ACTUS REUS – OMISSION

Introduction - In some special relationships, omission can be justified:- Possible Reforms

- To impose a criminal liability, two things must be proven – actus reus and - Airedale NHS Trust v Bland (1993): Doctors are not under an obligation 1. Duty of “easy rescue”
mens rea to prolong patient’s life when further treatment is render not therapeutic
- Ashworth proposed that individuals should be imposed a duty to assist those in danger so long as
- In generally, actus reus= voluntary act + consequent result. However, - Re B (a minor) (1998): Parents are under a duty to not kill, and not he has the ability to carry out the duty without putting himself in danger.
omission can replace voluntary act and amount to the actus reus of a crime. preserve life. ?
- Glanville Williams agreed to this obligation to rescue, but opined that omission to rescue should
- In criminal law, no person is liable for an omission to act save for 5. Voluntary assumption of a duty of care result in a minor penalty but not a serious condemnation.
exceptional circumstances where the law imposes a duty on him to act. - Accessed by determining whether there is reliance of the victim on the 2. Good Samaritan Laws / Duty to rescue
- There can be liability, provided the four elements are proven: defendant.
- Individual who comes to the aid of an injured person shall not be blamed for any further injury
1. The offence must be capable of being committed by omission - Instan (1893): Defendant was the only one who knew about her aunt’s that may results from the aid given.
2. There exist duty to act condition- shows that there is reliance.
- This reduces by-standers hesitance to help others with the fear of incurring any liability.
3. The duty was breached - Stone and Dobinson (1977): Taking in the victim proved that the
defendants assumed responsibility. Conclusion
4. The breach of duty to act caused the causation ?
6. Duty arising from own acts - It is submitted that the law on omission is not satisfactory and a reform is needed.
Exceptions - Miller (1983): Where one has created a dangerous situation, he has a duty - Ashworth (2011) proposed that omission should be tackled from a ‘social responsibility’ approach.

- An omission to act can give rise to criminal liability when there is:- to take reasonable care to prevent or reduce the harm. - A combination of the duty of “easy rescue” coupled with the Good Samaritan Laws will lead to a

- Principle extended in Evans (2009): One has duty to take reasonable steps good balance between the freedom of autonomy and the need to protect one’s lives.
1. Statutory duty
to save the other’s life if he contributes to the situation. - Everyone has the right to life as provided in Article 2 of the Human Rights Act 1998, by imposing
- Parliament creates offences for omission by expressly provided in terms in
the duty of “easy rescue”, the victim might have a higher chance of survival in the situation where
statutes.
Problems it is safe for the by-stander to help him.
- S. 38B Terrorism Act 2000: Failing to disclose information that is material
1. The extent of duty owed to another is unclear - The duty of “easy rescue” does require further evaluation as “without putting himself in danger” is
to a terrorism event
- Adult children: Smith (1826)- no duty to care for an adult brother who is rather subjective. If one saw a child drown, he knows how to swim but he has no confidence that
- S. 170 Road Traffic Act 1988: Failing to report a motor accident
mentally handicapped, Sheppard (1862)- no duty towards 18-year-old he can safely rescue the child thus decide not to react- does his omission makes him liable?
- S. 24A Theft Act 1968: Failing to take reasonable steps to secure credit
daughter albeit age of majority then was 21, Evans (2009)- mother has a - It is suggested that English Court can adopt Germany’s approach to omission- where failure to
2. Contractual duty duty towards 16-year-old daughter help one in peril can be held liable under the law but he cannot be prosecuted shall the attempt
- If a person has a contractual duty to act and failed to perform his - Friends: Sinclair (1998) in contrast with Lewin v Crown Prosecution falls short.
obligation, it may result in criminal liability. Service (2002) - With the fear of being prosecuted removed, society can now follow their moral obligation to help
- Pittwood (1902): Contractual obligation in criminal law does not only - Ashworth (2011) commented on Khan and others (2009): whether the someone in need. As Ashworth mentioned, society would benefits as less harm is suffered by
limit to parties to the contract, but also to people who are likely to be family members were aware of their statutory duty to act in the first place? individuals.
affected if the obligation is not performed.
2. When does one’s failure lead to criminal liability - In conclusion, it is submitted that a general duty to rescue should be imposed on everyone in the
3. Duty arising from holding a public office society, accompanied with the Good Samaritan Laws.
- List of situation is still being developed by the judiciary, hence it is hard for
- Dytham (1979): An on duty uniformed policeman was charged for individual to know when their failure to intervene would constitute a crime. - With these suggested reforms together with developments of judicial decisions, it is hopeful that
criminal offence as his omission to act as it was against his public duty as the area of omission would be more certain and satisfactory.
- Protection on individual reduce significantly as he would not be inform that
a policeman.
a criminal duty is likely to be implemented. List of References
4. Duty arising from relationship - Sinclair (1998): Courts recognised the expansion of relationships giving 1. Ashworth A, ‘Ignorance of the Criminal Law, and Duties to Avoid it’ (2011) 74 MLR 1
- Courts are reluctant to provide the exact relationships which give rise to rise to a duty to act means that defendants might be unaware of their
2. Elliot C, ‘Liability for Manslaughter by Omission: Don’t Let the Baby Drown!’ (2010) 74 JCL
duty of care. conduct being regarded as criminal.
3. France S, ‘The Law of Omissions – Proposals for Reform’ (1992) 7 Otago L Rev 625
- Gibbins and Proctor (1918): Parents owed a duty of care towards young 3. This area of law lacks of certainty
4. Kirchheimer O, ‘Criminal Omissions’ (1942) 55 HLR 615
children - Criticised by Lord Mustill in Airedale NHS Trust v Bland (1993) 5. Mead G, ‘Contracting into Crimes: A Theory of Criminal Omissions’ (1991) 11 OJLS 147