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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. |
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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.
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Exceptions |
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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). |
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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. |
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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.
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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.
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Duty arising from statute |
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'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.
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Duty arising from special relationships |
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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.
This is known as a 'derivative liability'
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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. |
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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).
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Assumption of care for another |
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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.
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Official, contractual or public duties |
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A
person may in some cases incur criminal liability through failure to
discharge his official duties or contractual obligations.
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.
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Duty to avert a danger of one's own making |
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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”.
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Failure to provide medical treatment |
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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].
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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.
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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
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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’.
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Offences for which omissions cannot be the basis of liability |
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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.
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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.
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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.
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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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