How far does criminal liability for an omission depend upon the deliberate failure of a defendant to perform a duty?


CRIMINAL LAW ASSIGNMENT

‘How far does criminal liability for an omission depend upon the deliberate failure of a defendant to perform a duty?’

INTRODUCTION

Although the fundamental purpose of the criminal law is to prohibit certain acts and to punish those responsible, there are a number of situations which can arise when a failure to act will result in criminal liability. This liability arises when an individual is under a duty to act, and fails to do so.
The common law rightly limits criminal liability for omissions to clearly defined circumstances in which there is a pre-existing duty.

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In R v Lowe, Phillimore L.J. said:
We think there is a clear distinction between an act of omission and an act of commission likely to cause harm.
All lawyers and students alike are aware of the classic example of the passer-by who sees a child drowning in a shallow pool but refuses to rescue the child. The passer-by commits no criminal offence.
However, in 1983 the House of Lords in R v Miller extended liability for omissions to a range of situations which are vague and difficult to predict.

The following essay will discuss to what extent, if any, criminal liability depends upon an individual deliberately failing to act.
Where the duty is imposed by statute
A myriad of statutory duties exist which require individuals to act in a given way, with failure to do so attracting criminal punishment.

A relatively recent example of an Act of Parliament, which punishes individuals for failing to act, is the Domestic Violence, Crime and Victims Act 2004 (hereafter DVCA 2004). Under section 5 of the DVCA 2004, an individual over the age of 16 is guilty of an offence if a child or vulnerable adult, who was a member of the same household as them, dies, and that individual had frequent contact with the deceased and was aware or ought to have been aware of a significant risk of serious physical harm (act) to the deceased, and failed to take reasonable steps to protect the deceased from that risk. Section 5(6) defines an act as a course of conduct or an omission.
It was clearly Parliament’s intention to impose liability if an individual failed to act, with the imposition of an objective standard upon what risk they ought to have been aware of, and the act which caused the death occurred in circumstances of the kind which they ought to have foreseen (emphasis added). The DVCA 2004 was passed to circumvent the problems experienced by the prosecution when a child is killed in the family home and both parents deny causing the death.
Consequently, there is no requirement of an intention to ‘deliberately’ ignore the plight of the child or vulnerable adult for liability to ensue. Simple negligence or mere indifference will be captured by the objective standard imposed by the DVCA 2004. This is plainly a far-reaching extension of s.1(1) Children and Young Persons Act 1933 (hereafter CYPA 1933), which forbids wilful neglect of a child.

In contrast to the wording of DVCA 2004, an offence contrary to s.1(1) CYPA 1933, requires ‘wilful neglect’. Similarly, under s. 127 Mental Health Act 1983 (hereafter MHA 1983), the offence requires ‘wilful neglect’.
In the case of R v Sheppard, Lord Diplock imported the requirement of basic mens rea into the offence under s.1(1) CYPA 1933. Although intentional neglect will naturally be caught by s.1(1) CYPA 1933 and s. 127 MHA 1983, subjective recklessness will also suffice. Again, there is no necessary requirement that only intention will suffice for liability to arise. Liability for manslaughter for the wilful neglect of a child will not necessarily follow simply because the child dies. Proof of an intention to harm the child by such neglect is required, with an intention to starve a child sufficing for liability for murder.
Similar to s. 6 DVCA 2004, s. 19 Terrorism Act 2000, holds that where a person believes or suspects that another person has committed an offence under any of sections 15 to 18, and bases his belief or suspicion on information which comes to his attention in the course of a trade, profession, business or employment, that person commits an offence if he does not disclose his belief or suspicion, and the information on which it is based, to a constable as soon as is reasonably practicable. Again, the requirement of ‘reasonably practicable’ denotes an objective standard.
Where the duty is assumed under contract

In R v Dytham, the defendant was an on duty policeman whom passed a nightclub at 1am. A man was expelled from the club and then violently assaulted by a bouncer who kicked him to death. The defendant made no effort to intervene and simply drove away when the mêlée was over. He was charged with the common law offence of misconduct in a public office, which was his failure to carry out his duty. A policeman’s duty to act might be seen as imposed at common law generally, by statute, but also by his contract of employment.
R v Pittwood is another example of a duty assumed under a contract of employment. The defendant was a gatekeeper whose duties included keeping the gate shut whenever a train was passing through. He opened the gate to let a car pass, but then forgot to shut it. He then went off for lunch. Consequently, a cart crossing the line was struck by a train and a person killed. Pitwood claimed that he was under no legal duty to the deceased, but Wright J held that the duty arose under his contract of employment. He also stated that,

There might be cases of misfeasance and non-feasance. Here it was quite clear that there was evidence of misfeasance....
Whether Pitwood’s conduct amounted to misfeasance or non-feasance, there was no requirement that liability could only arise as a result of him deliberately neglecting his duties.
Where the duty arises from a special relationship
Furthermore, the common law imposes a duty to act where there is a family relationship, especially between parents and children as well as spouses. Parents have a duty arising out of their special relationship with their offspring not to neglect them so as to cause them harm. However, there is no duty owed by a parent to an 18-year old, unless the care is voluntarily undertaken.

