Crime: Liability for Omissions

To prove that a crime has been committed, it is usually necessary to establish two things: first, the presence of actus reus (guilty act) and, second, mens rea (guilty mind). However, some crimes do not require proof of mens rea and are therefore known as strict liability offences. Generally, the actus reus requires a voluntary act, but there are exceptions to this requirement in the form of omissions. This article focuses on the duties of care under which criminal liability can arise through an omission. However, some crimes cannot be committed through omission, such as assault and constructive manslaughter.

To establish criminal liability through an omission, it is necessary to show three things: first, that a duty of care existed; second, that this duty was breached; and third, that there was a causal connection between the breach and the harm suffered. A breach of duty will not arise where D’s conduct was justified or where it was impossible to perform the duty. The following are the types of common law duty that can give rise to liability through omission.

Special Relationships

These are usually relationships between close family members such as mother and daughter. However, courts have declined to identify the exact relationships which fall under this duty of care. A case example of this type of relationship can be seen in R v Gibbins and Proctor [1918] 13 Cr App Rep 134. In this case, D and his common law wife neglected D’s 7 year-old child who starved to death. Both D and his wife were convicted of murder due to D having a responsibility to his child, and the wife – as she had a special relationship to the daughter. This case resulted in murder, not manslaughter because the necessary intention was found.

Assumption of Care

This category is similar to that of special relationships – however, it does not necessarily have to be a family member. This can apply to anyone who undertakes responsibility for the care of another. Crucially – in this category – the circumstances of the case will be needed, to decide if there was a voluntary assumption of care. A leading case here is R v Stone and Dobinson [1977] 1 QB 354. In this case, the defendants 'took in' Stone’s sister, to care for her. Both defendants were described as having low intelligence and acting inadequately whilst she was in their care – Stone’s sister’s condition deteriorated resulting in death. Both defendants were convicted of manslaughter as they voluntarily assumed the responsibility to care for her, which they failed to do. Their lack of intelligence was no excuse.

Contractual Duty

A contract may create a duty under criminal law not only towards the parties to the contract, but also towards people who are likely to be injured if the contract is not performed. This is most evident in professions which involve caring for others such as health professionals or public service workers. The leading case on this duty is R v Pittwood [1902] 19 TLR 37. In this case, D was a railway crossing gate-keeper. He opened the gate to let a cart through, and forgot to close it before he left for lunch. A person was struck on the railway track and D was convicted of manslaughter. However, it was, and has still not, been made clear by the courts where the employee's duty will end on each shift. The only certainty is that it will end when the employment is terminated.

Duty to Remedy a Dangerous Situation

This is this most recent duty of care situation created by the courts. This duty of care means that if you create a dangerous situation, you are liable for any harm caused if you have not taken reasonable steps to prevent the harm occurring. The act may be done innocently, but there is still a duty to prevent harm.

This duty draws its origins from the case of R v Miller [1983] 2 AC 161. D was a squatter in V’s house, and went to sleep whilst holding a lit cigarette. When he woke up, he found that the mattress was on fire. Instead of trying to put the fire out, D moved into the next room and went to sleep. The courts held that D should have tried to remedy to situation by putting the fire out. His subsequent failure to do so created liability for the damage caused.

This duty may well arise between random members of the public in a situation where one person attempts to rescue another but abandons the attempt upon reaching the victim. This could create a dangerous situation. Indeed, they may have made the situation worse than it was originally but their attempted rescue. However, the attempted rescue may not cause this duty to arise if upon failing the rescue they subsequently get help.

General Duty of Care

Currently, under English law, there is no general duty to act to help other members of the public unless they fall into one of the categories outlined above. This means that if someone were drowning in a lake and a member of the public walked past, they would be under no legal obligation to help them, even if there was a strong moral obligation to do so. Thus, a member of the public cannot generally be prosecuted for failing to act in such a situation.

The question remains: should English law impose a general duty of care?

There are arguments both for and against the imposition of a general duty of care. Supporters argue that it could prevent harm to others and promote greater morality within society. However, there is a counterargument that people could cause more harm when attempting to help an injured person. Furthermore, if someone were drowning on a beach, for example, with no lifeguard present, should everyone on the beach be expected to help? If they did not, could they all be prosecuted? With respect to situations like this, a general duty of care could be impractical. Additionally, people could potentially pretend to be in trouble in order to encourage someone to help them, with the intention of stealing from them. Thus, a general duty of care could potentially result in more crimes being committed.

Overall, the duties imposed by the common law and statutes are likely to be sufficient to protect society. Although a general duty of care could promote greater morality within society, it is likely to cause more problems than it would solve.