ACTUS REUS – OMISSION

Taylor’s Law School, Faculty of Business and Law, Taylor’s University

INTRODUCTION A DUTY TO ACT CAN ARISE IN A NUMBER OF SITUATIONS

ACTUS REUS: the conduct element of the offence. The actus reus
1. EXPRESS OFFENCES/STATUTORY DUTIES
describes what the defendant must be proved to have done, in
: where the definition of an offence actually
what circumstances, and with what consequences in order to be
specifies an omission to act. These arise
guilty of a crime. It is is often thought of as referring to the act
where a statute imposes a duty on
the accused committed.
someone to do something
In some cases, the actus reus can also include a failure to act or
an omission by the accused
EXAMPLES:
S7(6) Road Traffic Act 1972 - it is a criminal
An omission to act (failure to do something) is a less common
offence to fail to supply a specimen of
basis of criminal liability than a positive act. As a general rule in
breath when required to do so in specified
English Criminal Law, criminal liability does not attach to
circumstances by a constable in uniform.
omissions, which means that a person is not liable for failing to
S38B Terrorism Act 2000 - it is an offence
act, even if another person's life is in danger. However, this
to fail to disclose information which might
general rule is subject to an important exception. You can be
materially assist in preventing an act of
guilty of omission if you are under a legal duty to act.
terrorism
S170 Road Traffic Act 1988 - it is an
The circumstances in which you have a legal duty to intervene:
offence to fail to report a motor accident
where the definition of an offence is expressed in terms
which refer to an omission
in other offences, unless otherwise precluded, where D was
4. ASSUMPTION OF RESPONSIBILITY /
under a legal duty to act and omitted to fulfil that duty.
DUTY ARISING VOLUNTARILY
The legal duties, besides express offences that will be further : A duty to act arises in cases where the
discussed include: defendant has assumed responsibility for
Contractual duties the wellbeing of the victim, or has
Duty arising from holding a Public Office voluntarily undertaken the care of another
Assumption of responsibility / Duty arising voluntarily who is unable to care for himself
Duty to remedy a dangerous situation from own creation
Duty arising from relationship Stone and Dobinson (1977) - the victim
came to live with the defendants, and it
was concluded that they had assumed a
duty to care for the victim on the ground
that she was living in their house, and they
had made inadequate efforts to care for
her. In the circumstances, they were
obliged either to summon help or else to
care for her themselves.
2. CONTRACTUAL DUTIES
: A duty to act may arise as the result of a
contractual obligation
A person may be required by a contract
to act in a particular way. For example, a
person employed to ensure that
members of the public are not
endangered by a piece of machinery
could face criminal prosecution if they
fail to act in a way which protects people
Pittwood (1902) - a railway-crossing
keeper’s failure to close the crossing gate
in breach of his contract of employment
led to his conviction for manslaughter
after a person was killed when a train hit
a hay cart.
5. CREATION OF DANGER
The Miller Principle : if someone
accidentally creates a dangerous situation,
once aware of this, they are then fixed
with a common law duty to act by taking
reasonable steps to prevent harm.
Miller (1983) - A man fell asleep holding a
cigarette. He awoke, saw the fire, but
moved away. His conviction for arson was
upheld on the basis that having started
the fire he was under a duty to put it out
and in walking away he breached the duty.
This principle extended in Evans (2009) -
to encompass those who may not have
created a dangerous situation themselves
but are found to have contributed to it.
3. DUTY ARISING FROM HOLDING
A PUBLIC OFFICE
: A duty to act may arise to protect
another from harm if he holds a
public office which requires him to
do so.
Curtis (1885) - a relieving officer of
a local authority was held liable for
manslaughter when he had failed to
provide medical assistance for a
destitute person.
Dytham (1979) - a uniformed police
officer was convicted of the
common law offence of misconduct
in a public office as he had failed to
intervene when he saw a man being
kicked to death some 30 yards away.
6. DUTY ARISING FROM
RELATIONSHIP
: A duty to act may arise
automatically from special (familial)
relationships. (ie. between spouses,
and between parent and child.)
Gibbins and Proctor (1918) - A
parent who fails to feed his or her
child, or who fails to get medical
attention for a child, with the result
that the child dies can be convicted
of murder or manslaughter
Emery (1993) - A parent who stands
by and lets another person harm his
or her child might be guilty of an
offence.

IS THE LAW SATISFACTORY?

