lOMoARcPSD|109 710 91
OMISSIONS
It is a general rule in English Criminal Law that a person is not liable for an omission to
act unless the law imposes upon him a duty to act. A moral duty to act will not suffice.
A duty to act can arise by statute or common law. An omission to act without a
corresponding duty will not create an offence R vs. Wm Smith.
There must be a legal duty to
act. There must be a breach of
that duty.
The breach must have caused the offence to
occur. D must have the requisite mens rea.
DUTY ARISING FROM STATUTE
Statutes have created expressed offences of omissions in certain instances where the
defendanthas been under a statutory duty to take positive action e.g.
a) The Children And Young Person Act 1933 S 1 (1) creates the offence of willful
neglect of a child in a manner likely to cause it unnecessary suffering or injury to
health;
b) The Road Traffic Act 1988 S170 (4) imposes a duty to report an accident within 24
hour, while S6 of the said Act, imposes a duty on a motorist to provide a police
officer with a specimen of breath when properly required to do so. Failure to do
either of these things amounts to an offence.
DUTY ARISING FROM COMMON LAW
A common law duty to act can arise in the following ways:
a) Duty arising from a special relationship:
The Common Law has imposed a duty of care on persons based on blood
relationships. A parent is under a duty to protect his young child from physical
harm. Therefore, a mother who fails to feed a child resulting in the child’s death
, lOMoARcPSD|109 710 91
can be criminally liable for such a failure.
, lOMoARcPSD|109 710 91
In Gibbins and Protor (1918) a man and his common law wife were convicted of
murder of the man’s child by reason of their failure to feed the child resulting in
the child’s death.
In R vs. Hood the duty was applied to spouses.
b) Voluntary assumption of a duty of care:
This duty can be viewed as an extension of the duty of care to incorporate other
persons. It is based on a relationship of reliance between the defendant and the
victim i.e. where an accused person has voluntarily assumed responsibility for
another’s care and then failed to fulfill that undertaking.
In R vs Stone and Dobinson (1977) Stone and his common law wife Dobinson
allowed Stone’s sisters Fanney to come to their home and live. Fanney, who was
morbidly anxious about becoming overweight, denied herself proper meals and
became unable or unwilling to leave bed. She developed bedsores and eventually
died of blood poisoning as a result of the untreated bedsores. The defendant had
not obtained medical assistance for Fanney although they knew she was unwell.
They were both convicted for manslaughter. The C.A. in dismissing their appeal
against conviction held that when Fanney had become helpless inform the
defendants were under a legal duty to summon help or care for her, themselves.
The failure to discharge this duty was the cause of Fanney’s death.
It is noted that if Stone had not allowed his sister to stay at his home and she had
died of the same condition at her own home or any other place, he would not
have been liable for her death since no duty of care would have been owed.
In R vs Instan (1893) D lived with her aunt, an elderly woman. The aunt
developed gangrene in her leg and was unable to care for herself. D being the
only person who knew of the Aunt’s condition, failed to provide her with food or
medication. The Aunt subsequently died and D was convicted of manslaughter.
On appeal Lord Coleridge CJ stated “English Law would be hopelessly deficient
if judges were to be unable to base liability on the common duty of care owed by
one relative to another.”
, lOMoARcPSD|109 710 91
c) A breach of a contractual duty:
OMISSIONS
It is a general rule in English Criminal Law that a person is not liable for an omission to
act unless the law imposes upon him a duty to act. A moral duty to act will not suffice.
A duty to act can arise by statute or common law. An omission to act without a
corresponding duty will not create an offence R vs. Wm Smith.
There must be a legal duty to
act. There must be a breach of
that duty.
The breach must have caused the offence to
occur. D must have the requisite mens rea.
DUTY ARISING FROM STATUTE
Statutes have created expressed offences of omissions in certain instances where the
defendanthas been under a statutory duty to take positive action e.g.
a) The Children And Young Person Act 1933 S 1 (1) creates the offence of willful
neglect of a child in a manner likely to cause it unnecessary suffering or injury to
health;
b) The Road Traffic Act 1988 S170 (4) imposes a duty to report an accident within 24
hour, while S6 of the said Act, imposes a duty on a motorist to provide a police
officer with a specimen of breath when properly required to do so. Failure to do
either of these things amounts to an offence.
DUTY ARISING FROM COMMON LAW
A common law duty to act can arise in the following ways:
a) Duty arising from a special relationship:
The Common Law has imposed a duty of care on persons based on blood
relationships. A parent is under a duty to protect his young child from physical
harm. Therefore, a mother who fails to feed a child resulting in the child’s death
, lOMoARcPSD|109 710 91
can be criminally liable for such a failure.
, lOMoARcPSD|109 710 91
In Gibbins and Protor (1918) a man and his common law wife were convicted of
murder of the man’s child by reason of their failure to feed the child resulting in
the child’s death.
In R vs. Hood the duty was applied to spouses.
b) Voluntary assumption of a duty of care:
This duty can be viewed as an extension of the duty of care to incorporate other
persons. It is based on a relationship of reliance between the defendant and the
victim i.e. where an accused person has voluntarily assumed responsibility for
another’s care and then failed to fulfill that undertaking.
In R vs Stone and Dobinson (1977) Stone and his common law wife Dobinson
allowed Stone’s sisters Fanney to come to their home and live. Fanney, who was
morbidly anxious about becoming overweight, denied herself proper meals and
became unable or unwilling to leave bed. She developed bedsores and eventually
died of blood poisoning as a result of the untreated bedsores. The defendant had
not obtained medical assistance for Fanney although they knew she was unwell.
They were both convicted for manslaughter. The C.A. in dismissing their appeal
against conviction held that when Fanney had become helpless inform the
defendants were under a legal duty to summon help or care for her, themselves.
The failure to discharge this duty was the cause of Fanney’s death.
It is noted that if Stone had not allowed his sister to stay at his home and she had
died of the same condition at her own home or any other place, he would not
have been liable for her death since no duty of care would have been owed.
In R vs Instan (1893) D lived with her aunt, an elderly woman. The aunt
developed gangrene in her leg and was unable to care for herself. D being the
only person who knew of the Aunt’s condition, failed to provide her with food or
medication. The Aunt subsequently died and D was convicted of manslaughter.
On appeal Lord Coleridge CJ stated “English Law would be hopelessly deficient
if judges were to be unable to base liability on the common duty of care owed by
one relative to another.”
, lOMoARcPSD|109 710 91
c) A breach of a contractual duty:
