a duty to act. We discuss this in more detail in Chapter 7.
The established duties to act are detailed below at 2.6.4 and are generally concerned with duties that exist as a result of a familiar relationship, assumed responsibility or other association.
2.6.3.3Unreasonable failure to act
The third factor is that the defendant unreasonably failed to act on that duty. Should a defendant do what ordinary people would consider reasonable in the circumstances, he will not be liable for his failure to act. This question essentially asks whether the defendant breached his duty to act and whether that breach was unreasonable in the circumstances.
example
Jill is drowning in a lake. Jack reaches in to try to save her but cannot get to her. Jack is unable to swim himself, so he cannot jump in to save Jill. Instead Jack calls for assistance.
This scenario is a good example of how one should consider the question of reasonableness. In the circumstances where Jack is unable to swim, his failure to act (ie jumping into the water himself) would not be considered so unreasonable that he is liable for an offence. This is so on account that Jack is liable to do more harm than good if he himself cannot swim. In particular, there is a risk that Jack could exacerbate the circumstances for Jill and put himself in danger at the same time. His reasonable refusal is, further, strengthened by his reasonable act of calling for assistance. Had Jack not called for assistance, it is plausible that, overall, he might be considered as having acted unreasonably. Reasonableness is considered by the arbiters of fact.
It is important to emphasise that even if these three elements are satisfied, the prosecution must still prove that the defendant’s omission caused the end result and the defendant possessed the necessary mens rea. In that regard, if the end result would have occurred anyway (ie there was no factual causation), then the defendant cannot be liable (though some other offence may be available).
We shall now consider the established duties to act.
2.6.4The established duties
Below are detailed explanations of the current established duties to act in England and Wales. A failure to act in these circumstances may result in criminal liability. Note here the word ‘may’. The conditions for liability listed above (2.6.3) must be met. No liability will arise where a defendant fails to act in such circumstances, unless that failure to act is considered unreasonable.
2.6.4.1Official duty
Where a person has an official duty to act, for example a member of the emergency services, their omissions can give rise to criminal liability. For example, in R v Dytham [1979] QB 722, the defendant, a uniformed police officer, whilst on duty (though shortly to go off duty), stood aside and watched as a man was beaten to death outside a nightclub. He then left the scene, without calling for assistance or summoning an ambulance. The defendant was charged with and convicted of wilful misconduct in public office. On appeal, Lord Widgery CJ commented:
The allegation made was not of mere non-feasance but of deliberate failure and wilful neglect. This involves an element of culpability which is not restricted to corruption or dishonesty but which must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment.
There is a possibility that Dytham could have faced prosecution for manslaughter if it could have been proven that his inaction contributed to the victim’s death. However, there was no clear evidence in that case which showed that the defendant could have saved the victim, even if he tried. Indeed, Hogan (‘Omissions and the Duty Myth’ in Smith (ed), Criminal Law Essays in Honour of JC Smith (Butterworths, 1987)) argues that it would be inappropriate to punish a defendant like Dytham for the consequences of his omission given that he did not actually cause such consequences. In particular, Hogan states that ‘public officers who neglect without reasonable cause to perform the obligations of their offices may be convicted of an offence but the offence lies in the neglect and the office holder does not become a party to the harm he might have prevented’. Whether Dytham could have been convicted of manslaughter is now a moot point; however, it is worth considering this matter in case a similar situation arises in a problem-based question.
Should a case similar to Dytham arise today, the defendant may also be liable for the new offence of corrupt or improper exercise of police powers contrary to s 26 of the Criminal Justice and Courts Act 2015.
2.6.4.2A duty imposed by statute
There are many statutory provisions (mostly regulatory) which specifically impose duties on particular persons to act in certain ways and which impose criminal sanctions for failing to act. Such liability is often referred to as ‘direct liability’. Road traffic law provides many examples of this, including failing to provide a specimen of breath when required to do so (Road Traffic Act (RTA) 1988, s 7(6)) and failing to provide the name and address of a person involved in a road traffic accident (RTA 1988, s 170). A useful guide when considering duties imposed by statute is to check the wording of the offence.
We shall take two more examples to prove this point. Section 24A of the Theft Act 1968 provides that it is an offence if a person should dishonestly fail to take such steps as are reasonable in the circumstances to secure that any wrongful credit to an account held by him is cancelled. In addition, s 5 of the Domestic Violence, Crimes and Victims Act 2004 creates an offence of failing to protect a child or vulnerable adult from a risk of death or serious physical harm by a person who lives with them or has frequent contact with them (see R v Khan [2009] EWCA Crim 2).
All four examples above refer to a ‘failure’ to act in a certain capacity. Although there are other duties imposed by statute that do not include the word ‘failure’ (for example, s 19 of the Terrorism Act 2000 and s 84 of the Companies Act 2006 use the phrases ‘does not disclose’ and ‘fails to comply’ respectively), the statutes are clear in their wording that there is a duty to act, and an omission will result in criminal liability.
2.6.4.3Contractual obligations
Ordinarily, a contractual obligation exists only between those individuals party to the contract (often referred to as being inter se). In this regard, the law of contract is often distanced from the reach of criminal law. However, it has been understood that a failure to fulfil contractual obligations, that is likely to endanger lives, can lead to criminal liability. The classic example of this can be seen in R v Pittwood (1902) 19 TLR 37. The defendant was employed to operate a level-crossing on a railway but omitted to close the crossing gates when a train was signalled. A cart was crossing when a train struck it and killed one of the carters. The defendant was charged with and convicted of gross negligence manslaughter. As you may have learned in the law of torts, there is often a difficult divide to be made between contractual and tortious breaches. Pittwood was likely in breach of contract by failing to close to gate; however, the victim was not a party to the contract (the contract was between the defendant and his employers), and thus no claim could be founded there. More accurately, the defendant’s liability can be found in the tortious duty of care to the users of the crossing, whom he was paid to protect in his duty and whose lives may be endangered should he fail to perform his duty. For a more recent application of the principle in Pittwood, see R v Yaqoob [2005] EWCA Crim 1269 where a taxi manager was liable for
