Distinction between Acts and Omissions
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
therefore amount to a failure to act, an omission.
The General Rule: No criminal liability for failing to act
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 in order
to prevent outcomes that occur as a result of someone else
behaviour.
The Exceptions: Situations in which there may be Criminal
Liability for a Failure to Act in Certain Situations
- Where the Law expressly states that a failure to act will
result in criminal liability, this will be an exception to the
general rule that there is no liability for a failure to act.
For example;
-
S6 (4) Road Traffic Act 1988:
‘A person, who, without reasonable excuse, fails to provide a
specimen of breath when required to
do so in pursuance of this section is guilty of an offence’.
-
Where there is a special relationship between the victim and
the person who failed to act there will be criminal liability 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.
Voluntary assumption of responsibility
- Where a person voluntarily assumes responsibility for
another person’s welfare they will be under a duty to care for
them.
- 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. Or the responsibility
may be implied, where a person has often offered help or
assistance to another and therefore there may be an
understanding of responsibility
A Contractual duty
- 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 the case of Pittwood 1902, a gatekeeper who
was employed to close the gate as part of his job description
failed to do so resulting in a 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.
What is a continuing act?
- The courts have held that there are some cases which appear
to be straight forward cases involving omissions have actually
been a cases of a continuing act.
- A continuing act is where the defendant actions are criminal
and does nothing to rectify the action, which is where the
failure to act comes into play, but this failure to act is
actually a continuation from the original illegal action.
- For example, in the case of Fagan 1969, A defendant
accidentally dove onto a police constables foot, he then refused
to move the car off the policeman’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.
