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The components of a criminal offence are the actus reus and the mens rea. The actus reus consists of more than just an act and to say that actus reus means the guilty act is probably an over simplification. It is not enough that the defendant has committed an act. The term is wider in its application and includes all the circumstances surrounding the commission of the offence including, in particular, conduct, results or consequences or states of affairs. In limited circumstances an actus reus can amount to an omission or a state of affairs provided the defendant has to have acted voluntarily. If he or she has no control over their actions he or she can not have committed the actus reus.
The general rule is that an omission cannot form the basis of the actus reus of an offence. Lord Justice Stephen's words are often used to support the supposition that a person is not criminally liable for failing to act when he said: 'It is not a crime to cause death or bodily injury, even intentionally, by any omission'. LJ Stephen went on to use the example of the person seeing someone drowning but doing nothing, yet if they had held out their hand the person would have been saved.
We will consider how an omission can be the basis of the actus reus of a crime looking at the situations in turn starting with examples of situations where statute has created criminal liability.
As with most general rules there are exceptions. An omission or failure to act can arise where there is a duty to act and make a positive act either at common law or under statute, for example Section 1 of The Children and Young Persons Act 1933 made it a criminal offence for a person over 16 to fail to look after a child under 16, so an omission is part of the actus reus of that crime. It is possible to argue that it is usually accepted by the general public that children do need protection and that Parliament has tried to strike the right balance by setting the age of the carer at the age of 16. It may also be possible to argue that in effect the Section 1 of the 1933 Act imposes a positive act of looking after the child as this is the practical effect of the section. It is also worth noting that this is not a general liability that is imposed for omissions. Section 1 of the 1933 act as amended by the Children Act 1989 only imposes criminal responsibility on a person 'having responsibility for' a child. Again it is possible to argue that in so doing Parliament is acknowledging that it would only be right to impose criminal liability upon persons having particular responsibilities for the child so that in effect the law is framed to bite when there is a relationship of carer and child. Many would see the sense of this if criminal liability is concerned. In other words criminal liability here seems to accord with public policy and legal principles which ordinarily require a positive act.
Under section 5 Domestic Violence, Crime and Victims Act 2004 (as amended by the 2012 Act) it is an offence to cause or allow serious physical harm to a child or vulnerable adult. The Act specifically mentions that an unlawful act can include an omission. Section 5 sets out what is effectively a new offence and followed a White Paper 'Justice for all' which addressed domestic violence and which in turn had been based upon the Law Commissions proposals for correcting shortcomings with the law as it stood at that time.
The work of the Commission was intended to address a problem which has been recognised for many years by judges, academics and practitioners, and which has been highlighted by the press, namely, how to effectively apportion responsibility between two persons, who may be parents, for the death or serious injury of a child. Section 5, as now enacted, was drafted so as to overcome the Court of Appeal's rulings of 'no case to answer' in R v Lane and Lane (1986) and restated in R v Aston and Mason (1992). The effect of subsection (2) is now that where, for example, there are two defendants and it is established that one must have caused the death and the other must have failed to take reasonable steps to prevent it, the prosecution does not have to prove which is which.
Parliaments willingness to intervene to protect the public is again illustrated in the case of Greener v DPP(1996) which involved the owner of a Staffordshire Bull Terrier. The defendant left the dog chained in an enclosure in his back garden. The dog managed to bend the clip releasing its chain and it had escaped from the garden and entered a nearby garden where it bit the face of a young child. Section 3(3) of the Dangerous Dogs Act 1991 provides that if the owner of a dog allows it to enter a place which is not a public place but where it is not permitted to be and while it is there it injures any person, he is guilty of an offence. The Divisional Court decided that an offence under s3(3) could be committed by omission. The word "allows" included taking and omitting to take a positive step. In the present case this amounted to the failure to take adequate precautions. It can be seen therefore that the courts are willing to see the Act as a protective measure and this case saw the child as a victim and interpreted the Act so as to impose criminal liability for not taking a positive step. Again the courts have acted consistently with legal principles and public policy requiring a positive act before imposing criminal liability.
