Omissions in English criminal law
Encyclopedia
The omissions of individuals are generally not criminalised in English criminal law
, subject to situations of special duty, contractual duty, and the creation of dangerous situations. Whilst other jurisdictions have adopted general statutory duties to rescue, it is not recognised in English law that an individual has any duty to assist strangers in situations of peril. Proponents of the current legal position regard it as wrong for the criminal law to punish individuals for committing no physical act, which it is argued would be an infringement on human autonomy. Academics arguing for reform argue that a social responsibility to assist others should exist, particularly where there would be no danger to the rescuer.
Liability for omissions has long existed where a pre-existing duty can be established between two parties. For example, where an individual accidentally creates a small fire in a flat, he is under a duty to take reasonable steps to extinguish it, or to summon help. A special duty also exists between parents and their children, and an omission of a parent to save their young child from drowning would result in criminal liability, as it is deemed a parent voluntarily undertakes to ensure the wellbeing of their child. Other duties may be inferred from contractual obligations, and so an individual employed to ensure individuals do not cross a railway line while there are trains running would be found criminally negligent where he abandoned his post.
The courts were initially reluctant to impose liability for omissions, as demonstrated by the early case of R v Smith, decided in 1869. The facts were that a watchman
employed by a railway company took a break from his duties, and in this time a man was killed by an oncoming train. Lush LJ held that whilst an omission could constitute an act of murder, because there was no statutory duty for the railway to provide a watchman, there could not be any criminal liability. However, thirty years later, in the case of R v Pittwood, the court adopted a different stance to a case of similar facts. In this case, a gatekeeper for a railway service in Somerset negligently forgot to close a gate – allowing access by cars to a railway line – whilst going to lunch. It was held that despite the fact he was privately employed, he had materially contributed to the following accident, by opening the gate and then failing to close it. The reasoning used by the courts in this case however can be seen as problematic in establishing liability for omissions. Wright LJ's position was that the watchman's misfeasance in itself contributed to the accident, which would suggest that it was his opening of the gate which was criminalised, rather than his failure to shut it. It has been submitted by John Smith
that this decision implies the result would have been different if the watchman had come on duty to find an open gate, and had subsequently not shut it, an outcome which Smith describes as "morally offensive". In any case, the decision shows the general reluctance of English courts to outright state that an omission may be criminal, and it has been said that such attempts to distinguish between acts and omissions are at least unhelpful, and possibly dangerous.
A modern recognition by the House of Lords
that a failure to act can result in criminal liability can be found in R v Miller
. In this case a squatter occupying a house fell asleep whilst smoking a cigarette
, resulting in a small fire starting on his mattress. Rather than putting out the fire, he removed into an adjacent room, and fell asleep, resulting in the house catching fire. The defendant was charged arson
, under the Criminal Damage Act 1971. In dismissing his appeal that a failure to act could not generally result in criminal liability, Lord Diplock stated that:
It is suggested that the principles set out in R v Miller are likely applicable to any instance where an individual, in negligently creating a risk, fails to take steps that any reasonable individual would to avert risk to others. Whilst no general duty would exist for an uninvolved individual to try to stem a fire, or to call the fire brigade, it is the causal link between an individual's actions in creating a risk which result in a duty arising to prevent others from harm.
Following R v Gibbins & Proctor, and the passing of the Children and Young Persons Act 1933
, it became a criminal offence to neglect a child in a way which would likely cause injury or risk to health. It is still likely however that following the more recent case of R v Stone & Dobinson, a conviction for manslaughter or murder would arise, where the neglect or lack of care by a parent is either intentional, or grossly negligent.
Other instances in which a duty may arise include spousal relationships, and family relations, where they are of sufficient proximity. A recent case affirming a duty to a spouse is R v Hood, where the Court of Appeal upheld a husband's conviction of gross negligence manslaughter, where had failed to summon medical attention to his wife – a sufferer of osteoperosis – after she fell and broke a number of bones. Familial relationships have been found to infer a duty to act where the proximity of the two family members is that of the same household, as shown by the cases of R v Stone & Dobinson and R v Chattaway, where neglect for an elderly sister and a daughter resulted in convictions of murder and manslaughter.
English criminal law
English criminal law refers to the body of law in the jurisdiction of England and Wales which deals with crimes and their consequences. Criminal acts are considered offences against the whole of a community...
, subject to situations of special duty, contractual duty, and the creation of dangerous situations. Whilst other jurisdictions have adopted general statutory duties to rescue, it is not recognised in English law that an individual has any duty to assist strangers in situations of peril. Proponents of the current legal position regard it as wrong for the criminal law to punish individuals for committing no physical act, which it is argued would be an infringement on human autonomy. Academics arguing for reform argue that a social responsibility to assist others should exist, particularly where there would be no danger to the rescuer.
Liability for omissions has long existed where a pre-existing duty can be established between two parties. For example, where an individual accidentally creates a small fire in a flat, he is under a duty to take reasonable steps to extinguish it, or to summon help. A special duty also exists between parents and their children, and an omission of a parent to save their young child from drowning would result in criminal liability, as it is deemed a parent voluntarily undertakes to ensure the wellbeing of their child. Other duties may be inferred from contractual obligations, and so an individual employed to ensure individuals do not cross a railway line while there are trains running would be found criminally negligent where he abandoned his post.
