for the NHS to provide intensive forms of medical care (such as major surgery) to every patient, of whatever age, whose life might possibly be prolonged by it.  See the case of Sage

 

The Mental Capacity Act 2005

 

Advance decision  - advance directive - a living will. 

Under Section 24 of The Mental Capacity Act 2005 (into force on 1 October) the law allows the ending of life of a patient by medical intervention. Bluntly, whilst euthanasia remains illegal it is possible to kill patients by starving them to death or ceasing medical treatment.


“Living wills”, in which patients can set down what medical treatment they wish to be given, or not given, is enforceable in law.  They are also known as "advance decisions" or "advance directives".

The new Office of the Public Guardian investigates complaints about the law. The Court of Protection (as part of the High Court) settles disputes between parties.

If a doctor were to treat a patient against their wishes it will be an unlawful act and he/she could be prosecuted or face a claim for compensation.

The Islamic Medical Association has followed the Catholic Church’s earlier response in saying that its doctors should break the law, rather than comply with so-called ‘living wills’.
 

Offences for which omissions cannot be the basis of liability

The conventional view is that some offences appear to be capable of commission only by positive acts.

 

However, the view that no mere omission, however, can constitute a battery is doubted, following DPP v Santana-Bermudez (2003) DC

 

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The offence of acting with intent to prevent the apprehension of an offender, contrary to the Criminal Law Act 1967, s. 4 is an example.

 

Crimes of assault or battery arguably come into this category. This was the view of the Divisional Court in Fagan v Metropolitan Police Commissioner [1969].
 

D's conviction was upheld on the basis that his conduct amounted to a continuing act, rather than an innocent act followed by a deliberate omission to rectify it.

Continuing Act principle:
So, it doesn't matter if you
refer the act immediately causing harm as one of commission or omission if that act forms part of a course of conduct, and it follows that the accused will be criminally liable in respect of his acts, whether they are of commission or omission.

 

The Continuing Act Principle was the basis for the conviction for rape in Kaitamaki [1984]

Omissions cannot be the basis of liability for 'doing acts'  for example failing to supply a key to a tenant, required by statute Ahmad (1986)

 

However, the courts have not been consistent in interpreting references to 'acts' as necessarily excluding omissions.
 

In Yuthiwattana (1984) it was held that a landlord's omission to replace a lost key could be an 'act' of harassment against a tenant.
 

In Speck [1977] for example, it was held that an omission (to remove the hand of an 8 year-old from D's private parts) could amount to an 'act' of gross indecency with a child.

 

Offences under the Forgery and Counterfeiting Act 1981, are also only culpable if there is an act and not an omission.

 

It would seem that, in conjunction with the appropriate mens rea, most offences against property, including theft and dishonest handling, may be committed by omission.

So, an "appropriation", which includes ‘keeping property as owner’ is an omission and therefore theft, Theft Act 1968 s 3 (1).

R v Pitchley (1973) CA

 

In Firth a doctor was convicted of deceiving a hospital contrary to s2 Theft Act 1978 when he failed to inform the hospital authority that some of his patients were being treated privately and were not NHS patents.

 

In R v Miller [1983] HL the House of Lords made it clear that in statutory crimes actus reus includes omissions.

Per curiam.
(i) It would be conducive to clarity of analysis of the ingredients of a crime that is created by statute to consider and refer to the conduct of the defendant and his state of mind at the time of that conduct, instead of making use of the expressions actus reus and mens rea.

 

The habit of lawyers of referring to the "actus reus" suggestive as it is of action rather than inaction, is no doubt responsible for any erroneous notion that failure to act cannot give rise to criminal liability in English law.

 

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