Further examples can be found under the Road Traffic Acts with such matters as failing to provide a breath specimen when required; failing to report an accident and failing to provide details to someone entitled to them after an accident. Clearly the requirement is seen as important by Parliament because they created a criminal offence for not complying with the duty to act in the circumstances.
There are other instances where Parliament has made a very real and considered attempt to determine when criminal liability should be incurred. One such offence is in relation to theft under The Theft Act 1968 in the context of appropriation and dishonesty as defined under the Act.
The new law was deliberately drafted in such a way as to be much wider and broader in its application than just dealing with situations covering stealing by taking. We shall see how this may have influenced the court's approach to the issue of dishonesty. The Theft Act 1968 Section 2 deals with dishonesty which is required in terms of the mens rea of the offence of theft. The Act does not define dishonesty as such but it does set out what does not amount to dishonesty or what, in effect, may amount to a defence. It will be appreciated that the law is not now just concerned with whether the defendant took a positive act as in taking a property but is also concerned with the circumstances and state of mind.
Section 2 (1) (a) provides that a person is not dishonest if they honestly believe they have a legal right to the property. This point was tested in the case of R v Holden (1991) which concerned a charge of theft arising out of the defendant taking old tyres from Kwik-Fit. The defendant's defence was that he believed others had taken tyres with the consent of the supervisor but this was contradicted by the evidence of the manager to the effect that it was a disciplinary offence. On appeal the court ruled that is was not necessary for the defendant to show that the belief was reasonable only that he had an honest belief.
Section 2 (1) (b) provides that a person will not be dishonest if they honestly believe the owner would consent if they knew about it. In this regard many will recall class discussions where it is suggested that an example of this situation would be that one student used a fellow student student's law books for revision while the owner was away, in the belief that the other person would consent if they knew of their fellow student's predicament.
Section 2 (1) (c) provides that a person will not be dishonest if they honestly believe the owner cannot be found, having taken reasonable steps to do so – if an honest belief is not held then this is theft and often referred to as stealing by finding. The well known case of R v Small (1988) is a good example. In this case the defendant claimed that he found a car that had been abandoned by its owner with the keys in the ignition. The jury did not accept this account and he was convicted.
Turning to the matter of appropriation, Section 3 of the 1968 Act provided that appropriation occurs when a person assumes the rights of the true owner. Therefore Parliament was making it clear that an honest mistake e.g. failure to return a library book in time was not by itself theft. In R v Pitham and Hehl (1977) the defendant sold items of furniture which belonged to someone else. By offering to sell the furniture there had been an assumption of the rights of an owner and it was held to be an appropriation. It made no difference whether or not the items were removed from the house the defendant had still appropriated it by acting as the owner and offering it for sale.
We will now look at the five common law situations.
A duty can arise by virtue of a special relationship, such as that of a parent and child. This was the case in Gibbins v Proctor (1918) where the child's father and his common law wife neglected to feed the child. The child died of starvation and the couple were found guilty of her murder. Whilst it was widely accepted that the father was obligated to look after his own child, the man's common law partner was also considered liable because, although the child was not her own, she had moved into the house with the father and child and she had received money for food from the man.
As can be seen in some areas of the law, as with theft dealt with above, the law on omissions is more specific as to what acts give rise to criminal liability to cover the wide scope of situations that can be encountered to ensure that protection is afforded where it is needed.
Such special relationships can extend to nieces and aunts as in R v Instan (1893) where a niece failed to get help for her aunt when the aunt's leg became gangrenous. The aunt was unable to get help or feed herself. In the meantime the niece continued to live with her aunt and eat her aunt's food but failed to get help for her or give her any food. The aunt died as a result of the infected leg but the death had been hastened because the niece had failed to provide food or get help. She had neglected her duty of care.
Reliance or voluntary responsibility.
