Introduction
In the criminal law of England and Wales, a core principle is that liability requires a guilty act (the actus reus) and a guilty mind (the mens rea). The actus reus is typically a positive act. Generally, the law does not punish individuals for their failure to act, or an omission. This reluctance to impose liability for omissions is often justified by reference to individual liberty and the avoidance of creating overly broad and burdensome legal duties. However, this general principle is not absolute. Over time, the courts have established a series of exceptions, creating duties to act in specific circumstances. This essay will discuss the current law on criminal liability for omissions, outlining the general rule and the key exceptions. It will then evaluate the extent to which the law requires reform, particularly considering the arguments for and against the introduction of a general duty to assist those in peril. This essay will argue that while the current law, developed on a case-by-case basis, can appear fragmented, the existing exceptions cover the most culpable failures to act. Therefore, although the arguments for a general duty of rescue have moral weight, the practical difficulties associated with such a reform mean that it is not urgently required.
The General Rule: No Liability for Omissions
The traditional starting point is that there is no general duty to act to prevent harm. An individual can, without fear of legal sanction, watch a person drown in a shallow puddle without intervening, provided they have no pre-existing legal duty towards that person (Simester et al., 2019). This position reflects a ‘conventional view’ of the criminal law, which prioritises individual autonomy and freedom from state interference (Williams, 1991). The law is seen as a tool to prohibit harmful actions, not to compel virtuous ones. To impose a general duty to act would, from this perspective, be an excessive infringement upon personal liberty, forcing citizens to become unwilling rescuers and potentially placing them in difficult or even dangerous situations. Furthermore, practical problems arise, such as the ‘why me?’ dilemma: if a large crowd witnesses an incident, who among them has the duty to act? Punishing omissions could also create complex issues of causation, as it can be difficult to prove that a failure to act directly caused the resulting harm.
The Exceptions: Where a Duty to Act Arises
Despite the general rule, the law recognises that in certain situations, a failure to act can be just as blameworthy as a positive act. The courts have therefore carved out a number of exceptions where a legal duty to act exists, the breach of which can constitute the actus reus of a crime.
A duty to act can be imposed by statute. There are numerous examples, though they are often regulatory in nature. For instance, section 170 of the Road Traffic Act 1988 imposes a duty on a driver involved in an accident to stop and provide their details. Similarly, the Terrorism Act 2000 makes it an offence to fail to disclose information that could help prevent an act of terrorism.
A duty can also arise from a contract. In R v Pittwood (1902) 19 TLR 37, a railway gatekeeper was convicted of manslaughter after he failed to close the gate when a train was approaching, leading to a fatal collision. His contractual duty was to protect the public using the level crossing, and his failure to do so was held to be a sufficient basis for criminal liability.
A legal duty is also recognised where there is a special relationship between the defendant and the victim, most commonly within families. The leading case is R v Gibbins and Proctor (1918) 13 Cr App R 134, where a father and his partner were convicted of the murder of his child after they deliberately starved her to death. The court held that the father had a clear duty of care due to their relationship, and his partner had also assumed such a duty by accepting money for the child's food.
Perhaps the most discussed category is the duty that arises from a voluntary assumption of care for another person who cannot care for themselves. In R v Instan [1893] 1 QB 450, the defendant lived with her elderly aunt, who became fatally ill with gangrene. The defendant continued to live in the house and eat the aunt’s food but provided no care or medical assistance. Her conviction for manslaughter was upheld on the basis that she had a moral obligation, which the law recognised as a legal duty, to care for her aunt. This principle was controversially applied in R v Stone and Dobinson [1977] QB 354. The defendants, who were of low intelligence, took in Stone’s sister, Fanny, as a lodger. Fanny suffered from anorexia and eventually became bedridden and died in appalling conditions. The defendants’ limited attempts to help her were ineffectual. The Court of Appeal upheld their manslaughter convictions, finding they had voluntarily assumed a duty of care for Fanny and had been grossly negligent in performing it. The case has been criticised for imposing a duty on individuals who were arguably incapable of meeting the required standard of care (Ormerod and Laird, 2021).
Finally, a duty to act can be created where the defendant has caused or contributed to a dangerous situation. In R v Miller [1983] 2 AC 161, a squatter accidentally started a fire with his cigarette but, upon waking and seeing the fire, did nothing other than move to another room. The House of Lords held that when a person creates a state of affairs which they know or ought to know has become dangerous, a duty arises to take reasonable steps to counteract that danger. His failure to do so constituted the actus reus of arson. This principle was later extended in R v Evans (Gemma) [2009] EWCA Crim 650. The defendant, Evans, supplied her 16-year-old half-sister with heroin, which she self-administered. When the sister showed symptoms of an overdose, Evans and her mother failed to seek medical help for fear of getting into trouble. The sister died. The Court of Appeal held that Evans had a duty of care because she had contributed to creating a "state of affairs" which she knew, or ought reasonably to have known, had become life-threatening. This case significantly broadened the Miller principle, showing the courts' willingness to expand duty categories to secure convictions in morally compelling cases.
