2.6Omissions
For some crimes, the actus reus may not be an act but, rather, a failure to act in circumstances where there is a duty to do so. JF Stephen, in his Digest of the Criminal Law, 3rd edn (Clowes and Sons, 1887), explained that generally there is no ‘Good Samaritan law’ as an omission will not usually result in criminal liability. JF Stephen gives the following famous example:
A sees B drowning and is able to save him by holding out his hand. A abstains from doing so in order that B may be drowned, and B is drowned. A has committed no offence.
In this case, although A may have failed to save B, he did no positive act to cause B’s death. In general, therefore, there can ordinarily be no liability for a failure (or omission) to act unless the law specifically imposes such a duty upon a particular person.
2.6.1The position in other jurisdictions and conflicting views
In some jurisdictions, such as France and Germany, an individual would always be under a duty to act in what have become known as ‘easy rescue’ situations (French Penal Code: Article 63; German Penal Code: Article 323c). Easy rescue situations are those where the defendant can save another individual without placing himself in danger. English law, however, does not recognise such ‘easy rescue’ situations.
2.6.1.1The ‘social responsibility’ view
Ashworth (‘The Scope of Liability for Omissions’ (1989) 105 LQR 424) argues that where the rescue of the victim would not pose a danger to the defendant, then liability should always be imposed for a failure to act, even where there is no pre-existing duty to act. Ashworth labels this as a ‘social responsibility’ on the part of citizens. You may find this approach sensible and worth investing in. Indeed, Cobb (‘Compulsory Care Giving: Some Thoughts on Relational Feminism, the Ethics of Care and Omission Liability’ (2008) 39 Cam LR 11) argues that a general ‘citizenship duty’ which would focus on a mandated reasonable action to prevent harm to one’s fellow citizens would be ‘fairer, clearer and simpler’. See also Ashworth and Steiner, ‘Criminal Omissions and Public Duties: The French Experience’ (1990) 10 LS 152.
This approach, however, is not short of difficulties, with two prominent questions needing to be answered:
(1) Who decides when intervening would or would not pose a danger?
(2) Is the test for such a decision subjective (looking at what the individual thought at the time) or objective (looking at what the reasonable man would do in that situation)?
2.6.1.2The ‘conventional’ view
In addition to those two questions, Williams (‘Criminal Omissions – The Conventional View’ (1991) 107 LQR 86) counters Ashworth’s arguments by defending ‘individualism’ and making a key moral distinction between ‘killing and letting die’. Williams conforms to the conventional view that there is no social responsibility placed on a stranger to act and save another, and criminal law resources ought to be focused on those individuals who actively seek to harm, through positive actions, another. With a lack of ‘fair warning’ to citizens as to how far their duty extends, Williams contends that the conventional view ought to be maintained.
2.6.2Classifying omissions
Fletcher in his text, Rethinking Criminal Law (Little Brown, 1978) distinguishes two forms of liability for omissions:
•‘breach of duty to act’; and
•‘commission by omission’.
According to Fletcher, where liability may be imposed for breach of a statutory obligation to act, this is known as a ‘breach of duty to act’. Specifically, this relates to conduct crimes where there is no requirement for the incidence of harm to be proved. The second type relates to result crimes which Fletcher labels ‘commission by omission’. This is where liability is imposed ‘for failing to intervene, when necessary, to prevent the occurrence of a serious harm such as death or the destruction of property’.
This classification is useful and provides a strong starting point for omission liability. However, you will find that the law of omissions is generally classified now as determinative on the facts of the particular case. For example, we do not speak of a general ‘breach of a duty to act’ but, rather, of a breach of a contractual duty to act (see R v Pittwood (1902) 19 TLR 37 below). Likewise, we do not speak of a general ‘commission by omission’, but, rather, we look towards specific established duties such as those created by relationship or dependency. Fletcher’s classification remains helpful in a given case; however, it is the author’s contention that omissions require no general classification and instead the focus should be on the specific facts of the case at hand.
2.6.3Imposition of a duty
It will be useful at this stage to return to the example given by Stephen J and adapt the facts to observe whether the requirement of A to save B is changed.
Table 2.5Adapting Stephen J’s facts
| Facts: What if … | Is there a legal duty? |
| B was a child? | |
| A was B’s parent or legal guardian? | |
| A was B’s teacher out on a school field trip? | |
| A was a qualified lifeguard at a swimming pool? | |
| A could not swim and was scared of water? |
These are all excellent questions to ask and naturally lead us on to the circumstances when a failure to act may result in criminal liability. Once we have considered the law on omissions, come back to this table and consider whether an obligation exists.
There are several established circumstances where there is a duty to act. These duties to act are often imposed by statute, by a legal contract/voluntary agreement or by a relationship. Quite simply, if there is no such duty, there can be no liability for an omission (though see below at 2.6.4.7 for a discussion of extending the duties).
Before we proceed to the established duties, it is essential that we first make clear that there are several requirements for a failure to act to give rise to criminal liability:
(a) the defendant’s offence must be capable of commission by omission;
(b) the defendant must have a legally recognised duty to act; and
(c) the defendant must have unreasonably failed to act on that duty.
The above list is quite self-explanatory, but it will be useful to delve into the conditions in greater detail.
2.6.3.1Capable of commission
First, there are some crimes that are not capable of being committed by an omission. For example, the offences of robbery and burglary require the use of force or fear of force and entry into a building or part of a building respectively. Naturally, neither of these conditions can be met by a failure to act; thus the offences cannot be committed by omission. In addition, as the name suggests, unlawful act manslaughter cannot be committed by omission