Critically analyse the situation where a person can be liable in a criminal law

for an omission to act.

This question requires to break down and scrutinize where a person can be

found guilty of a crime in relation to the failure to act and to state ones opinion

on to whether the imposition of such liability continue to be fair. In order to

address this issue one will firstly need to define what amounts to a crime and

its elements, as well as to describe the situation of an omission liability in

order to ascertain if such inquisition is justified or fair.

A crime is a wrong against the state, which attracts the imposition of a state

penalty. In order to obtain a conviction the prosecution will have to prove the

existence and coincidence of the Actus Reus, which is the guilty Act, and the

Mens Rea, which is the guilty mind. The Actus Reus is generally proven by

way of a positive Act which is done voluntarily and which in the case of a

result crime caused that result. The need to prove the existence of a positive

act is based in the fact that a person should only be convicted in respect to

what they have actually done. There are exceptions to this in state of affairs

crime; being found responsible for the action of others and the omission

liability.

An omission is a failure to act and the general rule is that criminal liability

should only be imposed where there is a duty to act. This duty to act can arise

in several situations and the focus of the answer is on the fairness of these

situations.
The first instance of such a duty arises under a statute. A statute is an act,

which is enacted by parliament, which may require a person to act of forebear

to act in a particular manner. If an individual fails to act in a manner, which

required by statute (statutory duty) then criminal liability may be imposed in

respect to this failure. An example of this was in R-v-Firth, the defendant was

a doctor who failed to inform an NHS hospital that he was transferring a non-

NHS patient to it as required by law. As such his failure let to him being found

guilty in one of the old deception offences under Section 2 Theft Act 1978

(TA1978).

On the face of it, the imposition of such liability is fair because statutes

represent enacted law which is equally applicable to all person within a

society. However if a law is onerous and/or draconian, then the imposition of

such liability becomes unfair. The issue would therefore arise as to whether

there exist any safeguards in relation to the enactment of criminal law, here

one can argue that criminal law were to be enacted in accordance with the

principle of minimal criminalization, as suggested by academics, then such

imposition must be fair, as only the action or omission with the most severe

repercussion would be criminalized. In which case, criminal law would

represent the minimum standard required to protect the public and preserve

the peace.

Duty of law enforcement, under common law, is the next situation where one

can be criminally liable when law enforcement authority does not act. The
case of R-v-Dytham can be taken as an example. In this case the defendant

was a police officer who was almost at the end of his shift, saw a fight and did

not intervene to stop the fight even though it sounded violent. This resulted in

the death of the victim. The reason he gave for not intervening was that he

was nearly at the end of his duty and he didnt want to work past his shift. The

pervious case was about a police officer and the following involves a civilian

(R-v-Brown). In this case a Riot was about to start and the police asked the

defendant to help in stopping the riot. The defendant refused and he was

found guilty of abetting.

In the case of Dytham it is fair for him to be criminally liable for not acting.

Being a policeman he represents the law and when he heard and saw that

there was some commotions he should have at least done something. He

could have called for help and back up. His not acting resulted in the death of

a civilian. The reason he gave that him being nearly to the end of his shift and

didnt want to work overtime doesnt reflect a good image on the police force.

People will not feel safe if the entire police force behaved in the way that

Dytham did. The case of Brown is a completely different one where the police

asked a civilian for help. Though the civilian had the duty to help in with the

request of the police, Mr Brown was not a law enforcement officer and he

could have jeopardized his life if he intervened in this situation and therefore it

is not fair for him to have been charged under omission liability.

The next omission liability is related to contractual duty. An individual who

signs a contract must abide to the terms of the contract and any breach of the
contract would involve civil liability. In the case of R-v-Pittwood, the

defendant was employed by the railways to close/open the railway-crossing

gates. One day he went off for lunch and left the gate open, two people with a

hay cart crossed the railway and were hit by the train; this caused death of

one of them and the other one to be seriously injured. The defendant was

charged with manslaughter.

The railways employed Pittwood and the latter signed a contract to close the

gates when a train was passing and open them after the train had passed for

the road to be used again by the general public, PIttwood was in breach of his

contract and his omission to fulfil the terms of his contract found him being

liable. Question is whether the law is fair or not? For this category of omission

liability (contractual duty) the law was fair, as he owed his employers a duty

by virtue of his contract of employment. Which is straightforward; if he fails the

terms of his contract he is to be liable. It should be noted that the defendant

owed a contractual contractual duty to the employer not the victim.

