v Pittwood (1902) 19 TLR 37 below). Likewise, we do not speak of a general ‘commission by omission’, but, rather, we look towards specific established duties such as those created by relationship or dependency. Fletcher’s classification remains helpful in a given case; however, it is the author’s contention that omissions require no general classification and instead the focus should be on the specific facts of the case at hand.
2.6.3Imposition of a duty
It will be useful at this stage to return to the example given by Stephen J and adapt the facts to observe whether the requirement of A to save B is changed.
Table 2.5Adapting Stephen J’s facts
| Facts: What if … | Is there a legal duty? |
| B was a child? | |
| A was B’s parent or legal guardian? | |
| A was B’s teacher out on a school field trip? | |
| A was a qualified lifeguard at a swimming pool? | |
| A could not swim and was scared of water? |
These are all excellent questions to ask and naturally lead us on to the circumstances when a failure to act may result in criminal liability. Once we have considered the law on omissions, come back to this table and consider whether an obligation exists.
There are several established circumstances where there is a duty to act. These duties to act are often imposed by statute, by a legal contract/voluntary agreement or by a relationship. Quite simply, if there is no such duty, there can be no liability for an omission (though see below at 2.6.4.7 for a discussion of extending the duties).
Before we proceed to the established duties, it is essential that we first make clear that there are several requirements for a failure to act to give rise to criminal liability:
(a) the defendant’s offence must be capable of commission by omission;
(b) the defendant must have a legally recognised duty to act; and
(c) the defendant must have unreasonably failed to act on that duty.
The above list is quite self-explanatory, but it will be useful to delve into the conditions in greater detail.
2.6.3.1Capable of commission
First, there are some crimes that are not capable of being committed by an omission. For example, the offences of robbery and burglary require the use of force or fear of force and entry into a building or part of a building respectively. Naturally, neither of these conditions can be met by a failure to act; thus the offences cannot be committed by omission. In addition, as the name suggests, unlawful act manslaughter cannot be committed by omission (R v Lowe [1973] QB 702). Further, inchoate offences cannot be committed by omission (see Chapter 5). A notorious example often cited is that of R v Ahmad (1986) 52 P & CR 346 which concerned a landlord who was charged with having done ‘acts calculated to interfere with [the victim’s] peace and comfort’ contrary to the Protection from Eviction Act 1977. In that case, the landlord had merely failed to carry out renovations to the victim’s house and this left the property uninhabitable (thus interfering with their peace and comfort). The Court of Appeal considered such a failure to amount to an omission, and not an act, and therefore the defendant could not be liable for an offence requiring him to ‘do acts’.
An example of an offence that can be committed by a failure to act is murder, which has long been held to be able to be committed by an omission (R v Gibbins and Proctor (1918) 13 Cr App R 134). Ultimately, deciding whether an offence is capable of commission by omission is a matter of interpretation and such interpretation must be done on a case-by-case basis.
Table 2.6Offences and omissions
| Offences capable of commission by omission | Offences incapable of commission by omission |
| Murder | Theft and robbery |
| Gross negligence manslaughter | Unlawful act manslaughter |
| Actual bodily harm | Burglary |
| Grievous bodily harm | Rape; assault by penetration; sexual assault |
| Criminal damage | Certain offences of fraud |
There are certain offences for which the law is unsure as to whether an omission can satisfy liability. Take, for example, the offence of common assault. At present, there is no judgment which provides that common assault may only be satisfied by an ‘act’. Indeed, Smith (‘Liability for Omissions in Criminal Law’ (1984) 4 LS 88) argues that the need for an act in such circumstances is ‘unnecessary’. In Chapter 9, we consider the cases of Fagan v Metropolitan Police Commissioner [1969] 1 QB 439 and DPP v Santana-Bermudez [2004] Crim LR 471 which may shed some light on this issue or give rise to further problems.
2.6.3.2Legally recognised duty to act
The second factor is that the defendant must have a legal duty to act. There are two concepts here that need to be considered: what do we mean by ‘legal’ duty, and is there a distinction between a duty ‘to act’ and a duty ‘of care’?
Legal duty
We are concerned with a recognised duty to act on the part of the individual, not merely a moral obligation or duty they may consider that they have. This principle is essential to distinguish those individuals whose failure to act is worthy of criminal repercussions and those who are clearly not deserving of such a criminal label. Whilst most individuals would baulk at the idea of a passer-by ignoring a child drowning in a lake, the criminal law is not concerned with such moral dilemmas. Instead, the law aims to pinpoint liability on those individuals where a specific and identifiable duty can be found, and not simply on an individual who chooses, as is their right, to walk by a drowning child with no relationship to, responsibility for, or association with, that child.
Duty to act, not duty of care
The second point to note is not to confuse a legal duty to ‘act’ with a duty of ‘care’. The former is the requirement to establish omission liability; the latter is a tort law concept which bears use in terms of gross negligence manslaughter. In order to establish liability for gross negligence manslaughter, it must be proved that the defendant owed a duty of care to the victim. In circumstances where the defendant is charged with gross negligence manslaughter, and he does not perform a positive act (ie his liability is omission-based), the prosecution would not only have to establish a
