Elements of Criminal Liability
Actus Reus - Omissions
Elements of Criminal Liability
Actus Reus - Omissions
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Elements of Criminal Liability
Actus Reus - Omissions
Objectives
• Identify what an omission is
• Describe how omissions can create criminal
liability
• Apply omissions to case examples
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Elements of Criminal Liability
Actus Reus - Omissions
Starter
• You can use your books only after you have
attempted to answer the questions
• Quiz, Quiz, Trade
• You have five minutes to find all 10 question
cards and answer them all
• After each question swap cards and find another
partner
• Make a note of all the answers in your books
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Elements of Criminal Liability
Actus Reus - Omissions
Conventional view
• Imagine A walks past B, who is drowning in a pond, and
fails to help him. Although "A" may have failed to save
"B", he did no positive act to cause "B's" death.
• Normally, the criminal law does not require a person to
act to prevent harm or wrongdoing, or prevent a crime
being committed.
• A person does not commit a crime or become a party to
it solely because he might reasonably have prevented it.
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Elements of Criminal Liability
Actus Reus - Omissions
Conventional View #2
• The conventional view is that there are several
offences (such as assaults or battery) which
cannot be committed by omission, although see
DPP v Santana-Bermudez (2003)
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Elements of Criminal Liability
Actus Reus - Omissions
DPP v Santana-Bermudez (2003)
Case Law
Omissions – inactivity by D – an omission can amount to actus reus in assualt
D injured a woman police officer by allowing her to search him, knowing he had hypodermic
needles in his pockets which stabbed her. D denied having any needles or sharps when asked. D
was convicted by the Magistrates, but acquitted at Crown Court. On appeal by way of case stated
from the Crown Court, prosecutor's appeal was allowed.
Principle – here someone created a danger and thereby exposed another to a reasonably
foreseeable risk of injury, there was an evidential basis for the actus reus of an assault
occasioning actual bodily harm. D had “created a danger by an act … that act was a continuing
act”. The risk of injury was foreseeable.
Not Guilty but would be now
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Elements of Criminal Liability
Actus Reus - Omissions
Exceptions
• There are some instances which constitute an exception to
the ‘non-requirement to act convention’
• The first is when specified by statute and these examples
have an omission in their statutory definition. This type of
liability for omissions is called direct liability
• When not specified by statute, failing to act in a particular way
(an omission) will give rise to criminal liability only where a
duty to act arises. This is known as a derivative liability
• All exceptions require a ‘duty’. Parents, nurses, etc., have a
duty
• This sort of duty is exceptional and the criminal law does not
ordinarily require a person to be "his brother’s keeper”.
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Elements of Criminal Liability
Actus Reus - Omissions
Duty Arising From Statute
•
'Direct' liability; examples of offences created by statute that make an
omission culpable:
– The Children and Young Persons Act 1933 s 1 (as amended) makes
omissions culpable by a person over 16 failing to look after a child under
16, so an omission is part of the actus reus of that crime.
– Under s170 Road Traffic Act 1988 failing to stop at a road accident is a
criminal offence. The omission to stop is part of the actus reus.
– Under breathalyser law failing to provide a breath sample or a specimen
for analysis s6 Road Traffic Act 1988 is also an crime of omission, and
under other sections so is failing to give a name and address.
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Elements of Criminal Liability
Actus Reus - Omissions
Duty Arising From a Special Relationship
• In addition to the statutory requirement, common
law creates a duty on a parent to act for the
welfare of his child
• If harm is caused to the child by his failure to act,
he may be criminally liable for the resulting
harm, the key example here is Gibbins and
Proctor (1918)
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Elements of Criminal Liability
Actus Reus - Omissions
Gibbins and Proctor (1918)
Case Law
Omissions – duty situations
D and his common law wife failed to feed the man's 7 year-old child, Nelly, and she died from
starvation. The woman hated Nelly, and was clearly the moving force.
Principle – Where there is the duty to act, failure to do so can lead to liability even for murder
if the necessary mens rea is present. The woman was held to be liable because, while the child
was not hers, she was living with the man and had accepted his money for food. The courts
regarded the parent's duty towards a young child as so self-evident as not to require analysis or
authority.
Guilty of Murder
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Elements of Criminal Liability
Actus Reus - Omissions
Assumption of Care for Another
• There is no statutory duty to care or assist a person over
the age of 16, but there can be a common law duty
• However, the common law recognises that a duty may
arise in a family relationship, for example where a couple
live together as husband and wife or where a child
continues to live, and is dependent upon, his parents
even after becoming an adult
• Also, if a person voluntarily undertakes to care for
another who is unable to care for himself as a result of
age, illness or other infirmity, that person may thereby
incur a duty to discharge that undertaking, at least until
such time as he hands it over to someone else.