The Need for Reform: A General Duty of Rescue?
The piecemeal development of these exceptions has led to calls for reform. The primary proposal is the introduction of a general statutory duty of 'easy rescue', often termed a ‘Good Samaritan’ law, similar to those found in many European countries like France and Germany. Proponents, such as Andrew Ashworth, argue from a ‘social responsibility’ perspective, contending that the law should reflect and encourage a sense of civic duty and community (Ashworth, 1989). From this viewpoint, it is morally indefensible for the law to permit a person to stand by and watch another die when a simple, risk-free action—like making a phone call—could save them. It is argued that such a law would not be overly burdensome, as it would only apply where a rescue is ‘easy’ and poses no risk to the rescuer.
However, there are powerful arguments against such a reform. Critics return to the conventional view, arguing that a general duty of rescue would be a serious infringement on individual liberty (Williams, 1991). It would move the criminal law from forbidding harmful acts to compelling specific conduct, blurring the line between legal and moral duties. There are also significant practical objections. Defining what constitutes an ‘easy rescue’ would be difficult, potentially leading to legal uncertainty. The problem of diffusion of responsibility in a crowd remains: who is liable when many people fail to act? This could result in either no one being prosecuted or the arbitrary selection of a single individual to make an example of. Such a law could also encourage ill-judged and dangerous interventions by well-meaning but untrained individuals, potentially making a bad situation worse.
Furthermore, it is arguable that the current law, especially after the decision in Evans, already covers the most blameworthy omissions. The established exceptions target situations where there is a clear and direct link between the defendant and the victim, such as a family relationship, an assumed duty, or the creation of danger. These are situations where society's expectation of action is at its highest. A general duty, by contrast, would apply to complete strangers, where the moral link is far weaker. The incremental development of the law by the courts allows for flexibility and ensures that duties are only imposed in deserving cases, avoiding the blunt instrument of a broad, statutory duty. Therefore, it can be argued that the current framework, while not perfectly coherent, strikes a reasonable balance between protecting individual autonomy and punishing blameworthy inaction.
Conclusion
The law on omissions in England and Wales operates through a series of exceptions to the general rule that a failure to act does not attract criminal liability. These exceptions, covering duties arising from statute, contract, relationships, assumed care, and the creation of danger, have been developed by the judiciary to ensure that those who are clearly at fault for failing to prevent harm can be held responsible. While this case-by-case development has created a complex and sometimes criticised body of law, it has targeted the most egregious cases of inaction.
The debate over whether to introduce a general duty of easy rescue highlights a fundamental tension in criminal law between the principles of individual autonomy and social responsibility. While the moral case for a ‘Good Samaritan’ law is strong, the practical challenges of drafting, definition, and enforcement are substantial. The current legal framework, particularly with the expansion of duty in cases like R v Evans (Gemma), is arguably sufficient to deal with the most culpable omissions. A radical statutory reform, therefore, does not seem urgently required. The common law's cautious, incremental approach may be better suited to navigating this difficult area, ensuring that duties are imposed only where it is fair and just to do so, without creating the uncertainty and potential for injustice that a broader duty might entail.
References
Ashworth, A. (1989) 'The Scope of Criminal Liability for Omissions'. Law Quarterly Review, 105(3), pp. 424-459.
Ormerod, D. and Laird, K. (2021) Smith, Hogan, and Ormerod's Criminal Law. 16th edn. Oxford: Oxford University Press.
Simester, A., Spencer, J.R., Sullivan, G.R. and Virgo, G. (2019) Simester and Sullivan's Criminal Law: Theory and Doctrine. 7th edn. Oxford: Hart Publishing.
Williams, G. (1991) 'Criminal Omissions – the Conventional View'. Law Quarterly Review, 107(1), pp. 86-98.
Cases
R v Evans (Gemma) [2009] EWCA Crim 650
R v Gibbins and Proctor (1918) 13 Cr App R 134
R v Instan [1893] 1 QB 450
R v Miller [1983] 2 AC 161
R v Pittwood (1902) 19 TLR 37
R v Stone and Dobinson [1977] QB 354
Legislation
Road Traffic Act 1988
Terrorism Act 2000
