Leaving Good Undone: Omissions in English Criminal Law
We know from current case law and statute that omissions may be, and are, punished although “[g]enerally in English criminal law a person is not liable for failing to act … even if another person’s life is in danger.” (1) There is a substantial exception from this rule, and it is generally accepted by both courts and academics: “a defendant is liable if he or she fails to act when under a duty to act.” (2)
However, the word “omission” in itself can be confusing.
What is an omission?
The Oxford English Dictionary currently describes the word “omission” as follows:
1. The non-performance or neglect of an action which one has a moral duty or legal obligation to perform; an instance of this. Recorded earliest in sin of omission
2. a. The action of omitting, leaving out, or not including a person or thing. b. An instance of this; (concr.) a person or thing that has been omitted or passed over. (3)
It is worth noting, especially in the context of this paper, that the first recorded instance of the word in English, around the beginning of the 15th century, defined an omission as “leaving good undone: when men leave the good they should do” and, among other examples, “to do negligently what one was bound by vow to do, or by command …and yielding not a good deed for another if one can.” (4)
The second recorded occurrence of the word, in the pietistic writings of Bishop Richard Pecock, explains the word as above — “leavings of [something] undone”, but also brings the counterpart concept: commissions, “the contrary doings against [one].” (5)
At least to what regards medieval pietistic thinking, an omission (in the meaning 1. above) appears to be considered just as bad as a commission. Given that the word and its counterpart applied to morals, and were associated as concepts with sins, we should not be surprised at the process of transition and correlation from the religious sphere to the judicial, leading to the contrasting pair of omission and act in use to this day.
The omission formulated by Rolle of Hampole is “leaving the good undone.” This presents us with the meaning familiar to law students and practitioners of today: “e.g. ‘failing to…’, usually in the context of an undertaking.” (6)
From a failing to a criminal matter
In his seminal essay on omissions in criminal law, Professor Andrew Ashworth enumerates five possible situations when a duty might be imposed by the courts:
- Prior created dangerous act ;
- Relationship duties ;
- Undertaken duties ;
- Duties of ownership or control of property (7) ;
- Citizenship duties.
This latter is less encountered in practice in the English context, but is often mentioned in theoretical approaches, especially in the context of “Good Samaritan Laws”. (8)
This point of view is generally held as the current position of the law, although with significant subtractions or additions to it. In Great Debates on Criminal Law (9), Jonathan Herring prefers to omit citizenship duties completely, whereas Smith and Hogan: Criminal Law introduces a new duty, namely that of Dangerous pursuits (10), and then renames (and shortens drastically) ‘Citizenship duties’ as ‘A general duty of rescue’. For clarity, Ashworth’s ‘Undertaken duties’ are also broken into ‘Contract’ and ‘Voluntary undertakings’.
Irrespective of the formulation (the language used and its interpretation being liable to bring further complications), the consensus is that once a duty to act exists, a breach by action or omission is likely to attract sanction.
It would be easy to dismiss further discussion saying that this clarifies the position and matters should always proceed accordingly. This paper starts from the premise that “The law does and should criminalise omissions to act just as much as it criminalises positive acts,” and we shall see now how exactly it does this.
Mustill LJ in Airedale National Health Trust v Bland said that “[t]he English criminal law … draws a sharp distinction between acts and omissions” but he showed his dissatisfaction by adding that “the current state of the law is unsatisfactory both morally and intellectually” and that “[f]or the time being all are agreed that the distinction between acts and omissions exists, and we must give effect to it.” (11)
We thus have an admission at the highest judiciary level that the state of affairs (as of 1993) was in need of reform and the discussion has been ongoing since at least 1985 when the Law Commission proposed a codification of the criminal law (12). In 1987, Professor Glanville Williams expressed his anxiety with regards to the status of omissions in the draft code, believing that “[it] provides too great scope for offences of omission,” (13) and critics have been calling for an overhaul ever since, becoming — to paraphrase a 2011 article by Andrew McGee — increasingly louder, and their words increasingly stronger . (14)
Although there is a general consensus that the law should punish omissions (15), it is not always clear as to what the omission are, in either of the main views on the subject: “the conventional view”, and the “social responsibility view” (16). In both views, the difficulty lies in separating acts from omissions, and deciding to what extent an omission can be said to have a positive effect and so have criminal liability imposed on it. We shall embrace Ashworth’s view that “although there are some clear cases of omission and some clear cases of act, there are many ambiguous cases” (17) in which act and omission — doing and non-doing — overlap, and shall consider things at face value through this perspective.
