1.​ Evaluate the law on omissions in actus reus.

(Oct 2023/22)

AO1 Knowledge and understanding

• An actus reus is normally a voluntary and positive act.

• There are some situations in which a failure to act can give rise to criminal liability.

• Statutory duty – this is a duty imposed by an Act of Parliament, often as a means of raising standards of
behaviour such as failing to provide a specimen of breath under s6 Road Traffic Act 1988.

• Contractual duty – this often arises due to employment – R v Pittwood (1902).

• Duty due to a relationship – this is a wide duty but can be between a parent and child or between
other family members – R v Gibbins and Proctor (1918), R v Evans (2009).

• Duty undertaken voluntarily – this covers a wide range of situations but may involve taking on caring
for someone vulnerable – R v Stone and Dobinson (1977).

• Duty arising from public office – this only applies to a small category of people, such as police officers
– R v Dytham (1979)

. • Duty arising due to a dangerous situation - the defendant has failed to prevent harm as they have
allowed a situation to become dangerous – R v Miller (1983), R v Evans (2009).

AO2 Analysis and application Analysis:

• An actus reus is a key element as without it there is no need to prove mens rea and there cannot be a
criminal offence.

• This means it is essential to prove as it is something which can be seen and so helps with sentencing.

• The development of the law shows complexity as originally an actus reus had to be both positive and
voluntary but this left gaps in the law.

• This led to unfairness as those who did not do what they should have done avoided liability.

• There can be inconsistency in duties as they do not always take account of whether the person
involved is able to discharge it so there is an issue of fair labelling.

• Some duties do not take account of the complex relationships those involved have or the pressures
individuals can be under.

• There is a question whether people have to intervene given the availability of emergency services.

AO3 Evaluation

• The range of duties have been expanded over time to cover gaps in the law, which can make the law
more effective.

• Most developments have been made by judges suggesting that change is incremental and in step with
society’s needs.
• Statutory duties show Parliament acting as an agent of social paternalism and making people behave
better – this might be in relation to large groups such as drivers, smaller groups such as family members
who may be aware of someone else in the family abusing a vulnerable person or particular categories of
people such as teachers having inappropriate relationships with students.

• Contractual duties make sure that those with responsibility to others discharge them properly which
make the law effective.

• Duties due to relationships often deal with situations in families – this can be good and can overlap
with statutory duties, as between a parent and child. However, it can be hard to define the extent of a
relationship; there is a problem if the person to whom the duty is owed does not want it to be fulfilled.

• A duty undertaken voluntarily can be good as it enables people to be cared for. However, the duty
assumed may be impossible to carry out, the person who assumes it may not have realised its full
implications and they may not be able to fulfil it due to their own shortcomings.

• A duty arising from public office is good as those who are being paid to protect society should do so.
However, there is a problem in how much they are then expected to do.

• A duty arising out of a dangerous situation is good as it encourages people to behave better. However,
they may not be able to see the dangerousness of the situation which raises questions of fairness

. • There is also a problem as there is no Good Samaritan law so there is no obligation to rescue unless
there is a duty; critics argue this is morally and legally wrong.

• There is a problem that people can be caused to feel fearful or to intervene badly out of a fear of
criminal proceedings

Answer:

Under criminal law, two elements must be proved by the prosecution before a defendant can be deemed
guilty- the actus reus and the mens rea. The actus reus is the conduct, state of affairs or the physical
element of the crime that is prohibited by the law. In normal circumstances, the actus reus requires a
positive act on the part of the defendant and a failure to act/omission does not generally lead to a
finding of guilt. This is justified to a certain extent because in order to retain individual autonomy and
freedom of choice, a person must not be compelled to act by compromising on their own personal
interests. However, there are a number of situations where a duty to act is implied and hence the
accused can be held criminally liable for their inaction or omission. These exceptions are equally
justified if one is to prioritize the interests of the wider community over individual interest.

The general rule in relation to omissions has been summarized by the 19th century judge Stephen J who
stated that one can not be held criminally liable for a failure to prevent a victim from drowning. This is in
line with the fact that there is no duty in English law to be a ‘ Good Samaritan’. The understanding is that
the penal law must content itself with preventing men from doing positive harm, and must leave to the
teachers of morality the task of encouraging people to do moral good in helping others. In addition, the
State provides professionals such as the police, fire brigade and ambulance to deal with emergency
situations and any imposition of a duty on the average citizen would make people feel compelled to
intervene in situations where they lack competence for fear of criminal proceedings. The law in this
regard is all the more justified in the context of doctors making a good faith decision not to provide a
patient in a vegetative state with artificial feeding such as in the case of Airdale NHS Trust v Bland. The
verdict of ‘not guilty’ in this case illustrates the effectiveness of the law in only punishing truly culpable
incidents. This ensures fair labelling and sentencing.

