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.  

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.