INTRODUCTION TO OMISSION

The legal maxim of criminal law, actus non facit reum nisi mens sit rea, expresses that for a
person to be liable for a crime, the actus reus (guilty act) and mens rea (guilty mind) must be
present.1 The actus reus, an unlawful act, refers to a positive act or omission (negative act).2 A
positive act involves muscle movement,3 whereas omission is the failure to act. Despite the
general rule that a person will not be liable omission,4 in common law, there are certain
circumstances in which a person may still be liable for it. This occurs when all the four
conditions are established: first, the offence can be committed through omission; second, the
defendant has a duty to act; third, the duty to act was breached by a voluntary failure to act;
and fourth, the breach amounted to the prohibited consequences.5 Professor Wilson’s rationale
for attaching liability to certain omissions is that omissions might be ‘morally worse’ than acts in
certain contexts.6 For example, it would be ‘morally worse’ in failing to rescue a burning child
by not unlocking the door that she was trapped behind, in contrast to the act of shooting her to
take her out of her misery if there was no other way to rescue her.7 Therefore, an act of
omission can be penalised in scenarios ‘where there is some reason or expectation for that
thing to be done’.8

OFFENCE MUST BE CAPABLE OF BEING COMMITTED THROUGH OMISSION

One of the conditions to establish liability on omission is that the offence does not require an
act to be committed if the causation and fault elements within it are being satisfied.9 Besides
that, murder can also be committed with omission only because the actus reus is the killing of
the victim. This is illustrated in the case of R v Gibbins and Proctor.10 Lord Justice Darling held
that Proctor’s receipt of food expenses from Gibbins is her assumption of duty to the child

1
K. Gupta, ‘Actus Non Facit Reum Nisi Mens Sit Rea – Legal Maxim’ (Law Times Journal, 26 June 2019)
<https://lawtimesjournal.in/actus-non-facit-reum-nisi-mens-sit-rea/> accessed 8 December 2021.
2
W. Wilson, Criminal Law (6th edn, Pearson Education Limited 2017) 78.
3
Wilson (n2) 206.
4
J. F. Stephen, Digest Criminal Law (5th edn, London Macmillan and Co and New York 1894) 171.
5
Wilson (n2) 84-86.
6
Wilson (n2) 84.
7
ibid.
8
A.P. Simester, ‘Why Omissions are Special’ (1995) 1 LEG 311.
9
Wilson (n2) 85.
10
(1918) 13 Cr App R 134.
whose well-being was placed in reliance on her discharging the duty of feeding it.11 Both
defendants were eventually convicted of the murder due to their omission of their assumed
responsibility caused by Proctor’s deliberate act of depriving the child food.12 Professors Smith
and Hogan also asserted their opinion that even if the child had survived, the grievous bodily
harm sustained would have caused both of the defendants to be guilty under section 18 of the
Offences Against the Person Act13, showing us that offence under this act can also be committed
by omission.14

Besides that, omission can also result in gross negligence manslaughter. The conditions for it are
the defendant must be under a duty to care, which is a duty to not act or take action.15 Thus,
failure in doing so amounts to a breach of duty, which is illustrated in the case of R v Stone and
Dobinson.16 The defendant’s omission to provide care for the victim or alert the relevant
authorities had thus caused them to be liable for her death due to their voluntary assumption
of responsibility towards her. Criminal damage can also be caused by omission as per the case
of R v Miller17, whereby the defendant’s failure to prevent danger from transpiring as a result of
his initial act has led to property damage.