The philosophical distinction between acts and omissions is arguably too complicated to deal with in this paper at the length and breadth it deserves, and, following Lord Diplock’s example, we shall continue with it as it is. We can take a look instead at the current approach of the courts for the imposition of liability. This includes:
“(i) classification (is the case one of omission or act?); (ii) the scope of liability (is the offence in question one under which conviction can arise for omission?); (iii) the moral bases of liability (on what grounds can the law impose a duty to act?); (iv) issues of causation (how can D’s failure to act result in a proscribed wrong?). (18)
It will be necessary not just to look at some cases through this lens, but also, in order to understand the moral dimension of this approach, to return to the religious medieval man and his example of omission as “leaving good undone.” What else can we consider an omission other than a good left undone in a case like Miller (19), in which the defendant who set a mattress on fire moves to another room in order to sleep, without putting the fire out first? We can even say that Mr Miller, in the words of Rolle (20) “was bound by vow to do” something — in this case the vow being his duty to remedy a dangerous situation he initiated. This point proved to be crucial in his conviction for criminal damages. As a strict liability offence, it became irrelevant that Miller had had no intention to set fire to the house, that there was no mens rea (21). The House of Lords found that it was an “erroneous notion that failure to act cannot give rise to criminal liability in English law.” (22)
A different omission, but with the similar effect of being construed into an act, occurred in DPP v Santana-Bermudez (23); when asked whether he still had “any sharps” on him, a man who was going to be body searched by the police replied that he didn’t, after emptying his pockets. The constable who conducted the search then stuck her finger in a hypodermic needle. The issue at stake was whether the defendant could be guilty of assault by omission. The High Court found that he did not cause the assault by a positive act, but his omission did lead to it.
As an exercise, this is how the courts’ approach, as identified by Elliott and Ormerod, applies to Miller and Santana-Bermudez: (i) an omission was construed as an act; (ii) there was scope for liability; (iii) once the omission was viewed as a culpable act, there was a moral basis for the imposition of a duty to act; and (iv) but for the Defendant’s omission there would have been no damage or assault.
We now have a framework which is applied to future cases, and we might obtain some certainties, but it doesn’t mean that we have solved the bigger questions: (i) what differentiates omissions from an acts?; (ii) and if it is an omission, to which point does the scope for liability extends? As such, Maurice Kay J in Santana-Bermudez seems to share the annoyance shown by Lord Diplock twenty years previously in Miller:
“A great deal of undesirable complexity has bedevilled our criminal law as a result of quasi theological distinctions between acts and omissions.”
Conclusion: What to do next?
Argumentation on omissions in criminal law seems to be under the aegis of the parable of the Good Samaritan (24). Did the men walking past an injured man without helping him have a duty to act? Morally speaking, yes — in Jesus’ parable we are exhorted to love our neighbour.
From a legal point of view, the situation is different. In the words of Lord Diplock in Miller:
“The conduct of the parabolical priest and Levite on the road to Jericho may have been indeed deplorable, but English law has not so far developed to the stage of treating it as criminal; and if it ever were to do so there would be difficulties in defining what should be the limits of the offence.” (25)
In the 15th century, Bishop Pecock instructed his readers to find blame for omissions if “oure conscience schulde deem us gilty” (26). But as Lord Diplock underlined, morality and the law, although closely connected, are different things. Some European countries like France and Germany penalise the failure to help a person in difficulty, if this can be done without endangering oneself (27). Along these lines, there have been calls for the creation of a general duty of care in English Law that would impose a criminal sanction on people who fail to give assistance (28) and Prof Ashworth is one of the main proponents. Speaking in a radio panel discussion on BBC Radio 4 in January 2015 (29), he said:
“I think we need to have a law that states there should be a duty to assist… At the moment, English law is untidy and unprincipled, and I think we ought to state this principle and bring it in as a law … I am suggesting we should have a clearer law that should tell people they should give assistance to others in a wide range of situations, and that offence [from failing to give assistance] is a middle-ranking offence.”
This would not only bring the law to the moral position which maintains that one should be “yielding … a good deed for another if one can”; it may be argued (and indeed it is argued) that it would simplify a little of the already mentioned “undesirable complexity”. As the law currently stands, it does criminalise omissions to act just as much as it criminalises positive acts. However, in a hybrid conventional and social responsibility view more attuned to contemporary sensibilities and moral compass, as that proposed by Ashworth (30), it might be more conducive to social cohesion to encourage citizen action and responsibility more, and punish some omissions less. It will also do something which the public generally welcomes: it could protect would-be good Samaritans from the possible sanction of the law. (31)
— — — — — — — — — — — — —
- Jonathan Herring, Great Debates in Criminal Law (Palgrave Macmillan 2009), p. 24
- “omission, n.” OED Online. Oxford University Press, December 2014. The word comes in English from Anglo-Norman around 1300, in the sense 1. For sense 2, word appeared in legal English around 1440 in a Court of Chancery report: “Bothe oblygaciouns and condiciouns were made and wretone… with out eny omissioun or varyaunce” http://www.oed.com/view/Entry/131211?redirectedFrom=omission (accessed February 10, 2015).