A person can also be held liable in the case where he had voluntarily

assumed the responsibility for another persons welfare and he has failed to

do so. This category under omission liability is called assumed duties. To

which there are 3 sub categories. The first one would be a parents duty to his

child; a parent is automatically responsible for the caring of a child. So the

parent can be held criminally liable for any omission that causes harm to the

child. In the case of Gibbons and Proctor, the man gave the woman money

to buy grocery for the household but the woman being the second wife of the
man didnt like the mans youngest child from his previous marriage and

therefore she didnt feed him. The man knew about the situation and did

nothing to prevent the child from starving to death. Both of them were charged

and convicted of murder for their omission to act, the man since being the

father knew about the situation his child was in and did nothing and the

woman who took the money from the father of the child let her starve to death.

Though she wasnt the mother she filled in the mothers position and was

bound to feed the child. The second sub category would be labelled as any

other relationship under which the husband and wife (long term partner)

relationship falls or it could be the relationship between siblings. For this

category the cases generally referred to is R-v-Stone; R-v-Dobinson (herein

referred to as R-v-S&D) and Evans (Gemma). In the case of R-v-S&D, the

defendants were cohabitees who were below average intelligence who lived

on welfare. Mr Stones sister Fanny, the victim, was welcomed to stay under

their care. The victim suffered from anorexia and bulimia, they took care of

her but at some point they stopped because it was too much for them, even

with the neighbours request for taking the victim to the doctor, they didnt do

anything and the victim was found dead in her room in appalling conditions

(starved to death with her excrement around her). The couple was charged

with murder for their omission to act, but this was decreased to manslaughter

after their condition has been taken into account. The Evans (Gemma) case,

the older sister brought home some heroin and the younger sister overdosed

on it and when she was in a critical condition neither the mother nor the older

sister called for help. The mother was found to be guilty of murder for her

omission to act. The last sub category under assumed duties is when party
are jointly engaged in dangerous or hazardous activities. If parties participate

in dangerous activities together they owe each other a duty. In the case of

Lewin-v-CPS, a friend left his other drunken friend in the car during a hot day

and the combination of the heat and alcohol caused the other friend to die.

The defendant in this particular case was not found guilty, as this was not

considered as being a dangerous activity.

Under assumed duties we can see that there is no convening point of

agreement whether the law is fair or not. In Gibbons and proctor I would say

that the law is fair as it was the parents duty to care for the need of the child,

even though being a step child, the woman had no right id depriving him from

one of his basic needs, in this case food and the childs father should have

taken some actions when he learned that his wife was not feeding the young

child. Then comes the case of Stone and Dobinson where I would say that the

law is unfair, the reason why is that the two people was not themselves

properly equipped to welcome the Fanny and yet they did that, living on

welfare and being intellectually weak they could definitely not have taken the

best decision for the victim. They have tried to do what they could but then to

some extent it became a burden to them, but in this situation Fanny was not a

child, she was a fully grown adult and she still refused to take care of herself,

his host could not do much about it if she refused to eat her food or handle

her personal hygiene. Though the neighbours have informed the defendants

that they should do something about the condition of the sister they were

below average intelligence as mentioned earlier this didnt help them in taking

the best decision. For the case of Evans(Gemma) I find that yes in this
situation it is fair for the mother to be criminally charged under omission

liability for having not called for help when her younger daughter needed it.

Her being the mother put her in a position to assist her minor daughter when

her life was threatened but she failed to do so and this ended up with her

younger daughter dying. The elder sister on the other hand didnt get charged

for not helping as she didnt owe her younger sister a duty to call for help, this

is not fair as though under law she didnt owe her a duty to act, she was

should have called for help her failure to do so should have resulted in

omission liability. We clearly know that there is a clear distinction between

morality and law. Even though morally she can be held liable, under law she

bears no such liability. The last case we looked at under this category was

Lewins and here we can see that he should have been liable under omission

liability though the act was not a dangerous activity. He locked his friend in his

car, in a state of intoxication, on a hot day without any window down. This was

not the most sensible thing to do, even though he meant no harm, he should

have been guilty for acting in a way that an ordinary man wouldnt.

Ownership and control of property is another situation where a person can be

held criminally liable under omission liability for not acting. An owner of a

property has the duty to either stop or ensure that a crime is not being

committed on his property, failure to do so can lead to the owner being found

liable for aiding and abetting. In the case of Tuck-v-Robson, a publican was

found liable under the licensing act for failing to prevent his customers from

drinking on his premises after hours. Under the same act he was found to

have aided and abetted their crime.

