Omissions

Introduction
In Lowe, Phillimore L.J. says:
We think there is a clear distinction between an act of omission and an act of
commission likely to cause harm.
That distinction is that the common law has consistently refused to accept a failure to act as the
basis for criminal liability. In 1876, Fitzjames Stephen, in his Digest of the criminal Law, gave
us the classic example of the passer-by who sees a child drowning in a shallow pool - he can
easily stretch out a hand to rescue the child but does not and the child drowns. The passer-by
commits no criminal offence - as a general rule, we have no obligation to play the Good
Samaritan to people in peril.
However, the law does recognise some liability - in Pittwood (1902) 19 TLR 37, the defendant
was a gatekeeper on the Somerset and Dorset Railway whose duties were to keep the gate shut
whenever a train was passing along the line. He opened the gate to let a car pass, forgot to shut it
and went off to eat his lunch. As a result, a haycart crossing the line was struck by a train and a
person killed. The defendant argued that he was under no legal duty to the deceased but Wright
J held that the duty arose under his contract of employment. But he also stated that,
There might be cases of misfeasance and non-feasance. Here it was quite clear that
there was evidence of misfeasance....
Does this mean that the judge saw the situation, not as an omission, but as commission/conduct?
Coincidence of actus reus and mens rea
A small digression - if we choose to analyse it as a positive act/commission, then there is a
problem. It is a general principle of criminal law that the mens rea of the offence must exist at
the time of the actus reus - in other words, there must be coincidence of actus reus and mens rea.
If we look at Pitwood in this light, we can see that at the time of the act (opening the gate), there
was no mens rea and that when he recklessly failed to close it, there was no positive act, only an
omission.
A court has two possible approaches - the first of these is to regard this sequence of events as a
continuing course of conduct, gatekeeping, and not as an omission to act at all. Alternatively it
can impose liability for omissions. The English courts adopt both approaches.
In Church (1965) the defendant attacked a woman and rendered her unconscious. Believing he
had killed her, he threw what he thought to be a corpse into the river. She died of drowning. The
court sees this as a series of events, culminating in the victim's death. It is a continuing course of
conduct in which it is seen as artificial to separate out particular moments of time and insist
upon exact coincidence. Lane in Le Brun (1991) said

'...an act which causes death and the necessary mental state to constitute manslaughter
need not coincide in point of time.'
Also read Thabo Meli.
In Miller, the defendant was squatting in a house owned by a housing association. He went to a
bedroom, lay down, lit a cigarette and went to sleep. He awoke to find the mattress alight and
smouldering. He did nothing to put out the fire but merely moved to an adjoining room and went
back to sleep. The house caught fire and was extensively damaged. The defendant was charged
with arson under s.1(1) and (3) of the Criminal Damage Act 1971. This requires that the damage
be caused intentionally or recklessly. It was accepted that the initial act of setting the mattress on
fire was an accident. But he then recklessly failed to extinguish the fire - as a result of that, the
damage was caused.
Is this a continuing course of action?

On one hand, these events can be analysed (as was done by the Court of Appeal) as a
whole course of conduct from the falling asleep to the walking away from the
smouldering mattress. The defendant sets in train events and, if at any stage he becomes
aware of the danger and fails to act to minimise the damage, then he is deemed to act
recklessly in causing it. This avoids imposing liability for omissions but also requires
that we invent a fiction - that the defendant was reckless at the time that he dropped the
cigarette.

or....an omission?

There is an opposite view - that we should expressly recognise liability for failure to act
where there is a legal duty to act. Instead of looking at these cases as embodying conduct
through the idea of the continuing act, more realistically we can regard the behaviour as
a failure to act and then decide in what circumstances we are going to punish such
failures. In the House of Lords judgment in Miller, Lord Diplock specifically refers to
these competing theories and decides that the omission/duty approach is preferable,
albeit for the not very intellectual reason that it is easier to explain to juries. The question
then arises as to when and where the law imposes duties to act so that a failure to carry
out that duty becomes criminal?

A General Duty?
The first thing to note is that there is no general duty to act -several people have proposed such a
general duty, especially in cases of homicide, arguing that the interference with individual liberty
which is involved in compelling a person to act to save another is offset by the overall good of
saving human life. In principle, is failure to act really to be distinguished from the act itself?
Against this, there is a pragmatic problem of causation - it is much more difficult to show that
someone's inactivity causes harm than that positive conduct has such an effect. The causal link
becomes more remote - would the victim have drowned before the good Samaritan arrived?
Clearly there is a 'but for' problem - but one might argue that it is ultimately a test of proximity
and predictability and surely these are issues that can be left to the jury.

