Failure to Act

General principle

There is no general liability for failure to act under the common law of England and Wales. A crime can be committed by omission, but there can be no omission in law in the absence of a duty to act. The general basis for imposing liability in criminal law is that the defendant must be proved to have committed a guilty act whilst having had a guilty state of mind. The physical elements are collectively called the actus reus and the accompanied mental state is called the mens rea.

Liability for omissions

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The general rule is that there can be no liability for failing to act, unless at the time of the failure to act the defendant was under a legal duty to take positive action. ‘’Unless a statute specifically so provides, or ….the common law impose a duty upon a person to act in a particular way towards another… a mere omission to act cannot lead to criminal liability’’.(R Vs Miller[1983]1 All ER 978.) A positive duty to act exists in the following circumstances:

• Duty arising from statute Liability for failing to act will be imposed where the defendant can be shown to have been under a statutory duty to take positive action. A leading example of such a case is provided by the children and Young Persons Act 1933, which creates the offence of wilfully neglecting a child. Hence by simply failing to provide food for the child or failing to obtain appropriate medical care a parent could be held criminally liable for any harm that results. (Greener Vs DPP[1996] The Times, Feb. 15,1996).
• Duty arising from a Contract. Where a person is under a positive duty to act because of his obligations under a contract, his failure to perform the contractual duty in question can form the basis of criminal liability. (R Vs Pittwood [1902] 19 TLR 37).

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