Nevertheless, constructive manslaughter cannot be caused solely by omission as laid down in

the case of R v Lowe18. The defendant was acquitted of manslaughter because the courts
reasoned that this offence requires a positive act and thus cannot be caused by omission
regardless if it was done deliberately.19 Nonetheless, his conviction of wilfully neglecting the
child contrary to the Children and Young Persons Act 1933 still stands.20 Professors Smith and
Hogan were of the opinion that the charge of constructive manslaughter should stand due to

11
ibid.
12
ibid.
13
Offences against the Person Act 1861, s18.
14
D. Ormerod, Smith and Hogan Criminal Law (13th edn, Oxford University Press 2011).
15
J. Herring, Criminal Law (8th edn, Palgrave Macmillan 2013) 94.
16
[1977] 1 QB 354.
17
[1983] 2 AC 161.
18
[1973] 1 QB 702.
19
ibid.
20
Children and Young Persons Act 1933 (CYPA 1933).
the defendant’s purposeful failure to act, knowing that medical assistance was imperative.21
However, as much as there is some logical reasoning to that, doing so will contradict the
definition of the offence laid down by law. A suggestion is that the prosecution could had relied
on the alternative charge of murder or gross negligence manslaughter, which might be easier to
establish as a positive act is not a required for these offences.

Besides that, assault is another offence which cannot be merely established through omission.
In Fagan v Metropolitan Police Commissioner22, the defendant argued that he should not be
held liable because there was no mens rea when he accidentally drove his car over the
policeman’s foot; the mens rea only arose at his refusal to remove the vehicle. To establish
assault as stated by Justice James, ‘both the elements of actus reus and mens rea must be
present at the same time’.23 However, the conviction of assault was upheld on the basis that
there was a continuing act whereby both actus reus and mens rea were altogether present. This
similar principle was also applied in Kaitamaki v R.24 The defendant was eventually held liable
for rape for his failure to withdraw upon knowing the victim did not give consent which formed
the mens rea whereby the actus reus of the rape is continual since the penetration.25

DUTY TO ACT
Despite the general rule that there is no liability for omission, a duty of care may be imposed by
statute.26 For example, under the Companies Act 186527 or the Value Added Tax Act 199428
criminal liability results from a failure to keep records of business activity.

21
Ormerod (n14).
22
[1969] 1 Q.B. 439.
23
ibid.
24
[1985] AC 147.
25
ibid.
26
Herring (n15) 41.
27
Companies Act 1865.
28
Value Added Tax Act 1994.
A duty of care may also be imposed by common law.29 This can be demonstrated by duties
arising from one’s contractual obligations30 such as in the case of R v Pittwood.31 Pittwood was
convicted of gross negligence manslaughter due to his breach of contractual duty for failing to
close the train’s crossing gates, leading to the death of a carter upon collision with a train. The
ruling in R v Instan32 was applied in this case — that a breach of contractual duty by omission
may amount to criminal liability. Though it may be argued that Pittwood has no contractual
obligation to the users, his contractual obligation with his employer meant that his job required
him to execute his duty of care to any crossing users.33 Omissions may be penalised when a
public servant fails to execute his public duties, as evidenced in the case of R v Dytham.34 The
defendant was convicted of wilful misconduct in public office due to his ‘deliberate failure and
wilful neglect’ to intervene or call for help whilst on duty upon witnessing a man being beaten
up. Therefore, this conduct went against the public interest which ‘call[ed] for condemnation
and punishment’,35 subsequently establishing the precedent of police officers’ duty of care
towards the society they ought to protect.36

Besides that, a duty to act may arise in the creation of dangerous situations.37 This is established
in the case of R v Miller38 where the defendant was convicted of arson by his omission to
extinguish the fire on the mattress caused by him sleeping on it with a lit-up cigarette. Lord
Diplock mentioned that liability should not be excluded when one had the capability but failed
to prevent a danger – caused by one’s conduct – from materialising.39 This principle was hence
extended in the case of R v Evans40 where the Court of Appeal upheld the manslaughter charge

29
Herring (n15) 41.
30
ibid.
31
(1902) 19 TLR 37.
32
[1893] 1 QB 450.
33
Pittwood (1902).
34
[1979] QB 722.
35
Dytham [1979].
36
Samuel Carthy, ‘A Critical Analysis of the Criminalisation of Omissions’ (Trinity College Law Review)
<https://trinitycollegelawreview.org/a-critical-analysis-of-the-criminalisation-of-omissions/> accessed 9 December
2021.
37
Herring (n15) 41.
38
[1983] 2 AC 161.
39
Miller [1983].
40
[2009] 1 WLR 1999.
on the defendant who provided heroin for the victim but did not call for medical assistance
when the victim was overdosed.

