In criminal law, an act, or actus reus, is a necessary element of an offence. Generally, this involves a positive action by the defendant. An omission, by contrast, is a failure to act. The traditional position of English law is that there is no general duty to act to prevent harm, meaning an omission cannot usually form the actus reus of a crime. This principle reflects a view of individual liberty, which does not require citizens to be ‘good Samaritans’. However, this is not an absolute rule. The law has developed several exceptions where a person is under a specific, legally recognised duty to act. If a person subject to such a duty fails to act, and this failure causes the prohibited harm, their omission can be sufficient for criminal liability. This response will define an omission and explain three key examples where a duty to act arises: a duty arising from a special relationship, a duty from the voluntary assumption of care, and a duty from the creation of a dangerous situation.
1. Duty Arising from a Special Relationship
One of the most established exceptions is where a duty to act is imposed due to a special relationship between the defendant and the victim, such as that of a parent to their child. Parents are under a legal duty to care for their children, which includes providing food, shelter, and medical assistance. A failure to fulfil this duty can lead to criminal liability if it results in harm.
The case of R v Gibbins and Proctor (1918) 13 Cr App R 134 provides a clear illustration. In this case, a man and his partner deliberately failed to feed the man’s seven-year-old daughter, Nelly, who subsequently died of starvation. They were both convicted of murder. The court held that the father, Gibbins, had a duty to his child arising directly from their relationship. His partner, Proctor, was also found to have a duty because she lived with Gibbins and had accepted money for food, thereby undertaking a duty to care for the child. Their failure to provide food was an omission that satisfied the actus reus of murder, as the necessary intention to cause serious harm was also present. This case demonstrates that the special relationship of parent and child imposes a clear and powerful duty to act.
2. Duty Arising from a Voluntary Assumption of Care
A duty to act can also be created when an individual voluntarily assumes responsibility for the care of another person who is unable to look after themselves due to age, illness, or infirmity. Once this duty has been undertaken, a failure to perform it can result in liability.
The leading case is R v Stone and Dobinson [1977] QB 354. The defendants, who were described as having low intelligence, took in Stone’s sister, Fanny, to live with them as a lodger. Fanny suffered from anorexia and her health deteriorated to the point where she became bedridden and helpless. The defendants made some inadequate attempts to care for her, such as trying to find her doctor, but ultimately failed to secure proper medical help. Fanny died in appalling conditions. The Court of Appeal upheld their convictions for gross negligence manslaughter. The court ruled that by taking her into their home and making some efforts to care for her, they had voluntarily assumed a duty of care. Their failure to either care for her adequately or summon help when she became helpless was a breach of that duty, which caused her death. This case shows that a duty can be assumed by conduct, even without a formal undertaking.
3. Duty Arising from the Creation of a Dangerous Situation
A third exception arises where a person creates a dangerous situation. If they do so, they are then placed under a duty to take reasonable steps to avert or minimise the danger they have created. A failure to take such steps can constitute the actus reus of a crime.
This principle was established by the House of Lords in R v Miller [1983] 2 AC 161. The defendant, a homeless man squatting in a house, fell asleep on a mattress while holding a lit cigarette. He woke up to find the mattress smouldering. Instead of taking action to put the fire out or call for help, he simply moved to another room and went back to sleep. The house subsequently caught fire. Miller was convicted of arson. The House of Lords held that when he created the dangerous situation (the smouldering mattress) and became aware of it, he came under a duty to act. His failure to take any steps to counteract the danger was an omission that could form the actus reus of arson. This ‘duty theory’ means that an accidental creation of danger can be followed by a culpable omission if the defendant fails to remedy the situation.
In conclusion, an omission is a failure to act. While the general principle in English law is that a person is not liable for failing to act, this is subject to important exceptions. As the examples of special relationships, voluntary assumption of care, and the creation of a dangerous situation demonstrate, the law will impose a duty to act in certain circumstances. Where such a duty exists, an omission can be sufficient to establish the actus reus of a criminal offence, holding the defendant liable for the consequences of their inaction.
References
- R v Gibbins and Proctor (1918) 13 Cr App R 134.
- R v Miller [1983] 2 AC 161.
- R v Stone and Dobinson [1977] QB 354.
