Introduction
In the criminal law of England and Wales, the traditional view is that liability is founded upon a positive, voluntary act. The actus reus, or guilty act, of an offence is typically defined in a way that requires the defendant to have done something. Consequently, the law is generally reluctant to impose criminal liability for a failure to act, known as an omission. This position reflects a respect for individual autonomy, suggesting that citizens should not be compelled to act in a particular way. However, this is not an absolute rule. This essay will explain the general principle regarding omissions and then outline the key exceptions where the courts have recognised a legal duty to act, a breach of which can result in criminal liability.
The General Rule: No Liability for Omissions
The starting point is that there is no general duty to intervene or assist others. An individual can, without legal consequence, witness a person drowning in a shallow pool of water and do nothing to help, provided they have not created the danger or do not have a pre-existing duty towards the victim. This approach is sometimes described as distinguishing between 'killing' and 'letting die'. The law punishes the former but not, in most circumstances, the latter. This reluctance to criminalise omissions is rooted in the principle of individual liberty and the difficulty in defining the scope of such a duty. For instance, if multiple people witnessed an event, who would be responsible for acting? Despite these arguments, the courts have carved out significant exceptions where a failure to act can be punished.
Exceptions: The Duty to Act
Criminal liability for an omission can only arise where the law recognises that the defendant was under a legal duty to act. These duties can arise in several different situations.
A duty can be imposed by statute. For example, section 170 of the Road Traffic Act 1988 makes it an offence for a driver involved in an accident to fail to stop and report it. Similarly, the Children and Young Persons Act 1933 creates an offence of wilful neglect of a child by a person with responsibility for them.
A duty may also arise from a contract. In R v Pittwood (1902), a railway gatekeeper was convicted of manslaughter when he failed to close the gate, leading to a person being killed by a train. His contractual duty was to protect the public using the crossing, and his failure to do so was a breach of that duty, which was sufficient to establish the actus reus of manslaughter.
A duty can also arise from a special relationship, such as that between a parent and child. In R v Gibbins and Proctor (1918), a father and his partner were convicted of murder after they deliberately starved the father's child to death. The court held that the father had a clear duty to care for his child, and his partner, by living with the father and accepting money for food, had also assumed a duty of care.
Furthermore, a person who voluntarily assumes responsibility for another person will be under a duty to continue to care for them. This was the principle in R v Stone and Dobinson [1977]. The defendants, who were of low intelligence, took in Stone’s elderly and infirm sister. Her health declined, and she eventually died in appalling conditions. The defendants were convicted of manslaughter because, having taken her in, they had assumed a duty of care towards her and had been grossly negligent in the performance of that duty.
Finally, a duty to act can be created where a person has caused or contributed to a dangerous situation. In R v Miller [1983], a squatter accidentally set fire to a mattress with a cigarette. He did nothing to extinguish the fire, simply moving to another room. The house caught fire, and he was convicted of arson. The House of Lords held that when a person creates a dangerous situation, they are under a duty to take reasonable steps to resolve it. This principle was later extended in R v Evans [2009] to situations where a person contributes to a state of affairs they knew, or ought reasonably to have known, had become life-threatening.
Conclusion
In summary, the English criminal law's position on liability for omissions is a compromise. While it maintains the general principle that a person should not be held liable for failing to act, it imposes a duty to act in specific circumstances where a relationship of responsibility exists between the defendant and the victim, or where the defendant has created a risk. The established exceptions, such as contractual duties, familial relationships, voluntary assumption of care, and the creation of a dangerous situation, cover many scenarios where most people would feel a moral obligation to intervene. The law therefore does not impose a general duty to be a 'Good Samaritan', but it does ensure that those who have a clear and recognised responsibility towards others cannot simply fail to act and escape criminal liability for the consequences.
References
- R v Evans [2009] EWCA Crim 650.
- R v Gibbins and Proctor (1918) 13 Cr App R 134.
- R v Miller [1983] 2 AC 161.
- R v Pittwood (1902) 19 TLR 37.
- R v Stone and Dobinson [1977] QB 354.
- Children and Young Persons Act 1933.
- Road Traffic Act 1988.
