The Law of Omission Liability

Critically evaluate whether the law in respect of omissions liability is in need of reform. Given that one may be liable for an offence as serious as murder by omission it is paramount that that liability is clearly defined.

• Introduction to Omission
• Offences capable of being committed by omission
• Introduction to Murder

Introduction 

Traditionally criminal responsibility is based on what the defendant has done and also on state of mind when he did; this approach is summed up by Latin maxim. “Actus non facit reum nisi mens sit rea” Which means “No act can make a person guilty without prohibited state of mind”? For the purpose of analysing a crime, it may be stated that a crime can be divided into two parts called elements.

Firstly Actus Reus which is the outward conduct which must be proved against the accused and secondly Mens rea which is the state of mind the accused must be proved to have to have at the time of the conduct. Actus Reus is not just the commission of an offence but can also be an omission to act or a state of affairs. Thus inevitably, criminal conduct usually takes the form of some act. 

However, where appropriate, liability may be based on an omission to act. “Although a failure to act may have serious consequences as an act and although any difference between acts and omissions is often denied the distinction is deeply embedded in law. The fact is no less inescapable because there is no precise test for distinguishing an act from an omission.

Human conduct may often be described in either positive or negative terms, although one way rather than the other will appear more natural… But there are difficult cases and their very existence leads to the imposition of liability for omissions. 

A man is in his spring cart; the reins are not in his hands, but lying on the horse’s back. While the horse trots down a hill a young child runs across the road in front of the cart is knocked down and killed.

Had the man held the reins he could have pulled the horse up. Did he kill the child by driving the cart recklessly or by recklessly failing to drive the cart?” A question may be raised as to what is ‘an omission?’ it may be described as Defendant’s conduct as ‘not doing’. According to Ashworth omission is only apply in failing to do things which there is some kind of duty to do, or at least things which it is reasonable to expect a person to do (on the basis of some relationship or role).

Therefore generally there is no liability for an omission to act because it would be impractical to impose such a liability unless the defendant was under a legal duty to take positive action. A moral duty will not be sufficient.

For example, suppose that Defendant comes out of a club late at night and sees that, across the road, Victim is being kicked and punched by a number of men. If Defendant does not attempt to intervene or, say, summon the police, we will have little difficulty in describing his conduct as not helping, not assisting, omitting to help (of course, unless D is a police officer, it is unlikely that he could be guilty of any offence for failing to help). There is no general liability for “mere” omissions. Unless under a duty to act, D will not be liable merely because he fails to go to the aid of a person whom he knows to be drowning in a pool. Equally, as indicated earlier, apart from possible obligations to intervene to prevent a breach of the peace, Defendant (if not a police officer) will not commit a crime merely because he stands by and watches a crime being committed.

Before a crime can be committed by an omission, certain requirements must be satisfied. Adhering to the “social responsibility view”. 

Ashworth stated that it may be fair to place citizens under obligations to render assistance to other individuals on certain situations’ although they are not committed to the idea that there should at all times always be a duty to help, … it lead them to attack the argument that there is general moral distinction between failing to perform an act with foreseen bad consequences and performing an act with identical bad consequences. Thus it may be stated that a moral duty will not be sufficient. Thus it may be stated “a crime can be committed by omission, but there can be no omission in law in the absence of a duty to act.

The reason is obvious. If there is an act someone acts but if there is an omission everyone (in a sense) omits. We omit to do everything in the world that is not done. Only those of us omit in law who are under a duty to act. 

As result there are circumstances recognized by the law which creates a duty to act and failing to do so or an omission may give rise to criminal liability. For example If Defendant were to see a child (P) were drowning in a pool Defendant would be under no legal duty to prevent this unless the child was his son or if Defendant was pool attendant employed to ensure the safety of swimmers.

There are several exceptions to the general rule, where the defendant will be under a positive duty to act. I.e.

there can be a liability for omission if there is a duty to act provided that; the omission is substantial and operative cause (Causation). According to Ashworth “the criminal law should be reluctant to impose liability for omission except in clear and serious cases… the distinctive argument is that our duties towards other individuals should be confined to duties towards those for whom we have voluntarily undertaken some responsibility… we should owe positive duties (e.g. to render assistance, to support) only to a circumscribed group of people with whom there exists a special relationship”.

Before further proceeding with duty to act it is important to state the offences which have been interpreted by the courts as capable of being committed by omission which include Murder; Gibbins & Proctor, gross negligence manslaughter; Pittwood[7] and criminal damage; Miller are included. Unlawful act manslaughter is excluded; Lowe but there are doubts about assault/battery (contrast Fagan v Metropolitan Police Commissioner[10] with DPP v K, and see also, DPP v Santana-Bermudez and the general approach in Evans, and more serious offences against the person, such as unlawful and malicious wounding or infliction of grievous bodily harm. 

Similarly, the definition of an attempt in the Criminal Attempts Act 1981 (an ‘act’ more than merely preparatory) may make it impossible to commit an attempt by an omission, whilst in the Fraud Act 2006, fraud by false representation (s2) requires D to make a representation and the offence of dishonestly obtaining services under s10 requires proof of a dishonest act.

At this point it is important state as stated above that the courts have long accepted without debate that murder and manslaughter are capable of commission by omission. Since the given question emphasize the offence of murder in relation to omission it is significant to state brief introduction to the offence of murder. Murder is unlawfully killing of human being with malice aforethought. 

For a person to be liable under murder actus reus of the offence require Unlawfully killing a human being. Further analyzing the definition Unlawful means killing is usually unlawful (Killing in self defense, killing in a course of lawful operation Re A is lawful.) Killing, the conduct of the defendant must cause the death. And the conduct should be a cause not the cause of death.

A cause is something, which has made a significant contribution to the victim’s death. Traditionally it is said that a cause must be both operative and substantial. Death in the context means brain stem death; Airedale NHS trust v Bland[15] – I.e. terminating life support to a patient who is brain dead does not kill him, because he is already dead.

And the most obvious being that it should be a human being, and a person or a human being includes any child born alive. 

The mens rea of the offence requires an intention to kill or intention to do grievous bodily harm. Intention can be direct or oblique, if defendant foresaw death or grievous bodily harm as a virtual certainty a jury may find it easy to infer that he intended death or GBH; Nedrick. At this point it may be stated that the first requirement if liability is to be imposed for an omission is that, in principle, the crime can be committed by an omission and second requirement is Defendant was under a duty to act third requirement is that the defendant’s omission must be a breach of his duty and finally Defendant’s breach of duty by the omission must cause the prohibited consequence.

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