2 - Omissions

Actus Reus - Omissions Elements of Criminal Liability
The Law Bank

Elements of Criminal Liability
Actus Reus - Omissions
1
The Law Bank
Objectives
Identify what an omission is

Describe how omissions can create criminal
liability

Apply omissions to case examples
2
The Law Bank
General Rule
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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The Law Bank
General Rule #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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The Law Bank
5
DPP v Santana-Bermudez (2003)
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
The Law Bank
What does an omission look like?
You have five
sets of facts only
ONE of them is
not criminal.
Try to:
Decide which is
the odd one out
Explain why the
remaining four
should be liable
Explain why
these are
exceptions to the
general rule
above

6
D invites his sister to come and
stay with him. Whilst she is
there, she refuses to eat any
food and dies of malnutrition
D walks home from his job
as a lifeguard. As he walks
past the local river he sees
a child in there struggling.
He walks past.
DDs daughter had diabetes.
As a result of their beliefs,
they refused to let doctors
treat her with insulin
and she died.
D is searched by a police officer
who asks him if he has anything
in his pockets. D replies no,
but has a needle which
stabs the officer.
D walks home from his job
as a lifeguard. As he walks
he sees a child in the local river
struggling. He jumps in to save V,
but in the resuscitation accidently
breaks one of her ribs
resulting in Ds death
The Law Bank
The General Rule
Definition: An omission is a failure to do something. They come largely
from the common law which means that they are created by the courts.
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General Rule:

In law we always need an illustration or precedent to prove our point.
Research this case and see what it says about the omission general rule.
Airedale NHS Trust v Bland [1993] 1 All ER 821
(click on name or photo for a starter news story)

Extension question is it always easy to divide
actions into acts and omissions?

The Law Bank
What is a duty of care?
Legal not a moral decision
8
Donoghue v Stevenson 1932:

A criminal example
R v Winters (2010)

The Law Bank
9
R v Winter & Winter [2010] EWCA Crim 1474
There was a fire on a farm. DD had stored fireworks in a metal container, which
they had no licence for. The fire brigade were called. V1 was the media spokesman
for the fire brigade, and V2 was the camera man. They were told to pull back,
including by one of the defendants. However, they didnt and the container
exploded killing both victims.

Principle Martin Winter and his son Nathan, the factory owners, were experts in
handling and storing everyday fireworks. They knew that fireworks should be
treated as explosives and they knew they had a duty to take reasonable care to
protect the public. This responsibility is recognised by the law. "The jury decided
that both defendants breached that duty of care; they were fully aware of the
legislation and the different hazard classifications given to fireworks. They knew
that storing certain fireworks with others in a metal container posed a high risk of
mass explosion.
The Law Bank
Duty Arising From Statute
Direct liability examples of offences created by statute
that make an omission culpable can be seen in the
following pieces of legislation:

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s.1 The Children and Young Persons Act 1933
s170 Road Traffic Act 1988
Look at the excerpts from this legislation on your
desk and identify the statutory omission in each

The Law Bank
Duty Arising From Statute
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s.1 The Children and Young Persons
Act 1933 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.
failing to stop at a road accident
is a criminal offence. The
omission to stop is part of the
actus reus.
Under breathalyzer 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.
The Law Bank
Duty Arising From a Special Relationship
In addition to the statutory
requirement, (s.1 Children
and Young Persons Act
1933( 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 R v Gibbins
and Proctor (1918)
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The Law Bank
13
R v Gibbins & Proctor [1918] 13 Crim App Rep 184
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.
The Law Bank
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
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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The Law Bank
15
R v Stone & Dobinson [1977] 1 QB 354
Td Stone was 67, totally blind, partially deaf had no appreciable sense of smell and
was of low intelligence. He lived with his housekeeper and mistress of 8 years,
Gwendolyn Dobinson aged 43 who was described as ineffectual and inadequate.
Ted's sister Fanny came to live with them. She had previously lived with another
sister but had fallen out with her. She had mental problems and was suffering from
anorexia nervosa. Ted and Gwendolyn took her in and agreed to look after her.
However, Fanny's condition deteriorated and she was found dead in her bed in
appalling conditions.