Yet, there are special circumstances where a duty to act is justified. In situations which involve a breach
of a statutory duty, the accused can be guilty of an offence for a failure to act. For example under s 6 of
the Road traffic 1988 a failure to cooperate with the police in taking a breathalyser test is an offence
which is capable of being committed through omission and carries with it a punishment similar to driving
under the influence of alcohol. This is indeed both legally and morally justified since an offender who is
in flat defiance of a statute is indeed blameworthy. In addition, there are strong public policy reasons-the
need to ensure public safety for adopting an absolute liability for road traffic and environmental
offences. The exception links to the idea of social paternalism, prioritizing the wider community interest
over the individual.

Moreover, in R v Dytham, it has been held that every police officer commits a misdemeanor who wilfully
neglects to perform any duty which he is bound to do either by common law or statute. Other instances
where a duty to act can be implied is under a contract. A person who is paid for a service must adhere to
their contractual obligations especially if their job involves some interaction with the public. In R v
Pittwood(1902), the accused was convicted of gross negligence manslaughter following the death of a
road user who was hit by a train on a level crossing. When the collision happened, the accused was
away from his post having left the gate open. His actions were regarded grossly negligent as he was paid
to keep the gate shut and protect the public. In such situations, upholding legally enforceable duties
keeps the law effective. Whilst express contractual duties are well defined, problems may arise in
defining implied contractual duties or the extent of duties imposed by common law such as that of the
officer in R v Dytham. This might lead to inconsistencies in the law and impact fair labelling.

Similarly, parents are under a duty to provide for their children. A failure to provide a child with enough
nourishment is culpable behavior which is indeed blameworthy and capable of leading to a conviction( R
v Gibbons and Procter). The parental duty to ensure the well being of their children is justified as this is
also a statutory duty and is an instance where the law reflects morality. However, how far this duty
extends to other relationships is ambiguous especially in cases where the victim to whom the duty is
owed do not want it to be carried out.

Another instance of a duty to act can be seen when the defendant voluntarily assumes responsibility for
the victim. This is illustrated through the case of R v Stones and Dobinson where the defendant was
described to be of low intelligence, yet the minimum care provided to the victim lead to a conviction of
manslaughter when the victim died following a failure to get the victim adequate medical attention.
Given that one of the defendants was blind, the outcome of the case is undoubtedly harsh. Although, the
imposition of a duty to act is by and large morally justified, there are instances such as in R v Stone
where criminalizing omissions runs counter to the legality principle which holds that people should only
be punished for offending a legal rule and not because their conduct is immoral or injurious. The
effectiveness of the law in this regard can be called into question because it criminalizes people who are
not aware of their own shortcomings.

Lastly, a person who has created a dangerous situation may be criminally responsible if h/she fails to take
reasonable steps to counteract the danger he has caused. In R v Miller, the defendant was guilty for the
failure to put out or report a fire that he had lit using a cigarette. Although he didn't have the supporting
mens rea at the time, he lit the cigarette, his later recklessness in failing to prevent a known risk was
punished. The extension of liability for a failure to act in such cases ensures accountability in cases where
there is clear mens rea. However, once again difficulty arises in cases where the defendant does not
realize the dangerousness of the situation created. In addition, it is also questionable whether the ratio
in R v Miller would extend to cases where the dangerous situation itself is created through an omission
such as the failure to pull a handbrake since in Miller, the dangerous situation was created through a
positive act.

Academics such as Ashworth propose a reform in this area whereby omissions liability should be
extended to include duties to report serious crime and to effect easy rescue. No serious loss of freedom
would be involved in such instances since the duty would only arise in cases of life-threatening injury and
the scope of the duty could easily be restricted to taking action which involved no unreasonable risk,
cost or inconvenience. However, these proposals are not favoured by many since such extended duties
would make it difficult to maintain consistency in defining what is reasonable to expect a defendant to
do. In addition, the imposition of duties to act based upon well-meaning communitarian ideals would
compromise the rational pursuit of self- interest. Thus, such a far reaching reform which prioritizes moral
considerations over legal considerations is not recommended.

It is evident from the above discussion that the criminal law seeks to uphold multiple values in a liberal
society. The general rule against the imposition of liability for an omission is to protect an individual from
coercion and preserve individual autonomy. Yet, the exceptions outlined above recognize that a liberal
society has other values such as the sanctity of life and good community which also need to be valued.
An incremental development of new duty situations could help the law reflect the moral foundations of
good citizenship whilst also balancing the need to value self- interest and autonomy.