Moreover, a duty to act emerge in special relationships,41such as close family relationships. In R

v Senior42, a father was found guilty of manslaughter caused by his omission to provide his son
medication because of his religious beliefs, highlighting the rationale of a parent’s fundamental
duty to preserve their child’s life43 which will last until the child turns eighteen as decided in the
case of R v Shepherd.44 This duty to act in special relationships was also established in the case
of Gibbins and Proctor.45 Similar responsibilities are also attached in cases relating to spouses,
such as in R v Hood46. However, Professor William Wilson commented that such responsibilities
do not exist in informal relationships as shown through the American case of People v
Beardsley47 whereby the defendant was not held liable for his lover who had a morphine
overdose in his presence. Therefore, reaffirming the professor's comment that certain
expectations may be imposed upon a person based on their ‘status’, ‘role’ or ‘conduct’.48

Furthermore, a person may also be liable for their omission if they failed to execute their
voluntarily assumed duty of responsibility to another individual who is incapable of taking care
of him/herself, making them reliant on the defendant, as decided in R v Nicholls.49 In R v Stone
and Dobinson,50 the victim, who was a sister of Stone, had anorexia and came to live with him
but she soon became bedridden and ‘helplessly infirm’. The defendants were aware of this
condition but only made hopelessly ineffectual efforts in helping her, despite the promptings of
their neighbour and a pub owner for them to summon proper medical treatment. The victim
died and both defendants were held guilty for gross negligent manslaughter. The assumption of

41
Wilson (n2) 88.
42
[1989] 1 QB 283.
43
Carthy (n36).
44
(1862) 169 ER 1340.
45
Gibbins and Proctor (1918).
46
[2004] 1 Cr App R (s) 73.
47
150 Mich. 206, 113 N.W. 1128 (1907).
48
Wilson (n2) 88.
49
(1875) 13 Cox 75.
50
Stone and Dobinson [1977].
responsibility arose because the victim resided in the same household as them and was a blood
relation to Stone. Not to mention that, Dobinson had ‘undertaken the duty’ to wash and take
the victim food as well as attempted to summon a doctor. Hence, she voluntarily assumed a
duty of care. This made them both ‘obliged either to summon help or else to care for [her]
themselves' to which they failed to do so. However, the House of Lords later criticised the
decision in this case because it was clear that the defendants had learning difficulties and
indeed had difficulties caring for themselves, let alone others — because Stone was of low
average intelligence, partially deaf and almost blind, and his mistress was ‘ineffectual and
inadequate’. Additionally, it has been argued that the second defendant should not be liable
due to her lack of concrete relationship with the victim and her bona fide efforts to care for
her.51 Nevertheless, in the case of R v Ruffell52, the courts found that duty arose on the
defendant at the moment he voluntarily took the duty to revive the victim, which is similar to
Dobinson’s voluntary assumption of duty.

BREACH OF DUTY TO ACT

In order to give rise to liability on omission, the breach of the duty to act must give rise to the
prohibited consequence. If the duty to act was being successfully carried out, there would be no
liability at all. Examples which illustrate the complete breach of the defendant’s duty to act
which are the case of R v Miller53 and R v Lowe54. Nevertheless, there are circumstances where it
is difficult to distinguish whether one failed or succeeded to carry out the duty sufficiently. For
instance, the civil case of Airedale National Health Service Trust v Bland55 whereby the House of
Lords held that the treatment of Bland who was in a permanent vegetative state could be
withdrawn without incurring criminal liability of murder because the continual treatment would
not confer any improvement to the patient. Lord Golf also held that there is no absolute
obligation on doctors to prolong a patient’s life.56 The doctors already fulfilled their duty of

51
Carthy (n36).
52
[2003] EWCA Crim 122.
53
Miller [1983].
54
Lowe [1973].
55
[1973] 1 QB 702.
56
ibid.
providing artificial nutrition and are thus discharged of their duty to act — for doing as much as
they could in that situation. Therefore, they will not be liable for murder by omission.