As for spouses, in R v Smith, the defendant’s wife was averse to hospitals. She refused to go into hospital for the birth of her third child and the baby was still born. She fell ill and refused to allow the defendant to call a doctor. A doctor was called but she died of fever, there being evidence that she may have been saved if the medical help had arrived a day or so earlier. There is a statutory duty owed by spouses to each other under the National Assistance Act 1948, ss. 48, 51. Separated spouses do not owe each other a duty unless it is voluntarily undertaken.

Where the duty is assumed by conduct

Another duty, which arises, is when an individual voluntarily assumes responsibility for another, who, for whatever reason, is unable to care for himself. This duty may arise via an express undertaking to care for another, or it can be implied by the Court.
In the case of Stone and Dobinson, S’s sister F came to live with him and his mistress D. She was suffering from anorexia nervosa. Whilst living with S and D her condition rapidly deteriorated until she was confined to bed. They fed her as little as she required and no one was notified of her condition. S and D were convicted of manslaughter and on appeal their convictions were upheld. The minimal attention they had given F convinced the court they had assumed a duty to care for her and they had been grossly negligent in that duty. There was no necessary requirement of an intention to ‘deliberately’ deny the deceased food and medical assistance for liability to follow.

Where the duty is to avert a danger of one’s own making

As previously stated, the law in general limits liability for omissions to situations in which a duty pre-exists.
However, if an individual creates a dangerous situation without any intention, and then subsequently fails to remedy the danger they have caused, and it is in their power to do so, this omission will render them criminally liable. Authority for this principle can be found in the House of Lords decision of R v Miller.
Miller was a vagrant who had been occupying an empty house. One evening he was lying on a mattress smoking a cigarette. He then fell asleep and the mattress caught on fire. Miller was awoken by the flames, but rather than attempt to extinguish the fire, he simply moved into another room and went back to sleep. He appealed against his conviction on the basis that he had not committed any overt act. His appeal was dismissed.
At a first glance, it is evident that the mens rea and actus reus for the offence did not initially coincide, as at the start of the fire there was no mens rea. The Courts have adopted two approaches to this unique situation. The first is to regard this sequence of events as a continuing course of conduct and not as an omission to act.
In R v Church the defendant attacked a woman rendering her unconscious. Believing he had killed her, he threw what he believed to be her corpse into a river. She subsequently died of drowning. The Court saw this as a series of events, culminating in the victim's death. It is a continuing course of conduct in which it is seen as artificial to separate out particular moments of time and insist upon precise coincidence.
Alternatively, as in Miller, instead of looking at these situations via the notion of a continuing act, the behaviour can be viewed as a failure to act and then the decision as to which circumstances are to be punished for such failures is ultimately for the Court to decide.
After Lord Diplock, in Miller, had referred to these competing theories, the House of Lords arguably imposed this duty to reflect what right thinking members of society would expect of an individual who has caused a dangerous situation with no intention, but who has the power to remedy the danger he has caused to others or property.
Conclusion
As has been discussed, although the main aim of criminal law is to sanction certain acts and to punish the responsible, there are situations when a failure to act will be deemed as serious enough to warrant criminal liability. For Parliament to legislate against such omissions is to clearly highlight the level of culpability it believes should attach to these omissions.
If only an intention to deliberately neglect one’s duty were required for criminal liability to ensue, then the relevant Acts of Parliament would be impotent, with successful prosecutions few and far between.
Furthermore, for the Courts to extend situations giving rise to new duties is reflective of the liability they believe should follow neglecting such duties.
R v Miller clearly extended situations that give rise to a duty, and the Court of Appeal in R v Singh (Gurpal) affirmed the trial judges decision that whether a situation gives rise to a duty will be a question of law for the judge to determine.
However these situations are very limited, as can be seen in R v Khan where the Court of Appeal refused to hold that the appellant who had supplied a 15-year old with heroin owed her a duty of care when she slipped into a coma in his home.

BIBLIOGRAPHY
1. Allen. M. J. (2005) Textbook on Criminal Law, 8th Ed, OUP, Oxford.
2. Ashworth. A, ‘The Scope of Criminal Liability for Omissions’ (1989) Law Quarterly Review 105
3. Blackstone’s Criminal Practice (2005) 15th Ed, OUP, Oxford.
4. C.M.V. Clarkson (2005) Understanding Criminal Law, 4th Ed, Sweet & Maxwell, London.
5. Herring. J (2004) Text, Cases, and Materials, OUP, Oxford.
6. J. Dressler, ‘Some Brief Thoughts (Mostly Negative) About Bad Samaritan Laws’ [2000] Santa Clara Law Review 971.
7. Molan. M. (2004) Criminal Law, 150 Leading Cases, Old Bailey Press, London.

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