Omissions essay [50 marks]

AO1

 The actus reus of a crime is the physical element and normally requires a positive, voluntary
act.
 However, offences may be brought about by an omission; a failure to act when there is a duty
to do so.
 The normal rule is that an omission cannot make a person guilty of an offence. There are
exceptions to this rule; the failure to act can sometimes be the actus reus of a crime.
 There are 6 ways in which this can exist.
 A statutory duty: an Act of Parliament can create liability for an omission. For example,
failing to report a road traffic accident under the Road Traffic Act. Another example is failing
to stop a dangerous dog entering a place it is not permitted to be and injuring somebody under
the Dangerous Dogs Act. This was shown in the case of Greener where D omitted to take a
positive step to stop his dog entering a garden and biting the face of a young child.
 A contractual duty: a duty based on an official position, usually created through a contract
of employment This was shown in Pittwood where D, a railway-crossing keeper, omitted
to shut the gates with the result that a person crossing the line was killed by a train. D
was guilty of manslaughter because he had a contractual duty due to his employment to
shut the gates. This omission resulted in the death of V. This was also shown in Adomako
where D owed a contractual duty of care to a man in an operation, and omitted to act
when a tube supplying oxygen became disconnected resulting in his death.
 A duty because of a relationship: This is usually a parent-child relationship as a parent has a
duty to care for a young child. This can also exist the other way around i.e. when a grown-up
child is caring for an elderly parent. A case example showing this is Gibbins and Proctor
where D and his mistress deliberately starved D’s daughter to death by omitting to feed
her. D and his mistress had a duty to feed her because D was his parent and the mistress
undertook to look after the child. The omission was deliberate with the intention to kill
so they were guilty of murder.
 A duty undertaken voluntarily: this duty is based on the reliance of one person on another.
This has been taken on voluntarily and therefore is expected to be carried out. This was
shown in Stone and Dobinson where Fanny, Stone’s elderly sisters, came to live with the
defendants. Fanny failed to eat so became bedridden and incapable of caring for herself.
One at least one occasion Dobinson helped to wash Fanny. Fanny died from
malnutrition and both were found guilty of her manslaughter. As she was Stone’s sister
he owed a duty of care to her. Dobinson undertook some care of her so also owed her
this. The failure to care for her meant they were in breach of their duty.
 A duty through one’s official position: Very rare but happened in Dytham where D was a
police officer on duty took no steps in intervening V being kicked to death. He was
convicted of misconduct in a public office. Because he was a police officer he was guilty
of wilfully/without reasonable excuse neglecting to perform his duty.
 Duty based on creation of a dangerous situation and need to act reasonably: This was
shown in the case of Miller where D was squatting. He accidentally set his mattress on
fire and did not attempt to put it out or summon help and the house caught on fire. He
was convicted of arson. This omission was sufficient for the actus reus of arson.
 There are particular difficulties relating to involuntary manslaughter and omissions. Unlawful
act manslaughter cannot be committed by an omission. There must be an act, decided in
 Lowe where D was convicted of wilfully neglecting his baby son (manslaughter) and
omitting to take it to a doctor. COA quashed the conviction because there was no
unlawful ‘act’ – a failure to do something cannot be an ‘act’.
 There are cases where doctors stop treating patients as this in their best interests. This is not
an omission which can form the actus reus. This was decided in Bland where D was in
persistent vegetative state. The court ruled doctors could stop artificially feeding him
even though he would die as a result as this was in his best interests.

AO2

 Some other countries e.g. France have a ‘Good Samaritan’ law, which makes a person
responsible for helping other people in an ‘emergency situation’. Commentators of the law
suggest this law should be imposed in the UK because our current law on omissions is
unsatisfactory and does not balance legal principle and public policy effectively.
 However, there are problems enforcing such a law. What if somebody was to pretend to be
hurt in order to lure a stranger in so they can then rob them? Or what if an untrained person
intervenes and could therefore do some sort of harm to the injured person? Also, what is an
‘emergency situation’? Should would-be rescuers have to put themselves at risk in order to
help? Looking at these debates, it can be said that the current law on omissions is satisfactory
as it stops anything like this happening.
 The answer could possibly be found in enforcing a partial Good Samaritan law, where the law
on omissions is stricter but not the extent where people have to put their lives at risk. This
reform could be, for instance, a list of obvious situations where a person is required to act and
if not could be liable for a criminal offence. For example, if A sees B drowning and A is just a
passer-by, A would be expected to either help save B’s life without putting themselves at risk,
or to summon help. The current law on omissions would not require A to do this. Creating
this type of rule would be seen as a welcome improvement by many.
 However, the point of law is not to promote good behaviour but to stop bad behaviour.
Conflicting interests exist here and the purpose of the law needs to be taken into account.
 One area where the law seems contradictory is in the duty of doctors. If a doctor decides it’s
in the patient’s best interest to withdraw feeding, they are not liable for any offence in respect
of the death. This was the effect of the judgement in Bland. The key issue here is that it must
be in the best interest. However, the House of Lords have emphasised that euthanasia
(essentially the same thing as withdrawing feeding) by a positive act terminating the patient’s
life would remain unlawful. This is a clear contradiction as the same result is achieved just
through a different route being taken. It may be the case that reform is needed in this area; for
example, if a patient’s state is so severe such as persistent vegetative state, euthanasia by a
positive act should be allowed by law.
 Due to the omission exceptions, the Latin phrase actus reus is not an accurate description of
conduct which can be sufficient to make somebody liable for an offence. Actus reus means an
act yet the law clearly recognises that a failure to do so can be sufficient for liability. The Law
commission in its Draft Criminal Code preferred the phrase ‘external element’ as this is a
much more accurate description and avoids confusion with the Latin meaning.
 There are many ways in which the law on omissions is sufficient. For example, a duty
because of a relationship. If this did not exist, the defendants in Gibbins and Proctor would
not have been convicted of murder despite the fact they deliberately let a little girl die. This is
clearly immoral and the law on omissions is satisfactory in the sense that it does not allow
people to deliberately starve their children and get away with it on account of manslaughter.