CONCLUSION
In conclusion, despite the general rule stating that omission does not amount to liability, one
can still incur criminal liability through establishing all of the aforementioned four conditions.
Based on some of the cases above, it is undeniable that certain inconsistencies and vagueness
regarding the imposition of liability on omission, prompts us to consider the imposition of a
‘duty to rescue’ someone from peril without endangering oneself. This can be seen under the
‘Good Samaritan Laws’ of the French and German jurisdictions.57 However, arguments arose
that it would be difficult to ensure consistency in determining how defendants should act
reasonably in situations. Moreover, this imposition of duties on the basis of moral obligations
will go against one’s liberty and autonomy in society.58 A suggestion by Professor Wilson would
be to impose narrowly defined duties made by social expectations whereby one’s self interests
and social responsibilities are safeguarded, such as the established duty for neighbours to
prevent hazards within their property from extending and harming others.59

(2093 words)

57
Carthy (n36).
58
Wilson (n2) 97.
59
Wilson (n2) 98.
BIBLIOGRAPHY
Primary Sources:
Table of Cases and Statutes:
➢ Statutes:
○ Children and Young Persons Act 1933.
○ Companies Act 1865.
○ Offences against the Person Act 1861.
○ Value Added Tax Act 1994.

➢ Cases:
○ The United Kingdom Jurisdiction:
■ Airedale National Health Service Trust v Bland [1973] 1 QB 702.
■ Fagan v Metropolitan Police Commissioner [1969] 1 Q.B. 439.
■ Kaitamaki v R [1985] AC 147.
■ R v Dytham [1979] QB 722.
■ R v Evans [2009] 1 WLR 1999.
■ R v Gibbins and Proctor (1918) 13 Cr App R 134.
■ R v Hood [2004] 1 Cr App R (s) 73.
■ R v Instan [1893] 1 QB 450.
■ R v Lowe [1973] 1 QB 702.
■ R v Miller [1983] 2 AC 161.
■ R v Nicholls (1875) 13 Cox 75.
■ R v Pittwood (1902) 19 TLR 37.
■ R v Ruffell [2003] EWCA Crim 122.
■ R v Senior [1989] 1 QB 283.
■ R v Shepherd (1862) 169 ER 1340.
■ R v Smith (1979) CLR 251.
■ R v Stone and Dobinson [1977] 1 QB 354.
○ The United States Jurisdiction:
 ■ People v Beardsley 150 Mich. 206, 113 N.W. 1128 (1907).

Secondary Sources:
➢ Books:
○ David Ormerod, Smith and Hogan Criminal Law (13th edn, Oxford University
Press 2011).
○ James Fitzjames Stephen, Digest Criminal Law (5th edn, London Macmillan and
Co and New York 1894).
○ Jonathan Herring, Criminal Law (8th edn, Palgrave Macmillan 2013).
○ William Wilson, Criminal Law (6th edn, Pearson Education Limited 2017).

➢ Journal Articles:
○ Andrew Simester, ‘Why Omissions are Special’ (1995) 1 LEG 311.

➢ Websites:
○ Samuel Carthy, ‘A Critical Analysis of the Criminalisation of Omissions’ (Trinity
College Law Review)
<https://trinitycollegelawreview.org/a-critical-analysis-of-the-criminalisation-of-o
missions/> accessed 9 December 2021.
○ Kousini Gupta, ‘Actus Non Facit Reum Nisi Mens Sit Rea – Legal Maxim’ (Law
Times Journal, 26 June 2019).
<https://lawtimesjournal.in/actus-non-facit-reum-nisi-mens-sit-rea/> accessed 8
December 2021.