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Actus Reus revision documentOmissions liability
Normally there is no criminal liability for a failure to act (or ‘omitting’ to act). However, there are
certain circumstances in which a person is expected to act, and if they do not then they may be
criminally liable. Omissions are the major exception to any requirement of positive action. The courts
and the legislature are reluctant to impose liability for omissions.
Where liability is based on an omission, three ingredients must be satisfied:
I. Recognised offence: the offence charged must be recognised in law as one that is capable of
being committed by an omission.
II. Duty to act: there must be a legally recognised duty requiring the defendant to act in a certain
way.
III. Breach of duty: the defendant’s failure to act must fall below the standard expected in the
performance of the duty.
Offences capable of commission by omission:
Homicide (murder and manslaughter offences): for example Gibbins and Proctor.
Non-fatal offences against the person: for example Santana Bermudez.
Property offences: for example Miller.
Duties to act:
A duty based on the specifics of an offence:
o Where an offence is drafted to include liability for omissions, it is straightforward to identify
the duty to act.
o Statutory examples include: s170 (4) of the Road Traffic Act 1988 which makes failing to
report an accident an offence.
o There are also rare common law examples, as shown by the case of Dytham and the
common law offence of misconduct in public office.
A duty based on a contract:
o Where the defendant has a contractual duty, for example a lifeguard.
o As shown by the case of Pittwood.
A duty based on a familial relationship:
o This is where one has a duty to act for a family member.
o Parent and child: Gibbins and Proctor.
o Married couple: Hood.
A duty based on an assumption of care:
o This is where the defendant voluntarily undertakes a duty to act through caring for the
victim, and the victim becomes dependent on that care.
o Assumption of care duties can be problematic as it can remain unclear as to how much or
how little care the defendant is expected to give to the victim before a duty can arise.
o There are also problems that arise over when this assumed duty of care will end, and because
there is no clarifying case law this issue remains unclear.
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