Explain how an omission can be the basis of the actus reus of a crime.

Generally an omission can't form the basis of the actus reus of an offence, there are exceptions. A duty can arise by way of a special relationship, a contractual duty and certain statutory provisions where liability is imposed in some circumstances.

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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.

 

As with most general rules there are exceptions. At common law there are some situations where the failure to act does give rise to criminal liability. Parliament can also impose a duty to act in an Act of Parliament such as the Children and Young Persons Act 1933 which made it a criminal offence for a person over 16 failing to look after a child under 16, so an omission is part of the actus reus of that crime.

 

We will consider how an omission can be the basis of the actus reus of a crime looking at the situations in turn.

 

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.

 

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.

 

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 quashing of a conviction of manslaughter (R v Khan (1998)). The 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 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.

 

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.

 

There is a requirement that persons in a public position have a responsibility to take certain action. In the case of R v Dytham [1979], 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 offence can be committed by an omission.

 

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.

 

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 and therefore not the actus reus – it was the subsequent failure on his part that gave rise to the actus reus through his omission of failing to act in a dangerous situation which he started.

 

In Fagan v MPC (1969) the defendant was directed by a police officer to pull over at the kerb and stop his car. The defendant did so but drove over the policeman's foot, the defendant maintained that this was accidental. This may well have been the case but when he was told to remove the car he swore at the officer and switched off the engine. The issue as to whether the actus reus coincided with the mens rea was raised at an appeal against conviction for assaulting a police officer in the execution of his duty.

 

The defendant argued that there lacked coincidence because, when he drove on to the policeman's foot, that is to say at the time of the actus reus, there was no mens rea as the incident was purely an accident. The subsequent act of failing to remove the car, doing nothing in other words, meant that when he formed the mens rea the actus reus was missing because it amounted to an omission, and as such could not give rise to liability. This is so even if the failure to remove the car was intentional.

 

Nor could coincidence occur later when the defendant switched off the engine and kept the car on the officer's foot because this amounted to a separate act and an omission. An omission ordinarily does not give rise to criminal liability.

 

The Court of Appeal took the view that the subsequent failure to remove the vehicle was not a separate act but a continuous act and not an omission. The result being that it was easier to see that at some point in the defendant's conduct and actions he must have acted in such a way to cause harm to the police officer – so there would have been coincidence at some point. The Court of Appeal upheld the conviction stating that by driving on the policeman's foot and staying on his foot meant it formed part of a continuing act.

 

Finally there are a number of statutory provisions where a liability is imposed in particular circumstances. 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.

 

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Law Report: Manslaughter by omission requires duty to act

This essay looks at the exceptions to the general rule that an omission can't form the basis of the actus reus of an offence. It looks at the special relationship, such as that of a parent and child, which will give rise to a duty, the extent of other relationships which will also give rise to a duty and the exceptions. The cases of Gibbins v Proctor (1918), R v Instan (1893), R v Khan (1998) and R v Stone and Dobinson (1977) are used to illustrate these circumstances.

 

A contractual duty to act may give rise to a criminal liability and the case of R v Pittwood (1902) illustrates this very well.

 

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, for this we look to R v Miller (1983) as an example. The case of Fagan v MPC (1969) is also examined.

 

Examples are given of statutory provisions where a liability is imposed in particular circumstances.

 

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Omission