A slightly wider exception is where the defendant has voluntarily accepted responsibility of another. There does not need to be a 'special relationship' as such, merely that the victim comes to rely upon the other and the other fails to act as expected. An example of a voluntary assumption of a duty can be found in the case of R v Stone and Dobinson (1977) where a sister of an elderly brother came to stay with her brother. The brother was living with his housekeeper and friend who was described as ineffectual and inadequate. The brother had problems with his own health including poor hearing and sight but they agreed to take his sister in and agreed that they would look after her.
The sister was obsessed with putting on weight and had mental problems, she became bed ridden and developed bed sores which became infected. The couple failed to get help for the sister and she died. The man and his friend were convicted of manslaughter and the Court of Appeal upheld the conviction because the couple had assumed a duty to look after the sister and they had failed her. In this case a duty to act was found but even so the case went to appeal and in many cases difficulties will arise in establishing the extent of any duty especially where this has been assumed.
There are limitations to these relationships and it has been decided that drug dealers are not under any special duty in respect of their customers, and this resulted in the Court of Appeal quashing of a conviction of manslaughter in R v Khan and (1998). In this case drug dealers had supplied drugs to a young girl who took the drugs and became ill and was in need of medical treatment. The dealers were present but did nothing and the girl died. The girl's death was caused by the amount of drug she used, the dealers had acted unlawfully by supplying the drug but they had not administered the drug to the victim. The duty of a drug dealer to obtain medical help for someone to whom he had supplied drugs was said to be too wide an extension. The court did not rule out the possibility of a duty of care being owed by drug dealers. It was not surprising therefore that some years later in R v Evans (2009) the Court of Appeal found such a duty of care arising from the supply of heroin which in turn created a dangerous situation in which the defendant failed to reduce the risk by not summoning medical assistance which would have saved her sister.
A number of cases illustrate the difficulties the courts face when dealing with assumed responsibilities and some of these have been driving cases. One such case is Mansfield v Weetabix Ltd (1998). The case involved a lorry driver who caused damage to the claimant's shop when he drove his lorry into the premises. However unknown to him he was suffering from a medical condition known as malignant insulinoma which meant that if he did not eat properly his body was deprived of the necessary quantities of glucose that were required for his body to function properly. The claimants sued the driver for breach of his duty to others not to drive dangerously. The court of appeal dismissed the claim on the basis that the driver was not aware of his medical condition and therefore not in breach of his duty to others – it may have been different if he had known of his condition.
Where a person is bound by a contract.
A contractual duty to act may give rise to a criminal liability. This was so in R v Pittwood (1902) where a person was employed by the railway as a gate keeper at a level crossing. He opened the gates to let a cart pass across the line but failed to close them before going off to have his lunch. A short time afterwards a train hit a hay-cart crossing through the already open gates. The person with the hay-cart was killed. The gate keeper was found guilty of manslaughter as a result of failing to act in accordance with his contractual obligations.
We still have a few manned level crossings and liability could still arise from an employee failing to act properly in accordance with their duties, but a more modern example of someone under a duty to act would be a lifeguard. A lifeguard is employed to protect and save lives and most accept that should a lifeguard fail to act upon seeing a person in difficulties in the water, they would be seen as failing to act and therefore liable, even though liability arose from an omission. This scenario is often linked to arguments about the lack of a 'good Samaritan law' in this country so that ordinarily a bystander is not compelled to act and they are not liable if they do not intervene as we have already noted from the words of LJ Stephen. As seen in the examples mentioned earlier Parliament has acted at times to impose liability for omissions but it seems as though they have seen a clear relationship between the persons made liable and the wrong complained of as in section 3 (3) of the Dangerous Dogs Act but Parliament has fallen short of imposing a general liability.
This suggests that the law clearly does provide some protection in cases where Parliament feels that it is only right to do so but in other cases it refrains from creating statutory liability. In arriving at this view it seems as though the courts and Parliament do not have any problem in imposing criminal liability upon persons under a contractual duty and presumably this is seen as fair as it is their job to intervene and help. However this may mean that any risk to the employee must be addressed and managed properly. Recent cases involving incidents of fire-fighters who have been exposed to risk and harm have shown that employers are required to provide safe working practices and equipment.
