1. ‘Law should encourage citizens in their civil duty to do ‘the right thing’ in a moral
sense and not to turn a blind eye or fail to help someone who is in need.’
Consider to what extent the criminal law relating to omissions (failures to act)
reflects this view’.
Generally the common law was concerned to prohibit particular results from
occurring and it punished an accused for causing the prohibited result by his
POSTIVE acts. This means that the normal rule in the English legal system is that an
omission (a failure to act) cannot make a person guilty of an offence. This means that
a stranger could quite lawfully do nothing to prevent a child from drowning after
falling into a pond or dying after falling over a cliff. This general rule does not
encourage citizens to do ‘the right thing’. The question must be asked, how can it be
acceptable for someone to legitimately watch a child die without committing an
offence? Surely it would encourage citizens to demand that they at least seek
assistance. On the other hand this would strike at the heart of the individual’s
freedom to choose how to conduct themselves. Furthermore, how would the system
cope if every person who failed to act was prosecuted?
Other countries do have a law which is known as a ‘Good Samaritan’ law. It makes a
person responsible for helping other people in an ‘emergency situation’ despite
being complete strangers. There are however problems with this law. What if for
example a ‘rogue’ pretends to be seriously injured to lure a stranger to his assistance
so that they can then rob them? It is also possible that an untrained person
intervening may cause more harm than good. More questions can be asked – what if
several people witness the incident, must they all help? What if the rescuers put
themselves at risk? It seems that despite the general/normal rule not encouraging
the citizen to do the right thing, there are too many uncertainties surrounding a
good Samaritan law to impose a duty on all people no matter their relationship to
the victim.
Gradually, the courts have come to recognise limited liability for omissions where a
duty to act can be applied. In these duty situations a person may be liable for failing
to act, and this failure to act will be enough to constitute the actus reus of an
offence.
An omission is only sufficient for the actus reus of the offence where there is a duty
to act. There are six ways in which such a duty can exist. A statutory duty, a
contractual duty, a duty because of a relationship, a duty arising from the
assumption of care for another, a duty through one’s official position and a duty
which arises because the defendant has created a dangerous situation.
This list seems not to be exhaustive however. In Khan and Khan the Court of Appeal
stated obiter that duty situations could be extended to other areas. In this case, it
was thought that there could be a duty to summon medical assistance in certain
circumstances (in this case where a drug dealer supplied heroin to a new user who
collapsed), so that the defendant could be liable for failing to do so. It could be

2. argued that this makes the law too uncertain. In what new situations will it be
decided that a failure to act can be sufficient for the actus reus of an offence?
STATUTORY DUTY
An act of Parliament can create liability for an omission. Many of these offences are
connected with vehicles and driving. They are also strictly liable in nature which
means that the prosecution do not have to prove mens rea. The justification for
taking away freedom to choose in this sense is that it is for the greater good of the
public. If for example a driver fails to get insurance to drive, those injured by them
will have difficulty getting compensation. Imposing liability for failing to act here
does encourage citizens to ‘do the right thing’ and so it can be said that the law
relating to omissions reflects the statement at hand. The Domestic Violence, Crime
and Victims Act 2004 holds all members of the household liable for failing to protect
a child. This makes it far easier for a prosecution to succeed without family members
shifting responsibility and encourages them to report any abuse, in other words, to
do the right thing.
CONTRACTUAL DUTY
Similarly, a contractual duty encourages those who act under a contract to ‘do the
right thing’. In Pitwood a railway crossing keeper omitted to shut the gates, with the
result that the person crossing the line was killed. The keeper was guilty of
manslaughter. Such a case would extend to a lifeguard who left their post
unattended. Such liability will encourage workers to work closely to the terms of
their contract and to do a job well in order to avoid prosecution.
A DUTY BECAUSE OF RELATIONSHIP
This is usually a parent-child relationship, but can work the other way round where a
grown up child is caring for their elderly parent. A case example is Gibbens and
Proctor where a father of a seven year old girl and his partner deliberately failed to
feed her and was convicted of murder. The father had a duty to feed her because he
was the parent and the failure to do so was enough for the actus reus of murder.
A DUTY WHICH HAS BEEN UNDERTAKEN VOLUNTARILY
In the above case of Gibbens and Proctor the partner of the father was held liable as
she had voluntarily assumed a duty to look after the girl. Similarly in Stone and
Dobinson, an elderly aunt went to stay with the defendants. She was bedridden,
failed to eat, and was incapable of caring for herself. On at least one occasion
Dobinson helped to wash her and prepared her food. She died from malnutrition and
they were found guilty of manslaughter. Stone has a relationship duty and Dobinson
had a duty which had been undertaken voluntarily. It may seem very unfair to
impose a duty in these circumstances as an adult is normally held to be responsible
for their own life. In fact, a mentally capable adult can refuse medical treatment.
However, the law is encouraging individuals who take people into their care to ‘do
the right thing’ even if this is just summoning help. If the adult is vulnerable, the
argument for imposing a duty is that the person assuming the duty is best placed to
ensure that potential harm is avoided.

3. A DUTY THROUGH ONE’S OFFICIAL POSITION
This is very rare, but encourages those in official positions to do the right thing. In
Dytham, a police officer who saw a man being thrown out of a nightclub and kicked
to death took no steps to intervene or summon help. He was convicted of
misconduct in a public office.
A DUTY WHICH ARISES BECAUSE D CREATES A DANGEROUS SITUATION
This duty encourages individuals who have created a dangerous situation to do what
they can to limit consequential damage. In Miller D fell asleep whilst smoking and
when he awakened to find his mattress on fire he didn’t call for help but went into
another room and went back to sleep. He was convicted of arson. He should have,
according to the House of Lords, taken reasonable steps (without putting himself at
risk) to deal with the fire.
In Santa Bermudez a defendant who denied having sharp objects on him was held
liable for assault occasioning actual bodily harm against a police officer who
searched him. His failure to warn her was enough for the actus reus of the offence.
INVOLUNTARY MANSLAUGHTER AND OMISSIONS
Gross negligent manslaughter can be committed by doctors who fail in their duty
towards patients in such a gross way that it is considered a crime. This offence can
be committed by an omission (a failure to act) for example in Adomako where a
anaesthetist failed to notice a tube supplying oxygen to the brain becoming
disconnected. The patient suffered brain damage and died six months later. He was
convicted of manslaughter. Despite being the case, a decision to stop treating a
patient (omitting to feed), if in the best interests of the patient, will not be an
omission that constitutes actus reus for manslaughter. This was decided in Airedale
NHS Trust v Bland. Here the law seems contradictory. Either a positive act or an
omission can form actus reus however a person who actively assists a person to
commit suicide can be guilty of murder, whereas a person who omits to assist a
person in living cannot be guilty. This makes cases such as the Diane Pretty assisted
suicide case hard to accept. The emphasis is on ‘the best interests of the patient’ and
goes back to the question at hand – the law is encouraging individuals to ‘do the
right thing’.
In conclusion, despite the normal rule that a person cannot be held liable for failing
to act, the duty situations certainly encourage individuals to do the right thing, and
not turn a blind eye. The law is therefore playing a role in almost ‘enforcing’ a moral
code of conduct. There are however several arguments suggesting that the law may
develop too far, extending duties beyond those currently recognised.