However the court's position is that it is only where there is a particular duty to act, rather than
an undifferentiated general duty, that the causal link becomes immediate rather than remote. In
these situations we are using a rule of law to establish causation rather than treating it as a matter
of fact. But what are these particular duties?
Particular duties
There are five of these:
Special Relationships
The common law imposes a duty to act where there is a family relationship, especially between
parents and children as well as spouses. In Downes (1875) 13 Cox 111, the father was a member
of a religious sect known as the Peculiar People who believed in the power of prayer rather than
in orthodox medicine. He failed to call a doctor for his sick child who died. The father was
convicted of the child's manslaughter. This duty is now imposed by statute under s.1(2)
(a)Children and Young Persons Act 1933 where it becomes an offence wilfully to neglect a child
under 14 by failing to provide medical aid.
But once a child is grown up, the duty only exists where it has been voluntarily undertaken and
not simply because of the blood relationship.
In Smith (1979) Crim L R 251, the defendant had a wife that was averse to hospitals. She
refused to go into hospital for the birth of her third child and the baby was still-born and its body
secreted at the house. The wife became ill, refused to allow the defendant to call a doctor.
Eventually a doctor arrived but the wife died of puerperal fever - there was evidence that she
might have been saved, even if the medical help had arrived a day or so earlier. The jury
disagreed on the issue of manslaughter. Again there is a statutory duty owed by spouses to each
other - National Assistance Act 1948 ss. 48, 51. Separated spouses would not owe each other a
duty unless it was voluntarily undertaken.
You could ponder on the legal implications of Re B (1981) 1 WLR 1421 where parents refused
consent for an operation on a new-born baby suffering from Down's Syndrome. Without the
operation the child would die the court case involved the child being made a ward of court and
the court gave consent in the interests of the child. The court regarded the parents' decision (to
let the child die!) as 'entirely responsible' and foresaw situations where the court would not give
consent i.e the legal duty to act is not absolute but contingent. But on what is it contingent? It
raises difficult questions about the standard of care that is to be applied. In Bland and in
FrenchayHealthcare NHS Trust (1994) the key issue is what would be in the best interests of the
patient- medical opinion
is not final on this although it would only be questioned when there are doubts about the
reliability or bona fides of that opinion.
Where the duty is assumed by conduct

The common law will imply a duty where the defendant has voluntarily undertaken the care of
another who is unable to care for him/herself. This will be more easily implied where the
defendant is related to the victim or if there is any suggestion of remuneration.
In Instan (1893), both of these elements are present. Kate Instan lived with her aunt and appears
to have been maintained by her aunt's money. The aunt, 73, develops gangrene in her leg, cannot
move about or summon help. Kate Instan knows of her plight but gives her no food nor seeks
medical help. Coleridge LCJ says that clearly a moral duty here but that every moral duty does
not imply a legal duty. But here a clear duty arose 'to sustain life'.
In Stone and Dobinson, the two defendants lived together and Stone's sister came to the house as
a lodger. Fanny was eccentric and a classic case of anorexia nervosa. She becomes inform,
unable to look after herself but also unwilling to let the defendants do anything. The defendants
are concerned but are themselves rather inadequate and make somewhat desultory attempts to
find the doctor and to bath her. Eventually Fanny's body is discovered in the most appalling
squalor. Lord Lane C.J. suggested that as Fanny was a blood relative and a lodger, a duty had
been both cast upon the defendants and assumed by them. Another aspect of this case is not just
the issue of when does a duty arise but to what standard must it be carried out? The defendants
here were clearly hopeless - they tried to find Fanny's doctor but went to the wrong village, they
couldn't handle the telephone, they spent every night in the pub and were clearly intimidated by
Fanny's refusal to let them help her in any way. Yet they were judged, not by whether they were
doing their inadequate best, but almost by the standards of the efficient social worker!
Where the duty is assumed under contract
In Dytham (1979) 3 All E R 641, the defendant was a policeman. on duty in uniform at about 1
am near a club. A man was ejected from the club and then violently assaulted by men who
kicked him to death. The defendant took no steps to intervene and just drove away when it was
over. Charged with a common law offence of misbehaviour in a public office, which was the
failure to carry out his duty. He was convicted and fined 150 - a constable's duty to act might be
seen as imposed at common law generally, by statute but also by his contract of employment.
Pittwood is another example of the same duty.
Where the duty is imposed by statute
Often these are conduct crimes in themselves - that is, the statute imposes liability for the failure
to act and not for any ulterior harm that may flow from that conduct. Thus s.25 Road Traffic Act
1972 criminalises failure to stop after a traffic accident. The Health and Safety at Work
legislation would penalise the failure to fence in dangerous machinery.
In Lowe (1973) the defendant is charged with both manslaughter and under s.1(1) CYPA 1933
which forbids wilful neglect of a child. The defendant was again of low intelligence and failed to
call a doctor to his 9-week old child. The child died, grossly emaciated and dehydrated. Lowe
was convicted of the statutory offence but on the
issue of manslaughter by omission, Phillimore L.J. held that the defendant's omission had to
exhibit a high degree of recklessness before there was liability for manslaughter. Had this been
positive conduct on Lowe's part, a lesser standard would have applied.

Where the defendant has created a dangerous situation

As I suggested, Miller is best analysed as involving two moments in time:
1. the first is when Miller's action causes the fire - here the actus reus is present but it
is an accident and there is no mens rea
2. the second is when Miller fails to extinguish the fire - here there is no positive
conduct but there is mens rea, recklessness.
The House of Lords hold that, having created the dangerous situation, there arises a duty on
Miller to prevent further harm. His failure to do so becomes the actus reus and the mens rea is
present - thus he can be convicted.
This is also the best way to analyse Fagan (1969), though it is not the approach that the court
adopts. Fagan was directed by a policeman to pull his car into the side of the road. His mini
came to rest, inadvertently, on the officer's foot. When told, "Get off, you are on my foot", Fagan
was somewhat abusive, switched off the ignition and remained in the car. The trial court felt
there was a reasonable doubt whether Fagan had deliberately driven onto the foot but decided
that he knowingly allowed the car to remain there and thus convicted him. The Divisional Court
upheld the conviction, feeling that this was not a mere omission and that mere omission could
not amount to an assault. It might be possible to regard this as a continuing ACT which becomes
criminal when Fagan
decides to leave the car wheel on the policeman's foot. But after Miller, it is surely easier to
consider this as a dangerous situation created by the defendant which he fails to rectify.
Thou shalt not kill; but needst not strive
Officiously to keep alive
(Clough: The New Decalogue)