The law in Tuck-v-Robsons case is fair as the defendant was completely in

breach of the law while it is clearly stated in the licensing act that no persons

can be found on the premises of a pub consuming intoxicated liquor, the

defendant allowed 12 of his customers to be inside his pub to consume

alcohol even though he was not the one serving them. In other words his

omission to ask them to leave his premises put him in a state of illegality. As

he completely went what was stated in statute it is but fair for him to be guilty.

A continuing act is a situation where a person starts on a course of action and

accidentally places another person in harms way and fails to prevent/stop the

harm from happening/worsening/continuing. The doer can be found liable for

an omission if it is part of a continuing act. In the case of Fagan-v-MPC, the

victim was a policeman who was guiding the defendant to park his car. The

victim and the defendant had a disagreement and the defendant ended up

parking his car on the victims foot. The defendant didnt realize what he had

done but when he came to the knowledge of this action and he was told to

remove his car so that the victim could free his foot he refused.

In Fagans case we can see that his omission to take the victim out of harms

way made him criminally liable. For this situation the law is fair as one cannot

cause harm, even if one didnt intend to do so, and then refuse to help the one

who is suffering from his action. The next situation we will look at is in the

same line as what we just discussed with the exception that this one starts out

dangerously and illegally.

So, creation of danger is another situation where a person can be found liable

under omission liability. What creation of danger is basically when a person

creates a dangerous situation for another and fails to remove the latter from

that danger. Creation of danger is different from continuing act or the last sub-

category of assumed duties which is when parties participate in dangerous

activities together, as creation of danger as aforementioned starts out

dangerously and is usually criminal in nature. The case of R-v-Miller, is a

good example as in this case, the defendant, was intoxicated and fell asleep

with a lit cigarette in his hand on a mattress. This caused a fire to start and

when the defendant saw the fire he simply woke up and changed room to

resume sleeping. The fire broke and he was convicted of arson.

The reason that Miller was criminally liable was that upon seeing the fire he

did nothing to put it out and when the fire spread he did not call the fire

brigade. In his case and this category of omission liability it is fair for him to be

convicted. He became aware of the fire and yet he didnt take any necessary

step to prevent it from causing more harm that it did. This situation could have

got worse if there were other people in the house and this could even have

caused death.

The last situation where a person can be criminally liable under omission

liability is under novel situations. Novel situations are as such where the court

creates new circumstances under which there is a duty to act. Here it all

depends on the facts of the case presented to the court.

Having gone though all the categories of omission liability and having taken

into accounts the landmark cases in each situations one can clearly see that

for omission liability there are cases where the law is not that clear as to how

to go about certain situations but in other cases the law is pretty

straightforward. Clear situations have been demonstrated as to when a

person should act and when a person should not act. A person who goes

directly against what has been written in statute is in breach. The categories

of omission liability are so wide that one cannot say that it is entirely fair or

not. Some categories are fair others are not. In statutory duty we saw that it

was fair due to the position of the defendant as him being a policeman is

suppose to be the example for the people. In contractual duty we have seen

that when someone is in breach of contract it is also fair for that person to be

liable, as a contract has all the terms the person should has agreed to if he

goes against that its normal that he is in breach. Assumed duties has been

quite a vast topic of discussion. Parent-child sub-category is a fair one

considering that that a parent should care and protect his/her child whether

the child is ones own (Evans) or a step-child (Gibbons and Proctor), in any

other relationship we saw that a sibling has no duty towards another sibling in

case of Evans the elder sister was not under duty to help the younger sister

and in the case of Stone and Dobinson, even though siblings do not owe each

other a duty they agreed to take the sister in and were responsible for her in

this case one can see that it was not fair as the sister was an adult woman

who could have fended for herself which she decided not to do. Parties who

are involved in dangerous activities is a situation where the law is fair as if

there is any sort of omission in this situation it could result in death the case of

Lewin wasnt a dangerous situation but still he should guilty of gross

negligence as his actions led to his friend dying. In Ownership and control of

property one can see that there has been breach in the law and it is fair for

the publican to have been found guilty for not acting. In continuing act the law

is also fair, the defendant is guilty as he learned he made a mistake and

refused to amend it. Creation of danger a fair side of omission liability as this

can have severe consequences if the situation is not tended to as soon as it

has been acknowledged. Then the final situation is Novel situation, the only

fact that this category exists id proof that the law is not clear and that each

and every situation should be interpreted differently. Hence the question as to

whether imposition of such liability is fair would most certainly leave one on

the fence.