Can a failure to act make someone guilty in the eyes of the law?

An action is the physical participation in any given situation. It is obvious to most people that if they perform an illegal action they will be punished. An illegal action would include physical violence, theft, robbery, rape, murder or manslaughter. These are the types of offences that would be automatically punishable under the law of England and Wales.

The confusion arises where someone fails to act in a particular situation. These failures to act are called omissions.

An example to draw the distinction is as follows:

If a person in hospital is being kept alive by a drip feed, the physical withdrawal of this feed would amount to an illegal action; the failure to replace an empty drip feed would amount to a failure to act, an omission.

Generally there is no criminal liability for failing to act in a certain situation. If there was to be wholesale liability for omission we would be forced to alter our actions and plans to prevent outcomes that occur as a result of someone else’s behaviour.

In certain circumstances, the law expressly states that a failure to act will result in criminal liability. This constitutes an exception to the general rule that there is no liability for a failure to act.

For example, under s 6 of the Road Traffic Act 1988, it is a criminal offence for a person, without reasonable excuse, to fail to provide a specimen of breath when required to do so.

Where there is a special relationship between the victim and the person who failed to act, criminal liability can arise as a result of the omission. Examples of the kinds of relationships that presume a voluntary presumption of responsibility to care for or protect the other person includes:

• parent and child;
• husband and wife;
• doctor and patient.

A doctor will only be criminally liable for an omission if the omission constituted a breach of duty, which is to act in the patient’s best interests.

All these types of relationship impose some kind of duty on each other, and therefore a failure to act and prevent an action which leads to one of the parties becoming a victim of some sort of crime will attach a criminal liability.

Where a person voluntarily assumes responsibility for another person’s welfare they will be under a duty to care for them (R v Stone & Dobinson (1977)).

The assumption of responsibility may be expressed; where a person declares outright that they agree to take care of a person who may be vulnerable and in need. The responsibility may also be implied, where a person has often offered help or assistance to another and therefore there may be an understanding of responsibility.

Where a person is under a contractual duty to care for another person they will be liable under criminal law to act on this duty.

For example, in R v Pittwood (1902), a gatekeeper who was employed to close the gate as part of his job description failed to do so, resulting in an accident where a train hit a cart. His omission to close the gate resulted in a breach of his contractual duty to act and therefore he was criminally liable for his failure to act.

The courts have held that there are some cases which appear to be straightforward situations involving omissions, but have actually been cases of a continuing act.

A continuing act is where the defendant’s actions are criminal and they do nothing to rectify the action; this failure to act is actually a continuation from the original illegal action.

For example, in Fagan v MPC (1969), a defendant accidentally drove onto a police constable’s foot; he then refused to move the car off the officer’s foot. The driving onto the foot was the action and the failing to remove the car – which could be seen as a failure to act – was actually a continuation from the original act of driving the car onto the constable’s foot.

If the illegal action is followed by a failure to act, this is usually a continuing act and not an omission and criminal responsibility will arise.

In R v Dytham (1979), a police officer did nothing while a bouncer kicked a man to death. His conviction for misconduct in a public office was upheld after the court ruled that such an offence can be committed by omission; specific misconduct was not required.