Introduction
In the criminal law of England and Wales, a fundamental principle is that for a person to be found guilty of a crime, the prosecution must prove both the actus reus (the guilty act) and the mens rea (the guilty mind). The actus reus is typically a positive, voluntary act. The law has traditionally been reluctant to impose criminal liability for a failure to act, known as an omission. This position is often summarised by the statement that there is no general duty to be a 'Good Samaritan'. However, this general rule is not absolute. Over time, the courts and Parliament have established several exceptions where a failure to act can give rise to criminal liability. This essay will examine the general rule against liability for omissions before exploring the key exceptions where a legal duty to act is recognised. It will demonstrate that while the default position remains one of non-intervention, the categories of duty have expanded, reflecting a judicial and societal recognition of responsibility in specific circumstances.
The General Rule: No Liability for Omissions
The traditional common law position is that a person cannot be held criminally liable for failing to act to prevent harm to another or to assist someone in peril. This principle is rooted in the idea of individual autonomy and liberty; the law should not compel people to act in a certain way, but rather punish them for wrongful actions they have chosen to perform. An early illustration of this can be found in the case of R v Smith (William) (1826) 2 C&P 449, where the court confirmed that neglecting to act, without a legal duty to do so, would not give rise to criminal liability.
The rationale behind this reluctance is multi-faceted. Firstly, it protects individual freedom by not compelling citizens to undertake potentially dangerous or burdensome rescues. Secondly, it avoids difficult questions of causation and allocation of responsibility – if a person is drowning and a crowd of people watch, who is to be held responsible for the death? The law therefore draws a line between actively causing harm (a commission) and passively allowing harm to occur (an omission). While the moral distinction may be questionable, the legal distinction has provided a clear, if sometimes harsh, starting point. As noted by one judge, ‘it is no crime to be a priest or a Levite in the parable of the good Samaritan’ (Fenwick, 2011).
The Exceptions: Imposing a Duty to Act
Despite the general rule, the law does not ignore situations where a failure to act is considered sufficiently blameworthy to warrant criminal sanction. A duty to act can arise in several ways, and where such a duty exists, a failure to fulfil it can constitute the actus reus of a crime.
Statutory Duty
The most straightforward exception is where a statute explicitly imposes a duty to act. Parliament can create offences of omission. 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, which is often committed by an omission, such as failing to provide food or medical care. In these cases, the statute clearly defines the required action, and the failure to perform it is criminalised.
Contractual Duty
A duty to act can be imposed by a contract of employment. If an individual is contracted to perform a specific duty, a failure to do so can lead to criminal liability if it endangers the life or safety of others. The classic case is R v Pittwood (1902) 19 TLR 37. The defendant was a railway gatekeeper who was employed to operate a level crossing gate. He went for his lunch break, forgetting to close the gate. As a result, a person crossing the railway line was hit by a train and killed. The court held that his contractual duty to his employer to protect the public created a legal duty to the person killed. His omission to close the gate was a breach of this duty, and he was convicted of gross negligence manslaughter.
Special Relationship
The courts have recognised that certain special relationships automatically create a duty to act. The most established of these is the duty of a parent to care for their child. In R v Gibbins and Proctor (1918) 13 Cr App R 134, a father and his partner deliberately neglected the man’s daughter by failing to feed her, leading to her death from starvation. Both were convicted of murder. The court found that the father had a clear duty to his child, and his partner, by living with him and accepting money for food, had also assumed a duty of care. This principle extends to other family relationships, such as the duty between spouses, as seen in R v Hood [2003] EWCA Crim 2772.
Voluntary Assumption of Care
A duty to act can also arise when a person voluntarily assumes responsibility for the care of another who is unable to care for themselves due to age, illness, or infirmity. If that person then fails to provide adequate care, they can be held liable. In R v Instan [1893] 1 QB 450, the defendant lived with her elderly aunt, who became ill and unable to feed herself or seek medical help. The defendant continued to live in the house and eat the food her aunt had paid for but did not provide any care, and the aunt died. The court held that the defendant had voluntarily accepted a duty of care, which she had breached.