The difficulties of a good Samaritan law contain a number of issues including the argument that it could expose others to greater risk and this in itself raises questions of fairness. Why do we assume that such intervention would be successful and might such legal obligations make matters worse, for example, moving a person who has suffered a neck injury could cause more problems than leaving them? Furthermore how would liability be determined in large scale disasters? Would it be right to hold members of the public who were first on the scene liable even though some may be injured or dazed themselves? Would it be based upon skill levels such as first aid certificates or occupation?
Some members of the public may feel competent in administering first aid but may feel overwhelmed by numbers of injured depending upon the circumstances e.g. a football match or incident at a theatre.
A more modern application of the principles of contractual duty can be seen in the case of R v Adomako (1994) where an anaesthetist responsible for a patient during an eye operation failed to notice that an oxygen pipe had became disconnected and the patient died. The defendant was convicted of gross negligence manslaughter.
There is a requirement that persons in a public position have a responsibility to take certain action. In the case of R v Dytham , for example, a police officer was held to have been correctly convicted when he stood by during a disturbance in which a man was kicked to death. It was held that the offence of misconduct in a public office can be committed by an omission. To hold persons in a public office liable for omissions could be seen as unfair by expecting more of those who hold such posts, but in some cases the police or others in public office are the last chance for the victims and if they cannot depend upon them who can they turn to? The public are entitled to have high expectations of those in such positions.
Duty to avert a danger of one's own making.
Since R v Miller (1983), the common law has recognised that criminal liability may arise where there is a dangerous situation and this has been caused by the defendant and the defendant has failed to take action to put this right. In the case in question the defendant, Miller, was a squatter who had fallen asleep on a mattress. He had been smoking at the time and he somehow caught the mattress alight. On waking he simply moved to a different room and did nothing to put out the fire. The fire got out of hand and seriously damaged the house. Miller was charged with arson and his conviction was upheld by the House of Lords. Recklessness is sufficient mens rea for arson so, in the absence of evidence of intention, this was considered to be enough for a conviction. Interestingly, lighting a cigarette in a building was not unlawful at the time and therefore not the actus reus – it was his subsequent failure to act that gave rise to the actus reus through his omission of failing to act in a dangerous situation which he started.
In DPP v Santana-Bermudez (2003) a police was injured by a hypodermic needle when she was searching the defendant's pockets. The defendant had failed to tell the police woman that he had a hypodermic needle in one of his coat pockets and the court decided that this amounted to the actus reus of assault causing ABH.
In conclusion therefore we can see that at common law the courts do accept that an omission can give rise to the necessary actus reus for criminal liability to arise but that these situations are limited to the five situations explained above. The situations recognised by the courts are now well known and arguably fair to persons who may find themselves in such circumstances. It is equally clear that in all five situations there must be a duty to act if liability is to be found so this is a benchmark used by the courts when establishing liability. The courts have not sought to impose a general liability (i.e. a good Samaritan law) and there are issues surrounding such a concept concerning the fairness of such a duty in terms of such things as exposing the public to risk themselves, making matters worse, getting in the way of law enforcement or other emergency services etc.
Parliament has intervened at times to protect children or vulnerable people in situations when they may expect care and protection and where there appears to be a need ( S 5 Domestic Violence, Crime and Victims Act 2004 as amended) and this may happen again in the future. In specific circumstances Parliament is willing to create liability by omission. In the case of section 5 the offence imposes a duty upon members of a household to take reasonable steps to protect children or vulnerable adults within that household. There must be foreseeable risk of such harm from other household members. This shows that whilst avoiding the pitfalls of 'joint enterprise', Parliament can create liability where it is justified.
In the meantime, the common law seems settled on the subject but as we know the common law can develop with the needs of society. The case Evans 2009 has shown that the categories of situations where a duty of care arises can be extended in this case to the suppliers of dangerous drugs. In potentially new situations the court of appeal has made it clear that the law and any extension of the law to include new situations should be the subject of a clear direction to the jury.
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