OMISSIONS ANSWER

‘English law does not normally impose liability for failure to act despite the fact that there may be
compelling moral justifications for doing so.’ Discuss this statement and consider what, if any, reforms
would be desirable.

Under criminal law, two elements must be proved by the prosecution before a defendant can be
deemed guilty and culpable- the actus reus and the mens rea. The actus reus is the conduct, state of
affairs or the physical element of the crime that is prohibited by the law. In normal circumstances, the
actus reus requires a positive act on the part of the defendant and a failure to act such as the failure to
act to save a life does not generally lead to a finding of guilt. This is justified to a certain extent because
in order to retain individual autonomy and freedom of choice, a person must not be compelled to act by
compromising on their own personal interests.

COMMENT/LINK/EVALUATION: However, there are a number of situations where a duty to act is implied
and hence the accused can be held criminally liable for their inaction or omission. These exceptions are
equally justified if one is to prioritize the interests of the wider community over individual interest.

It is a general principle that the penal law must content itself with keeping men from doing positive
harm, and must leave to public opinion, and to the teachers of morality and religion the task of
encouraging people to do moral good in helping others. The State provides professionals such as the
police, fire brigade and ambulance to deal with emergency situations, hence there is no general duty
upon a citizen to be a ‘Good Samaritan’. Yet, there are special circumstances where a duty to act is
justified. In situations which involve a breach of a statutory duty, the accused can be guilty of an offence
for a failure to act. For example under s 6 of the Road traffic 1988 a failure to cooperate with the police
in taking a breathalyser test is an offence which is capable of being committed through omission and
carries with it a punishment similar to driving under the influence of alcohol. This is indeed both legally
and morally justified since an offender who is in flat defiance of a statute is indeed blameworthy. In
addition, there are strong public policy reasons-the need to ensure public safety for adopting an
absolute liability for road traffic and environmental offences. Moreover, in R v Dytham, it has been held
that every police officer commits a misdemeanor who wilfully neglects to perform any duty which he is
bound to do either by common law or statute.

COMMENT/LINK/EVALUATE: In such situations, similar moral considerations apply because an official

Other instances where a duty to act can be implied is under a contract. A person who is paid for a
service must adhere to their contractual obligations especially if their job involves some interaction with
public. In R v Pittwood(1902), the accused was convicted of gross negligence manslaughter following
the death of a road user who was hit by a train on a level crossing. When the collision happened, the
accused was away from his post having left the gate open. His actions were regarded grossly negligent
as he was paid to keep the gate shut and protect the public. In a similar vein, parents are under a duty
to provide for their children. A failure to provide a child with enough nourishment is culpable behavior
which is morally blameworthy( R v Gibbons and Procter). In addition, there are some cases such as R v
Stones and Dobinson where a duty to act is implied from the voluntarily assumption of responsibility. In
this case, the defendant was described to be of low intelligence, yet the minimum care provided to the
 victim lead to a conviction of manslaughter when the victim died following a failure to get the victim
adequate medical attention.

COMMENT/LINK/EVALUATE: Given that one of the defendants was blind, the outcome of the case is
undoubtedly harsh. Although, the imposition of a duty to act is by and large morally justified, there are
instances such as in R v Stone where criminalizing omissions runs counter to the legality principle which
holds that people should only be punished for offending a legal rule and not because their conduct is
immoral or injurious.

Lastly, a person who has created a dangerous situation may be criminally responsible if h/she fails to
take reasonable steps to counteract the danger he has caused ( R v Miller)-

complete this paragraph with evaluation in the end

Academics such as Ashworth propose a reform in this area whereby omissions liability should be
extended to include duties to report serious crime and to effect easy rescue. No serious loss of freedom
would be involved in such instances since the duty would only arise in cases of life-threatening injury
and the scope of the duty could easily be restricted to taking action which involved no unreasonable
risk, cost or inconvenience. However, these proposals are not favoured by many since such extended
duties would make it difficult to maintain consistency in defining what is reasonable to expect a
defendant to do. In addition, the imposition of duties to act based upon well-meaning communitarian
ideals would compromise the rational pursuit of self- interest in a community of like- minded individuals.
Thus, such a far reaching reform which prioritizes moral considerations over legal considerations is not
recommended.

It is evident from the above discussion that the criminal law seeks to uphold multiple values in a liberal
society. The general rule against the imposition of liability for an omission is to protect an individual
from coercion and preserve individual autonomy. Yet, the exceptions outlined above recognize that a
liberal society has other values such as the sanctity of life and good community which also need to be
valued. An incremental development of new duty situations could help the law reflect the moral
foundations of good citizenship whilst also balancing the need to value self- interest and autonomy.