Principle Stone and Dobinson were found liable for her death as they had
assumed a responsibility to her by taking her in. They failed to look after her and
ensure she got the medical help she needed.
The Law Bank
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.
The principle in Pitwood
would extend to liability for a
lifeguard at a swimming
pool.

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The Law Bank
17
R v Pitwood [1902] TLR 37
The defendant was employed by a railway company to man the gate at a level
crossing. The defendant lifted the gate to allow a cart to pass and then went off to
lunch failing to put it back down. A train later collided with a horse and cart killing
the train driver.

Principle The defendant was liable for the death of the train driver as it was his
contractual duty to close the gate.
The Law Bank
Public Position Requires Action
Compare the key cases of
Dytham & Naughton

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The Law Bank
19
R v Dytham [1979] QB 722
The defendant was a police officer. He stood by whilst a bouncer kicked a man to
death. He was charged with the offence of misconduct in a public officer. He argued
that the offence could not be committed by an omission as it specifically requires
misconduct.

Principle The offence of misconduct in a public offence can be committed by an
omission. The defendant's conviction was upheld.
The Law Bank
20
R v Naughton (2001) Unreported
An off-duty police officer from Birmingham, did not intervene when one of his
friends attacked a restaurant owner.

Principle He was convicted of misconduct in a public office. He resigned from
the police force without a pension, and was ordered to do 200 hours community
punishment.
The Law Bank
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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The Law Bank
22
R v Miller [1983] 2 AC 161 House of Lords
The defendant had been out drinking for the evening. He went back to the house
he had been staying in and fell asleep on a mattress with a lighted cigarette in his
hand. He awoke and saw that the cigarette had started a small fire. Upon seeing the
fire, he then got up and went to another room and went back to sleep. At his trial,
the prosecution did not rely on the acts of the defendant in falling asleep with a
lighted cigarette as being reckless, but relied solely on the grounds that upon
becoming aware of the fire he failed to take steps to put the fire out or call the fire
brigade.

Principle The defendant had created a dangerous situation and owed a duty to
call the fire brigade upon becoming aware of the fire. He was therefore liable for his
omission to do so.
The Law Bank
23
DPP v Santana Bermudez (2003) UKHL 6
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.
The Law Bank
Is there a new situation on the block?
R v Khan & Khan has made it clear that the courts could develop more
duty situations.
They had already done this with the case of Wacker but the most
recent situation is detailed in the edited law report in your workbook

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R v Evans (Gemma) 2009
1. What happened?
2. What is the main problem with
omissions?
3. What was the outcome of the
appeal?
4. Which duty could not be used to
convict D and why?
5. Name one case which was
followed by the CA in this
decision?
6. What was the duty which was
developed by the CA here?
7. Do you agree that D was under
a plain and obvious duty? Why?

Click on the picture or name box
to take you an overview
of the complex issues and give you the answer
The Law Bank
Try these.
Applying your
understanding of
the topic of
omissions and
the skills required
to apply the law
successfully,
write a short
paragraph
explaining the
liability of each of
the following
defendants.

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D, a teacher, decides to read her book whilst on a school
trip. V, a pupil, slips and falls into a pond and drowns.
D, a paramedic on duty, cycles past a woman lying on the
pavement bleeding. She dies.
D, tells V that his car is safe to borrow, even though it is
made of two separate cars welded together. V is driving
down the motorway when the car splits in two and V
crashes, dying.
D, takes care of her elderly mother, bringing her food every
day. D then wins the lottery and books herself on a cruise,
but does not arrange care for her mum and she dies of
malnutrition.
The Law Bank
Plenary
1. Neigh neigh choo choo
2. Fannys been awful quiet
recently
3. Is that a needle in your pocket,
or are you just unhappy to see
me?
4. My wicked stepmother didnt
even give me an apple!
5. I may be a policeman, but I
dont care.
6. Cigarette meets mattress
7. Isnt he vegging out? Can we
(not) do something?
8. Aunt I a lovely girl?
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1 Mark for the name

a mark for the facts

1 mark for the duty
The Law Bank
Objectives
Identify what an omission is

Describe how omissions can create criminal
liability

Apply omissions to case examples
27

2 - Omissions

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Actus Reus - Omissions Elements of Criminal Liability

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