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Elements of Criminal Liability
Actus Reus - Omissions
R v Stone & Dobinson (1977)
Case Law
Omissions – existence of duty
S and D allowed Stone's ill and unstable sister , Fanny, to live in their house. Fanny was suffering
from anorexia and her condition deteriorated, until she became bed-ridden. She needed medical
help, but none was summoned and she eventually died in squalor, covered in bed sores and filth.
Principle – Because they had taken Fanny into their home, they had assumed a duty of care for
her and had been grossly negligent in the performance of that duty. The fact that Fanny was
Stone's sister was merely incidental to this.
Both guilty of manslaughter by gross negligence.
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Elements of Criminal Liability
Actus Reus - Omissions
Contractual Duty
• A person may in some cases incur criminal
liability through failure to discharge his official
duties or contractual obligations. The requisite
mens rea, is also required.
• Key cases – Pitwood
• The principle in Pitwood would extend to liability
for a lifeguard at a swimming pool.
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Elements of Criminal Liability
Actus Reus - Omissions
R v Pitwood (1902)
Case Law
Omissions – duty of care – under a contract
D a level crossing keeper who negligently left open the crossing gate. This led to the death of a
carter whose cart was struck by a train.
Principle – D had a duty to shut the gate (owed to his employers rather than to the public at
large), but it was enough that his negligent failure to act could lead to conviction.
Guilty of gross negligence manslaughter.
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Elements of Criminal Liability
Actus Reus - Omissions
Public Position Requires Action
• Key case – Dytham
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Elements of Criminal Liability
Actus Reus - Omissions
R v Dytham (1979)
Case Law
Omissions – breach of official duty – police
D, whilst on duty and in uniform some 30 yards away from the entrance to a club, from which he
saw a man ejected. Shortly afterwards there was a fight involving cries and screams and the man
was beaten and kicked to death in the gutter outside the club. He then left without calling for
assistance or summoning an ambulance.
Principle – Lord Widgery: 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."
Guilty of the common law offence of wilful misconduct in public office.
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Elements of Criminal Liability
Actus Reus - Omissions
Creating a Dangerous Situation
• If a person creates a dangerous situation
through his own fault, he may be under a duty to
take reasonable steps to avert that danger, and
may therefore incur criminal liability for failing to
do so.
• Two key cases here: Miller & Santana-Bermudez
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Elements of Criminal Liability
Actus Reus - Omissions
R v Miller (1983)
Case Law
Omissions – situation created by D
D a vagrant was sleeping in a building, and fell asleep on his mattress. When he woke up, he saw
that his cigarette had caused the mattress to smoulder. Instead of calling for help, just moved into
another room. The fire flared up and spread.
Principle – He was convicted of arson, not for starting the fire but for failing to do anything
about it.Lord Diplock:"...I see no rational ground for excluding from conduct capable of giving rise
to criminal liability, conduct which consists of failing to take measures that lie within one's power
to counteract a danger that one has oneself created, if at the time of such conduct one's state of
mind is such as constitutes a necessary ingredient of the offence. I venture to think that the habit
of lawyers to talk of "actus reus," suggestive as it is of action rather than inaction, is responsible
for any erroneous notion that failure to act cannot give rise to criminal liability in English law."
Guilty of arson (criminal damage by fire)
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Elements of Criminal Liability
Actus Reus - Omissions
DPP v Santana-Bermudez (2003)
Case Law
Omissions – inactivity by D – an omission can amount to actus reus in assualt
D injured a woman police officer by allowing her to search him, knowing he had hypodermic
needles in his pockets which stabbed her. D denied having any needles or sharps when asked. D
was convicted by the Magistrates, but acquitted at Crown Court. On appeal by way of case stated
from the Crown Court, prosecutor's appeal was allowed.
Principle – here someone created a danger and thereby exposed another to a reasonably
foreseeable risk of injury, there was an evidential basis for the actus reus of an assault
occasioning actual bodily harm. D had “created a danger by an act … that act was a continuing
act”. The risk of injury was foreseeable.
Not Guilty but would be now
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Elements of Criminal Liability
Actus Reus - Omissions
Plenary
• The Children and Young Persons Act 1933 s 1 (as
amended) makes omissions culpable by a person over
16 failing to look after a child under 16, so an omission
is part of the actus reus of that crime.
• I walk past a pond and watch a young baby drown to
death whilst doing nothing to save it.
• One group represents the prosecution and constructs
a case against me using s1 CYPA 1933 the other
group have to advise on how the wording prevents my
criminal liability.
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20
Elements of Criminal Liability
Actus Reus - Omissions
Objectives
• Identify what an omission is
• Describe how omissions can create criminal
liability
• Apply omissions to case examples
© The Law Bank
21