Can a Failure to Act make an Individual Guilty in the eyes of the Law?

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:

  1. Parent and Child
  2. Husband and Wife
  3. 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.

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For more information on:

  • Voluntary assumption of responsibility
  • A Contractual duty
  • What is a continuing act?
  • If the illegal action is followed by a failure to act this is usually a continuing act and not an omission.