This principle was famously and controversially applied in R v Stone and Dobinson [1977] QB 354. Stone and Dobinson, a couple described as being of low intelligence, took in Stone’s anorexic sister, Fanny. Fanny’s condition deteriorated, and she eventually became bed-ridden, but the couple made only minimal and ineffective attempts to get help. Fanny died in squalor. The Court of Appeal upheld their convictions for gross negligence manslaughter, holding that they had voluntarily undertaken a duty of care when they took Fanny in, and had breached that duty by failing to secure medical assistance. The case is often criticised for imposing a high standard of care on individuals who were arguably incapable of meeting it (Ormerod and Laird, 2018).
Creation of a Dangerous Situation
A significant development in the law of omissions is the duty to act to avert a danger that one has created. This is often referred to as the Miller principle, from the House of Lords decision in R v Miller [1983] 2 AC 161. Miller, a squatter, fell asleep on a mattress while smoking a cigarette. He awoke to find the mattress smouldering but did nothing to put the fire out, simply moving to another room. The house caught fire. The House of Lords held that his failure to act could constitute the actus reus of arson. Lord Diplock stated that when a person creates a dangerous situation, they come under a duty to take reasonable steps to rectify it.
This principle was further extended in R v Evans [2009] EWCA Crim 650. The defendant, Evans, supplied her 16-year-old half-sister, Carly, with heroin. Carly self-injected and then showed symptoms of an overdose. Evans and her mother did not seek medical help, fearing they would get into trouble. Instead, they put Carly to bed, hoping she would recover. She died during the night. The Court of Appeal held that Evans had a duty of care because she had "created or contributed to the creation of a state of affairs which she knew, or ought reasonably to have known, had become life-threatening". This extended the Miller principle by establishing that a duty can arise from contributing to the dangerous situation, not just creating it directly, and that the duty arises when the defendant becomes aware of the danger to life.
Public Office
Finally, a duty to act can be imposed on those who hold a public office. In R v Dytham [1979] QB 722, a police officer stood and watched a man being kicked to death outside a nightclub. He made no move to intervene or summon assistance. He was convicted of the common law offence of misconduct in a public office. The court held that his position as a police officer placed him under a duty to protect the public and keep the peace, a duty which he had wilfully neglected.
Conclusion
The criminal law in England and Wales maintains a general rule against liability for omissions, preserving a distinction between acting and failing to act. This approach prioritises individual liberty and avoids the complexities of enforcing a general duty to rescue. However, the law is not blind to situations where a failure to act is morally and legally indefensible. Through the creation of specific exceptions, the courts and Parliament have carved out a series of duties based on statute, contract, relationship, assumption of care, and the creation of danger. The expansion of these duties, particularly in cases like Evans, suggests a gradual shift towards recognising a form of social responsibility, where an individual who is involved in creating a risk to another cannot simply walk away. While the law has not embraced a general 'Good Samaritan' duty, it has developed a framework that, in specific circumstances, punishes those who fail to act when there is a clear legal reason why they should have.
References
Fenwick, H. (2011) ‘The right to life, the value of life and the ‘medically-assisted death’’, in H. Fenwick, G. Phillipson, and A. Williams (eds.) Text, Cases and Materials on Public Law and Human Rights. 3rd edn. Routledge.
Ormerod, D. and Laird, K. (2018) Smith, Hogan, and Ormerod's Criminal Law. 15th edn. Oxford University Press.
R v Dytham [1979] QB 722
R v Evans (Gemma) [2009] EWCA Crim 650
R v Gibbins and Proctor (1918) 13 Cr App R 134
R v Hood [2003] EWCA Crim 2772
R v Instan [1893] 1 QB 450
R v Miller [1983] 2 AC 161
R v Pittwood (1902) 19 TLR 37
R v Smith (William) (1826) 2 C&P 449
R v Stone and Dobinson [1977] QB 354