- Richard Rolle of Hampole, The Form of Perfect Living (Thomas Baker, London 1910), p. 33–34. The writing itself probably dates from before 1400.
- Bishop Pecock; Vaughan Hitchcock, E (Ed.) The Donet (Early English Text Society No. 156, Oxford University Press 1921), p. 96: “knowleching … alle þe omyssiouns of hem, and alle commysiouns agens hem: þat is to seie, alle þe levings of hem undoon, and alle þe contrarye doingis agens hem, … in which oure conscience schulde deem us gilty.” Writing dates from cca. 1445
- Andrew Ashworth, “The Scope of Criminal Liability for Omissions” (1989) Law Quarterly Review, 105(Jul), p. 424
- Cases for points 1–4: R v Miller  2 AC 161; R v Gibbins & Proctor  13 Cr App Rep 134; Stone and Dobinson  Q.B. 354, R v Pittwood  19 T.L.R. 37, R v Dytham  Q.B. 72; Tuck v Robson  1 W.L.R. 741
- Note there are two types of Good Samaritan Law: one imposes a general liability to act; the other is meant to protect “everyday heroes” from negligence or criminal liability (in certain cases) if their altruistic actions are contested in court. This latter type is enacted in the UK as the Social Action, Responsibility and Heroism Act 2015
- Herring, op.cit., p. 24–25
- David Ormerod, Smith and Hogan: Criminal Law. Cases and Materials (10th edition, Oxford University Press 2009), p. 105. Case law quoted is Khan and Khan  Crim LR 830
-  AC 789
- Law Commission, Codification of the Criminal Law (Law Com No 143, 1985)
- Glanville Williams, “What should the Code do about omissions?” (1987) Legal Studies 7, p. 92–118
- Andrew McGee, “Ending the life of the act/omission dispute: causation in withholding and withdrawing life-sustaining measures” (2011) Legal Studies, Vol. 31 No. 3, September, p. 468
- Herring, op.cit., p. 25
- Both views criticised to some extent by Williams, “Criminal omissions — the conventional view” (1991) Law Quarterly Review, 107 (Jan), p. 86–98
- Andrew Ashworth, Principles of Criminal Law (Oxford University Press 2009) p. 100
- Tracey Elliott and David Ormerod, “Acts and Omissions — A Distinction without Defence?” (2008) Cambrian Law Review 39, p. 40. Also in Smith and Hogan, op.cit., p. 89
- R v Miller  UKHL 6
- Rolle of Hampole, op.cit.
- A general problem in liability for omissions, as Actus reus and Mens rea do not coincide
- Per Lord Diplock,  UKHL 6. Lord Diplock also criticised the common use of the formula actus reus, which he observed that, by its very wording, suggest an action
-  EWHC Admin 2908
- The Bible, King James Version, Luke 10:25–37
-  UKHL 6
- Bishop Pecock; Vaughan Hitchcock (Ed.), The Donet, op.cit.
- Andrew Ashworth and Eva Steiner, “Criminal Omissions and public duties: the French experience” (1990) Legal studies 10, p. 153–164
- Ashworth, op.cit., p. 454
- Andrew Ashworth speaking during the “Unreliable Evidence” radio series, episode Good Samaritan Law (BBC Radio 4, 14 January 2015). The programme was hosted by Clive Anderson; other guests: former law lord, Lord Hoffman, barrister Peter Cooke and French law expert Catherine Elliott
- Although coming from a different perspective than Ashworth, Glanville Williams (1991), op.cit., p.93, agreed with lower penalties for some omissions: “Ministers continually bewail the rise in the prison population, yet raise maximum punishments for no better reason than to convince the general populace that they are trying to control crime.”
