Kleopatra Yfanti

"We all have a ‘social responsibility’, as fellow citizens, to assist a vulnerable person when we are aware that they are in peril and we are in a reasonable position to prevent the harm. An omission to do so should, under certain conditions, establish criminal liability."

The first exception to the general rule is that a duty to act can apply, where there is a close relationship between parties[1]. For instance, it is defined in common law that parents are under a legal duty to protect and care for their children[2], as doctors have a duty to look after their patients[3]. However, the lack of case law creates uncertainty and it is ambiguous whether this duty can apply to siblings, cohabiting friends, unmarried couples or former spouses[4]. In the case of Smith[5] it was suggested that a married couple has a duty to care for each other, although this was not counted on in Hood[6] where the decision that was made emerged from the voluntary responsibility that the husband took over to take care of his wife.

Assumption of care duties is another exception to the general rule, in situations where D voluntarily has undertaken the care of V when V requires that care, despite the relationships between them[7]. In Stone and Dobinson, Lord Lane LJ stated that: ‘There is no dispute, broadly speaking, as to the matters on which the jury must be satisfied before they can convict of manslaughter in circumstances such as present. If 1) the defendant undertook the care of a person who by reason of age or infirmity was unable to care for himself; 2) the defendant was grossly negligent in regard to his duty of care; 3) by reason of such negligence the person died...’[8]. Moreover, in R v Instan[9] B. Hogan criticises omissions liability from the view of causation. It was the nieces’ omitting behavior that caused her aunt’s death. B. Hogan claims: ‘What was determined in R v Instan was that the niece had taken it upon herself to look after her aunt. She had no duty to do so… but having undertaken a certain task it must be performed properly… the duty concept in the context of “omission”… is likely to mislead a jury into thinking of duties in other than legal terms; into a consideration of the immorality of a particular conduct; into convicting the defendant merely for his callousness. Better to put the issue as simply one of causation…’[10].

As it can be seen from the case of Pittwood,[11]  whoever is under a contractual duty to act but fails to comply with his contractual terms, might be held criminally liable[12]. Professor Hogan mentions again here how an omission can cause a prohibited result by saying specifically: ‘The issue in R v Pittwood was simply whether the defendant has caused the deaths of the victims with the relevant mens rea… and looking at the totality of his conduct it can easily be said that he created a situation of danger which caused harm to the victim[13].’ Analogously, in the case of Dytham[14] an individual who works for a public authority has a duty to act correspondingly to his position[15]. However, B. Hogan has argued that law should not penalize defendants like Dytham for a harm that they did not prevent, only for those that they have caused negligently[16]. Lastly, legislation has created some cases where a person has a duty to act, such as s 2 of Mental Capacity Act 2005[17], which makes it an offence if a defendant neglected to take care of someone that lacks the mental capacity to provide for himself and s 170, Road Traffic Act 1998[18], which states that a person who will not report or give information to the police after an accident can be criminally liable.

The last exception to the general rule, is a duty arising from the creation of a dangerous situation by D[19]. For example, in the Miller[20] case the defendant failed to act in order to deter the danger after he had caused a fire by falling asleep and he was sentenced for arson. Individual’s freedom here is not being confined by law because the defendant’s confluence is minor as the simplest action he had to take is perhaps calling the fire brigade[21]. This case was also applied in the case of Evans[22] and in DPP v Santana-Bermudez[23], where D created a dangerous situation by refusing to tell a police officer that he had a needle in his pocket. Lastly, in the case of Evans, causation has been examined again as it was D’s omitting behavior to act by not pursuing medical help after supplying heroin to V and realised her condition, which resulted to V’s death[24]. Thus, this indicates that omissions liability could possible arise if a dangerous situation caused by D can be predicted by a reasonable person[25].

The two main academic arguments on whether omissions should establish criminal liability or not, are the conventional view supported by professor Williams and the social responsibility view preferred by professor Ashworth, although he had mentioned that these views do not differ significantly[26].

According to the conventional view, an individual should not be obliged to minister the other. Professor Williams refers to a moral discrimination between acts and omissions by saying that we have ‘stronger inhibitions against active wrongdoing than against wrongfully omitting’[27]. This view supports individual’s autonomy and highlights that the role of criminal law is to respect peoples’ free will and not compel them to intrude in a stranger’s life….

Written by Kleopatra Yfanti


[1] Michael Allen, Textbook on Criminal Law (12th edn, Oxford University Press 2013) 29.

[2] R v Gibbins and Proctor (1918) 13 Cr App R 134.

[3] Airedale NHS Trust v Bland [1993] AC 789.

[4] John Child and David Ormerod, Smith and Hogan's Essentials of Criminal Law (1st edn, Oxford University Press 2015) 58.

[5] R v Smith [1979] Crim LR 251.

[6] R v Hood [2004] 1 Cr App R (S) 73.

[7] Geoffrey Mead, ‘Contracting into Crime’: A Theory of Criminal Omissions’ [1991] 11 OJLS, 148.

[8] R v Stone and Dobinson [1977] 2 ALL ER 341 (Lane LJ) 346.

[9] [1839] 1 QB 450.

[10] B. Hogan, ‘Omissions and a Duty Myth’ in P. Smith (ed), Criminal Law: Essays in Honour of J.C. Smith (1987), 85.

[11] R v Pittwood (1902) 19 TLR 37.

[12] Child and Ormerod (n 4) 53.

[13] (n 10).

[14] R v Dytham [1979] QB 722.

[15] Allen (n 3) 27.

[16] (n 10).

[17] Mental Capacity Act 2005, s 2(1).

[18] Road Traffic Act 1998, s 170.

[19] Allen (n 1) 33.

[20] R v Miller [1983] 2 AC 161.

[21] (n 1).

[22] R v Evans [2009] EWCA Crim 650.

[23] [2003] EWHC 2908.

[24] Allen (n 1).

[25] Child and Ormerod (n 4) 56.

[26] Janet Loveless, Criminal Law Text, Cases and Materials (3rd edn, Oxford University Press 2012) 52-53.

[27] Glanville Williams, ‘Criminal omissions: the conventional view’ [1991] LQR 86.

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