CRITICISMS ON THE RULES GOVERNING OMISSION
The distinction between an act and an omission is important when supporting the current English
criminal law. At first sight, there should be no particular concerns about such distinction. An
omission is simply a failure to act: the absence of a particular movement; while an act is a
movement. Unfortunately it is not as straight-forward as that.
Illustrations:
R v Speck (1977) - A child sat on a man's lap and innocently placed her hand on his genital area. He
found this arousing and did nothing to move her hand. He was found to have committed a battery,
but the court did not make clear whether the defendant was being punished for an act or an
omission while under a duty to act.
Airedale NHS Trust v Bland (1993) - A man suffering from a persistent vegetative state was kept
alive by a life-support machine. The legality of turning the machine off was considered by the
House of Lords. They held that switching off the life support machine was an omission, rather than
an act.
Practical issues in punishing omission : A wide range of people may be prosecuted. For example, if
there is a car crash on the motorway and a person is injured, is every car driver that passes meant
to stop for help or telephone the police?
The creation of 'bad Samaritan laws' would lead to too much intervention when a person is injured,
and that may in fact hinder rescue attempts. Another concern is that if people feel compelled to
assist by virtue of the criminal law against their own judgment, they may in fact end up causing
more harm than good and hurt those they are trying to help or impede the state services.
The primary argument in favour of omissions liability is that it reinforces the obligations of social
responsibility, or moral. As Steven Heyman puts it:
"The state is a community whose ends include the protection of its members from criminal violence
and other serious harm. Every citizen has a fundamental right to protection by the community. In
return, the individual has an obligation to assist in performing this function by acting when necessary
to rescue a fellow citizen in danger."
As opposed to the critics' views that omissions liability limits personal freedom and autonomy right,
Ashworth has argued that under the social responsibility view: “each member of society is valued
intrinsically, and the value of one citizen’s life is generally greater than the value of another citizen’s
temporary freedom”. It is pointed out that point out that compared with the impact on the autonomy
of the person who dies after not being rescued, that on the defendant is minimal.
However, an important question that is often asked is whether it is appropriate to allow morality to
influence the criminal law. Supporters of omissions liability have a ready riposte and that is that
liability is not imposed simply because the defendant has behaved immorally, but rather because the
defendant's failure to comply with their legal duty has caused a harm to the victim. What this
argument does emphasize is that great care must be taken not to impose criminal liability simply as a
result of the moral disgust at a person who fails to help another in peril.

The current overriding principle, is that one should not be held accountable for something one
does not do, as to rule otherwise would be an unreasonable limitation on personal freedom. The
objection to crirninalizing omissions is that it infringes liberty to a much greater extent than
penalizing acts, because by punishing omissions, the law leaves the citizen with only one thing they
can do to comply with the law.
Joel Feinberg , opposing the extension of the law on omission, contended that 'the most basic
autonomy right is the right to decide how to live one's life, in particular how to make critical life
decisions'.
Feinberg has rightly argued that an omission is only properly applied to a failure to do something
someone has a duty to do.
In order to balance the right of autonomy and liberty as well as criminalizing omissions, it is suggested
that limits in time and space must be applied and these limits will be applied through the
requirements of an obvious risk of death, gross carelessness and causation. The requirement of a
duty to act as imposed by the current English law are likely to be seen as sufficient to protect society.

CONCLUSION REFERENCES
Books
Michael Moore:
Card, Cross and Jones Criminal Law by Richard Card
'Drowning a child makes the world a worse place, whereas not preventing its drowning only fails to improve the world'. Criminal Law by Jonathan Herring

With the passing of the Human Rights Act 1998, the right to life guaranteed by Article 2 of the European Convention must also Journal Articles
be borne in mind. This imposes a positive obligation on the State which would be breached if the criminal law did not Andrew Ashworth (1989)
adequately protect this right. In other words, by potentially ignoring deaths caused by an omission, Article 2 could be violated. Michael Moore (1993)
The right to life is so fundamental that it should have additional protection over and above the right to, for example, property Steven Heyman (1994)
and this protection currently covers the people treated in common law as owing a duty to act in the common law. Gerhard Werle (2007)
English criminal law offers only one certainty: that if there is no duty, there is no crime by omission. This desire to issue just Vincent Chiao (2009)
rulings must be carefully balanced with the fundamental legal principles of individual liberty and autonomy. Legislative attempts Catherine Elliott (2010)
to impose a duty to help others may be well-meaning, but to be effective, they would have to be no more broad in scope than Jessie Ingle (2016)
the current state of the common law. Only those most heinous omissions should be criminalised, and even then only in Lenneke Sprik (2017)
situations where the person in question had a clear duty to act, be it as a result of their behaviour, their profession or their Cath Crosby (2018)
close relationship to those affected by their omission. In conclusion, the law of omissions is criticised and although many would
argue that it is not satisfactory and requires some sense of reform, it does however highlight and allow for many situations in
which liability is posed through omission and enforces them. It seems that English criminal law does make satisfactory provision
where a person fails to prevent harm when he could have done so.