- Jonathan Romain, “Let’s not turn our backs on a good Samaritan law” The Guardian (London, 30 January 2015)
Andrew Ashworth and Jeremy Horder, Principles of Criminal Law (7th edition, Oxford University Press 2013)
Andrew Ashworth, Principles of Criminal Law (6th edition, Oxford University Press 2009)
Jonathan Herring, Great Debates in Criminal Law (Palgrave Macmillan 2009)
David Ormerod, Smith and Hogan: Criminal Law. Cases and Materials (10th edition, Oxford University Press 2009)
Michael Moore, Placing Blame: A Theory of the Criminal Law (Clarendon Press 1993)
Bishop Pecock, Elsie Vaughan Hitchcock (Ed.), The Donet (Early English Text Society No. 156, Oxford University Press 1921). Available in facsimile online at https://archive.org/details/donetpeco00peco, accessed 01 February 2015
Richard Rolle of Hampole, The Form of Perfect Living (Thomas Baker, London 1910). Available in facsimile online at http://www.gutenberg.org/ebooks/25856 , accessed on 31 January 2015
Victor Tadros, Criminal Responsibility (Oxford University Press, 2007)
Andrew Ashworth, “The Scope of Criminal Liability for Omissions” (1989) Law Quarterly Review, 105(Jul), p. 424–459
Andrew Ashworth, “Ignorance of the Criminal Law, and Duties to Avoid It” (2011). Modern Law Review 74(1) , p. 1–26
Andrew Ashworth and Eva Steiner, “Criminal Omissions and public duties: the French experience” (1990) Legal studies 10, p. 153–164
Tracey Elliot and David Ormerod, “Acts and Omissions — A Distinction without Defence?” (2008) Cambrian Law Review 39, p. 40–59
Tracey Elliott, “Liability for Manslaughter by Omission: Don’t Let the Baby Drown!” (2010) Journal of Criminal Law 74, p. 163–179
Andrew McGee, “Ending the life of the act/omission dispute: causation in withholding and withdrawing life-sustaining measures” (2011) Legal Studies, Vol. 31 No. 3, September, p. 467–491
Jonathan Romain, “Let’s not turn our backs on a good Samaritan law” The Guardian (London, 30 January 2015) www.theguardian.com/commentisfree/2015/jan/30/good-samaritan-law-bureaucracy-health-safety-food-shelter, accessed on 31 January 2015
Glanville Williams, “What should the Code do about omissions?” (1987) Legal Studies 7, p. 92–118
Glanville Williams, “Criminal omissions — the conventional view” (1991) Law Quarterly Review, 107(Jan), p. 86–98
Airedale National Health Trust v Bland  AC 789
Director of Public Prosecutions v Santana-Bermudez  EWHC Admin 2908
R v Adomako  UKHL 6
R v Dytham  Q.B. 72
R v Gibbins & Proctor  13 Cr App Rep 134
R v Miller  2 AC 161
R v Pittwood  19 T.L.R. 37
Stone and Dobinson  1QB 354
Tuck v Robson  1 W.L.R. 741
Criminal Damage Act 1971
The Social Action, Responsibility and Heroism Act 2015
Broadcasts and Other:
“Unreliable Evidence” series, episode Good Samaritan Law (BBC Radio 4, 14 January 2015)
OED Online Oxford University Press, December 2014, available online at <http://www.oed.com > accessed 31 January 2015
A general duty to act is essential as it imposes an obligation onto society to act responsibly, in accordance to the criminalization of omissions. In recent times the criminal law has been concerned with imposing liability for omissions. However, this was not the case in the past as the law was more concerned with the prohibition and punishment of positive acts (Card, 2004). 'An act is the most common basis of the actus reus' .The Actus Reus of an offence is its conduct element. It 'describes what the defendant must be proved to have done (or sometimes failed to do), in what circumstances, and with what consequences'.
Before proceeding further it is necessary to clarify what is meant by an omission. An omission is the failure to act which; can sometimes give rise to criminal liability and this failure to act can constitute the Actus Reus of an offence. According to Herring, the criminal law on omissions states that 'a defendant is guilty of a crime only when failing to act, where he or she is under a duty to act'. These acts and omissions can be placed under the 'general rubric' of 'conduct' (Fletcher, 1978). Professor Galnville Williams once stated that, ‘It is legitimate for the law to criminalize holding someone under water so that they can drown, but not to seek to compel a person to act by criminalizing (E.g.: drowning a stranger)’ So, to what extent can we actually criminalize people?
To continue, the distinction between an omission and an act is unclear and it depends on the definition of the offence if criminal liability for an omission can be imposed (Card, 2004). The definition of the offence may require an act to be committed or state whether a person has a duty to act in a certain situation. The question of whether the omission or failure to act can be considered as the Actus Reus of an offence arises. Many law experts support the view that it is impossible to cause an event simply by not doing anything. On the other hand, several law experts...