TITLE: Actus Reus - Omissions

Author: Jeremy Liew Xian Ren

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

Introduction Legal duty to act Positive points Satisfactory?

In every crime there are 2 main elements: (1) actus reus and (2) 2. Duty arising from holding a public office 3. Duty arising out of a dangerous situation  Provides blameworthiness and accountability - Criminal omissions can be
mens rea.  Working for the government or holding a  Dangerous situation created by the accused detrimental to society, by criminalizing omissions and imposing a legal duty, it

 Actus reus - guilty act (physical element)
 Mens rea - guilty mind (mental element)
 An actus reus can be: (i) an act, (ii) an omission or (iii) an event
What is an omission? Omitting - refraining, abstaining, ignoring –
John Kleinig (1986)
General Rule: no liability for omissions
o 2 exceptions to this;
position of responsibility and authority
R v Dytham (1979)– a police officer saw a
murder but omitted to do anything. His omission
led to him being convicted for ‘misconduct in a
public office’
R v Evans (2009) – The accused had supplied
heroin to the victim where the victim died from
overdosing. The accused created a dangerous
situation by providing the heroin and her omission
to help resulted in the death of the victim
R v Miller (1983) - The accused started a fire with
a lit cigarette whilst asleep. He woke up and
enhances accountability for their inactions. (Giles Bayliss - 2013)
 Raises public standards – Imposing legal duties sets a higher standard for the
public to follow and creates a deterrent factor, thus creating a safer society
which benefits the public at large. (Giles Bayliss - 2013)
Negative points
 Unjustified Criminalisation - European Scholars have criticized the legal duty
approach as in some cases like Instan and Stone and Dobinson, where the
criminalization is unfair. Under EU law, a lesser punishment would be imposed

(i) Express offences (ii) Legal duty to act
Express Offences
 Usually laid down in an Act of Parliament
 Expressly states that an omission can amount to an offence
S.1 Children and Young Persons Act 1933 – parents/guardians
who fail to give food, shelter, medical help and clothing to a
child under their care can amount to an offence.
S.6(5) Road Traffic Act – omitting to give a breath sample for a
breath test when needed can result in being arrested by a
constable.
Legal duty to act
o Common law has developed situations where there is a legal
duty to act :- (1) duty arising out of contract (2) duty arising
from holding a public office (3) duty arising out of a
dangerous situation (4) duty arising out of a special
relationship (5) duty arising from volunteering
noticing the fire, he moved to another room to instead. (Jacobo Dopico Gómez-Aller - 2008)
 Limited scope - only when there's a legal duty imposed under law can an
sleep. The fire then spread to the whole house
omission be criminalized, very limited: contrast with EU position - duty to aid
causing severe damage. He was charged for arson
those in peril as long as they don't endanger themselves (English law has no
Example of Arson as the dangerous situation was created by him.
Good Samaritan Law)
Legal duty to act
4. Duty arising out of a special relationship
 Various special relationships can give rise to a legal duty to act Proposed Reforms
R v Gibbins and Proctor (1918) – Parents have a legal duty towards their child. A  Good Samaritan law - individuals are required to aid those in danger, so long
father and his girlfriend omitted to feed the child, resulting in death. as it does not endanger themselves (Graham Hughes – 1958)
R v Chattaway (1922) – Where a child attains the age of majority and is unable to Example:- French Penal Code: Art 223(6) - A person must provide assistance
look after themselves, parent’s still have a legal duty. where it does not endanger themselves.
Airedale NHS Trust v Bland (1993) – Doctor and patient: doctors have a duty to act  In France, failure to provide aid in this instance can amount to a criminal
in the best interest of the patient and to ensure the patient is taken care of. Here it was offence, as well as a civil wrong
in the best interest of the patient to end his life. • Benefits: Increases society’s moral standards as more aid will be provided to
R v Smith (1826) – A brother does owe a legal duty to his other brother. those who are injured.
• Issues: Infringement of individual autonomy/freedom – Good Samaritan Law
can be infringe individual liberty, forcing citizens to help is wrong. The

1. Duty arising out of contract distinction between legal duties and moral issues should remain that way.

 A legal duty to act can arise out of
an express contract or an implied
contract
R v Instan (1893) – The accused omitted to assist her sick aunt.
Since they lived together for their mutual benefit, an implied
contract was found and so a legal duty was established.
R v Pittwood (1902) – The accused omitted to close the railway
gate resulting in a collision between a train and a horse cart,
where an individual died. As he was contractually employed to
operate the gate, he had a legal duty to act and the accused was
charged for gross negligence manslaugther.
5. Duty arising from volunteering
 Legal duty to those who voluntarily assume responsibility
R v Stone and Dobinson (1977)– A couple was found guilty for the death of
Stone’s sister as they had assumed responsibility by taking her in to their
home, although they were unable to take care of themselves.
R v Nicholls – The accused (grandmother) was said to have a legal duty
towards her granddaughter as she was taken in to her home by the accused and
had assumed responsibility over her.
R v Gibbins and Proctor – Although Proctor had no blood ties with the child,
she had assumed responsibility over her partner’s child as Gibbins gave her
money to buy food for the child.
(Kathleen M. Ridolfi – 2000) (Cath Crosby – 2018) (Fletcher G P – 1976)
Conclusion: Good Samaritan Law should be imposed in English Law but the
state should seek to encourage citizens to provide assistance, this can be done by
providing some incentive such as monetary compensation to those who provide
assistance, instead of criminalising this issue which will lead to more unjustified
criminalisation.
Bayliss G, ‘Omission: when does failing to act amount to a crime?’ (2013) 9(1) A-level
Law Review 1
Crosby C, ‘Gross Negligence Manslaughter by Omission: The Emergence of a Good
Samaritan Law?’ (2018) 82 JCL 127
Fletcher G P, ‘Criminal Omissions: Some Perspectives’ (1976) 24(4) The American
Journal of Comparative Law 703
Gómez-Aller J D, ‘Criminal Omissions: A European Perspective’ (2008) 11(3) New Criminal
Law Review: An International and Interdisciplinary Journal 419
Hughes G, ‘Criminal Omissions’ (1958) 67(4) Yale LJ 590
Kleinig J, ‘Criminal Liability for Failures to Act’(1986) 49(3) Law and Contemporary
Problems 161