History of omissions
| "A number of people who stand round a shallow pool in which a child is drowning, and let it drown without taking the trouble to ascertain the depth of the water, are no doubt shameful cowards, but they can hardly be said to have killed the child." |
| The general approach taken to omissions, as outlined by James Fitzjames Stephen James Fitzjames Stephen Sir James Fitzjames Stephen, 1st Baronet was an English lawyer, judge and writer. He was created 1st Baronet Stephen by Queen Victoria.-Early life:... , History of Criminal Law (1883), Vol 111, p. 10 |
The courts were initially reluctant to impose liability for omissions, as demonstrated by the early case of R v Smith, decided in 1869. The facts were that a watchman
Watchman
Watchman or Watchmen may refer to:*Watchman , a member of a group who provided law enforcement**Security guard or watchman, a person who watches over and protects property, assets, or people...
employed by a railway company took a break from his duties, and in this time a man was killed by an oncoming train. Lush LJ held that whilst an omission could constitute an act of murder, because there was no statutory duty for the railway to provide a watchman, there could not be any criminal liability. However, thirty years later, in the case of R v Pittwood, the court adopted a different stance to a case of similar facts. In this case, a gatekeeper for a railway service in Somerset negligently forgot to close a gate – allowing access by cars to a railway line – whilst going to lunch. It was held that despite the fact he was privately employed, he had materially contributed to the following accident, by opening the gate and then failing to close it. The reasoning used by the courts in this case however can be seen as problematic in establishing liability for omissions. Wright LJ's position was that the watchman's misfeasance in itself contributed to the accident, which would suggest that it was his opening of the gate which was criminalised, rather than his failure to shut it. It has been submitted by John Smith
John Cyril Smith
Sir John Cyril Smith, CBE, QC, FBA, was an authority on English criminal law and the philosophy of criminal liability. Together with Brian Hogan he was the author of Smith & Hogan's Criminal Law, arguably the most respected undergraduate text on English criminal law...
that this decision implies the result would have been different if the watchman had come on duty to find an open gate, and had subsequently not shut it, an outcome which Smith describes as "morally offensive". In any case, the decision shows the general reluctance of English courts to outright state that an omission may be criminal, and it has been said that such attempts to distinguish between acts and omissions are at least unhelpful, and possibly dangerous.
A modern recognition by the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
that a failure to act can result in criminal liability can be found in R v Miller
R v Miller
R v Miller [1982] UKHL 6 is an English criminal law case demonstrating how actus reus can be interpreted to be not only an act, but a failure to act.-Facts:Miller, a vagrant, accidentally set fire to a mattress in a house in which he was sleeping...
. In this case a squatter occupying a house fell asleep whilst smoking a cigarette
Cigarette
A cigarette is a small roll of finely cut tobacco leaves wrapped in a cylinder of thin paper for smoking. The cigarette is ignited at one end and allowed to smoulder; its smoke is inhaled from the other end, which is held in or to the mouth and in some cases a cigarette holder may be used as well...
, resulting in a small fire starting on his mattress. Rather than putting out the fire, he removed into an adjacent room, and fell asleep, resulting in the house catching fire. The defendant was charged arson
Arson
Arson is the crime of intentionally or maliciously setting fire to structures or wildland areas. It may be distinguished from other causes such as spontaneous combustion and natural wildfires...
, under the Criminal Damage Act 1971. In dismissing his appeal that a failure to act could not generally result in criminal liability, Lord Diplock stated that:
I see no rational ground for excluding from conduct capable of giving rise to criminal liability, conduct which consists of failing to take measures that lie within one's power to counteract a danger that one has oneself created, if at the time of such conduct one's state of mind is such as constitutes a necessary ingredient of the offence.
It is suggested that the principles set out in R v Miller are likely applicable to any instance where an individual, in negligently creating a risk, fails to take steps that any reasonable individual would to avert risk to others. Whilst no general duty would exist for an uninvolved individual to try to stem a fire, or to call the fire brigade, it is the causal link between an individual's actions in creating a risk which result in a duty arising to prevent others from harm.
Situations creating a duty to act
Various situations exist in which the courts will impose a duty to act, generally resulting from a pre-existing relationship or contractual duty. Despite the reluctance of English criminal law to impose liability for omissions, there also exist a number of statutes which create criminal offences for a failure to undertake a certain act, as well as others which have been interpreted to impose liability for a failure to act.Duties arising out of a relationship
It has long been held that a parent owes a duty to their child to ensure they do not suffer any unreasonable detriment to health or safety. Thus a parent who omits to feed or properly care for their child may face criminal repercussions for subsequent death or injury. An early example of this principle was given by the case of R v Gibbins & Proctor, where the court ruled that it was so self-evident that it did not require analysis or authority. In upholding convictions for murder resulting from two parent's starvation of their child, Darling J quoted from the earlier case of R v Instan, a case of similar neglect for a vulnerable individual, that:"There is no case directly in point, but it would be a slur upon, and a discredit to the administration of, justice in this country if there were any doubt as to the legal principle, or as to the present case being within it."
Following R v Gibbins & Proctor, and the passing of the Children and Young Persons Act 1933
Children and Young Persons Act 1933
The Children and Young Persons Act 1933 is an Act of the Parliament of the United Kingdom of Great Britain and Northern Ireland...
, it became a criminal offence to neglect a child in a way which would likely cause injury or risk to health. It is still likely however that following the more recent case of R v Stone & Dobinson, a conviction for manslaughter or murder would arise, where the neglect or lack of care by a parent is either intentional, or grossly negligent.
Other instances in which a duty may arise include spousal relationships, and family relations, where they are of sufficient proximity. A recent case affirming a duty to a spouse is R v Hood, where the Court of Appeal upheld a husband's conviction of gross negligence manslaughter, where had failed to summon medical attention to his wife – a sufferer of osteoperosis – after she fell and broke a number of bones. Familial relationships have been found to infer a duty to act where the proximity of the two family members is that of the same household, as shown by the cases of R v Stone & Dobinson and R v Chattaway, where neglect for an elderly sister and a daughter resulted in convictions of murder and manslaughter.