Halsbury's Laws any good to you?
- Omissions.
Save in exceptional circumstances the criminal law imposes no obligation on persons to act so as to prevent the occurrence of harm or wrongdoing. There is no general duty to prevent the commission of crime1; nor does a person commit a crime or become a party to it solely because he might reasonably have prevented its commission. Omission to act in a particular way will give rise to criminal liability only where a duty so to act arises at common law or is imposed by statute3. Such a duty is exceptional at common law and the criminal law does not ordinarily require a person to be his brother's keeper4. Nevertheless, if a person assumes that role, he may incur criminal liability not only for any subsequent acts but also for omissions5. In such circumstances there is no need to prove that the defendant had been obliged by law to undertake the particular duty, or that he was bound by contract to care for the other6; it is sufficient that he voluntarily undertook the care of another in circumstances in which that other was unable to fend for himself.
Where the defendant inadvertently creates a situation endangering a person or property (so that he lacks the necessary mens rea at that time) he is under a duty to take such steps as lie within his power to try to counteract the danger before it materialises; if he becomes aware of the train of events caused by his act before the resulting harm is complete (and has the necessary mens rea in consequence) but fails to take those steps he can be convicted of the crime which the resulting consequence entails8.
It is possible for the person owed the duty to release from it the person owing the duty, either before or at the time that the duty would otherwise require action, even if it is contrary to his best interests, provided that the subject is an adult capable of making a rational decision9.
A crime may be so defined that it is impossible or difficult to conceive of circumstances in which the actus reus could be constituted by an omission10; but it would seem that, in conjunction with the appropriate mens rea, most offences against the person and most offences against property, including theft11 and dishonest handling12, may be so constituted.
1 A constable has a duty to prevent crime: see R v Dytham [1979] QB 722, [1979] 3 All ER 641, CA (failure by uniformed police officer to intervene when he saw a man being kicked to death; it was held that he could be convicted of the common law offence of misconduct in public office (see para 536 post)); and it is an offence for a person to refuse without reasonable excuse to assist in quelling a breach of the peace when called upon by a constable (R v Brown (1841) Car & M 314; and see para 738 post).
2 Cf Rice v Connolly [1966] 2 QB 414, [1966] 2 All ER 649, DC (person refusing to answer questions is not 'wilfully obstructing' a police officer even though this may hamper inquiries). See also Swallow v LCC [1916] 1 KB 224, DC.
3 Where pursuant to an Act of Parliament an order is made requiring a corporation to effect certain works, an indictment lies for failure to comply: R v Birmingham and Gloucester Rly Co (1842) 3 QB 223.
4 At common law a parent has a duty to act for the welfare of his child and, if harm is caused to the child by his failure to act, he may be criminally liable for the resulting harm: R v Bubb, R v Hook (1850) 4 Cox CC 455; R v Gibbins, R v Proctor (1918) 13 Cr App Rep 134, CCA. Cf R v Knights (1860) 2 F & F 46.
5 R v Smith (1826) 2 C & P 449. See also R v Stone, R v Dobinson [1977] QB 354, 64 Cr App Rep 186, CA (the occupier of a house and the woman with whom he was living were both convicted of manslaughter for failing to provide nursing care for the occupier's sister who lodged with them).
6 See eg R v Pittwood (1902) 19 TLR 37 (a railway level-crossing keeper who forgot to close the gates was convicted of manslaughter). As to the extent of a medical practitioner's duty to maintain life-prolonging treatment see medical professions vol 30(1) (Reissue) para 202.
7 'In this case, as in most cases, the legal duty can be nothing else than the taking upon oneself the performance of a moral obligation': R v Instan (1893) as reported in 17 Cox CC 602 at 603, CCR, per Lord Coleridge. Thus a woman who assumes responsibility for the care of another's child may be liable in respect of a failure to provide food (R v Gibbins, R v Proctor (1918) 13 Cr App Rep 134, CCA) or to provide medical aid (R v Lee, R v Parkes (1917) 13 Cr App Rep 39, CCA). See also R v Instan [1893] 1 QB 450, CCR; the Children and Young Persons Act 1933 s 1 (as amended); para 143 post; and children and young persons vol 5(3) (2008 Reissue) para 611.
8 See R v Miller [1983] 2 AC 161, 77 Cr App Rep 17, HL (accidentally setting fire to mattress and, with knowledge of the fire, taking no steps to put it out; guilty of arson).
9 Re T (Adult: Refusal of Treatment) [1993] Fam 95, [1992] 4 All ER 649, CA; Re C (Adult: Refusal of Treatment) [1994] 1 All ER 819, [1994] 1 WLR 290; Airedale NHS Trust v Bland [1993] AC 789 at 857, [1993] 1 All ER 821 at 860, HL, per Lord Keith of Kinkel, at 864 and 866 per Lord Goff of Chieveley, at 883 and 882 per Lord Browne-Wilkinson, and at 891?892 and 889 per Lord Mustill; St George's Healthcare NHS Trust v S [1999] Fam 26, [1998] 3 All ER 673, CA; and medical professions vol 30(1) (Reissue) paras 199, 202. As to advance decisions to refuse treatment see the Mental Capacity Act 2005 ss 24?26; and mental health vol 30(2) (Reissue) paras 653?655.
10 Eg offences under the Forgery and Counterfeiting Act 1981 Pt I (ss 1?13) (as amended): see para 346 et seq post.
11 An appropriation includes 'keeping . . . [property] as owner': see the Theft Act 1968 s 3(1); and para 284 post.
12 See R v Pitchley (1973) 57 Cr App Rep 30, CA; and para 302 post.