An example of an offence that can be committed by a failure to act is murder, which has long been held to be able to be committed by an omission (R v Gibbins and Proctor (1918) 13 Cr App R 134). Ultimately, deciding whether an offence is capable of commission by omission is a matter of interpretation and such interpretation must be done on a case-by-case basis.
Table 2.6Offences and omissions
| Offences capable of commission by omission | Offences incapable of commission by omission |
| Murder | Theft and robbery |
| Gross negligence manslaughter | Unlawful act manslaughter |
| Actual bodily harm | Burglary |
| Grievous bodily harm | Rape; assault by penetration; sexual assault |
| Criminal damage | Certain offences of fraud |
There are certain offences for which the law is unsure as to whether an omission can satisfy liability. Take, for example, the offence of common assault. At present, there is no judgment which provides that common assault may only be satisfied by an ‘act’. Indeed, Smith (‘Liability for Omissions in Criminal Law’ (1984) 4 LS 88) argues that the need for an act in such circumstances is ‘unnecessary’. In Chapter 9, we consider the cases of Fagan v Metropolitan Police Commissioner [1969] 1 QB 439 and DPP v Santana-Bermudez [2004] Crim LR 471 which may shed some light on this issue or give rise to further problems.
2.6.3.2Legally recognised duty to act
The second factor is that the defendant must have a legal duty to act. There are two concepts here that need to be considered: what do we mean by ‘legal’ duty, and is there a distinction between a duty ‘to act’ and a duty ‘of care’?
Legal duty
We are concerned with a recognised duty to act on the part of the individual, not merely a moral obligation or duty they may consider that they have. This principle is essential to distinguish those individuals whose failure to act is worthy of criminal repercussions and those who are clearly not deserving of such a criminal label. Whilst most individuals would baulk at the idea of a passer-by ignoring a child drowning in a lake, the criminal law is not concerned with such moral dilemmas. Instead, the law aims to pinpoint liability on those individuals where a specific and identifiable duty can be found, and not simply on an individual who chooses, as is their right, to walk by a drowning child with no relationship to, responsibility for, or association with, that child.
Duty to act, not duty of care
The second point to note is not to confuse a legal duty to ‘act’ with a duty of ‘care’. The former is the requirement to establish omission liability; the latter is a tort law concept which bears use in terms of gross negligence manslaughter. In order to establish liability for gross negligence manslaughter, it must be proved that the defendant owed a duty of care to the victim. In circumstances where the defendant is charged with gross negligence manslaughter, and he does not perform a positive act (ie his liability is omission-based), the prosecution would not only have to establish a duty of care but would also have to establish a duty to act. We discuss this in more detail in Chapter 7.
The established duties to act are detailed below at 2.6.4 and are generally concerned with duties that exist as a result of a familiar relationship, assumed responsibility or other association.
2.6.3.3Unreasonable failure to act
The third factor is that the defendant unreasonably failed to act on that duty. Should a defendant do what ordinary people would consider reasonable in the circumstances, he will not be liable for his failure to act. This question essentially asks whether the defendant breached his duty to act and whether that breach was unreasonable in the circumstances.
example
Jill is drowning in a lake. Jack reaches in to try to save her but cannot get to her. Jack is unable to swim himself, so he cannot jump in to save Jill. Instead Jack calls for assistance.
This scenario is a good example of how one should consider the question of reasonableness. In the circumstances where Jack is unable to swim, his failure to act (ie jumping into the water himself) would not be considered so unreasonable that he is liable for an offence. This is so on account that Jack is liable to do more harm than good if he himself cannot swim. In particular, there is a risk that Jack could exacerbate the circumstances for Jill and put himself in danger at the same time. His reasonable refusal is, further, strengthened by his reasonable act of calling for assistance. Had Jack not called for assistance, it is plausible that, overall, he might be considered as having acted unreasonably. Reasonableness is considered by the arbiters of fact.
It is important to emphasise that even if these three elements are satisfied, the prosecution must still prove that the defendant’s omission caused the end result and the defendant possessed the necessary mens rea. In that regard, if the end result would have occurred anyway (ie there was no factual causation), then the defendant cannot be liable (though some other offence may be available).
We shall now consider the established duties to act.
2.6.4The established duties
Below are detailed explanations of the current established duties to act in England and Wales. A failure to act in these circumstances may result in criminal liability. Note here the word ‘may’. The conditions for liability listed above (2.6.3) must be met. No liability will arise where a defendant fails to act in such circumstances, unless that failure to act is considered unreasonable.
2.6.4.1Official duty
Where a person has an official duty to act, for example a member of the emergency services, their omissions can give rise to criminal liability. For example, in R v Dytham [1979] QB 722, the defendant, a uniformed police officer, whilst on duty (though shortly to go off duty), stood aside and watched as a man was beaten to death outside a nightclub. He then left the scene, without calling for assistance or summoning an ambulance. The defendant was charged with and convicted of wilful misconduct in public office. On appeal, Lord Widgery CJ commented:
The allegation made was not of mere non-feasance but of deliberate failure and wilful neglect. This involves an element of culpability which is not restricted to corruption or dishonesty but which must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment.
There is a possibility that Dytham could have faced prosecution for manslaughter if it could have been proven that his inaction