Only the most scandalous omissions should be criminalised, and even then, only in situations where the person concerned had a specific duty to act, whether because of his or her behaviour, profession or family relations with the persons harmed by his or her omission. In this way, failures must be studied, estimated and proven. As master of ceremonies, the trial judge should pay attention to cross-examination for insignificant omissions and inconsistencies. A clear circumstance in which a person can be held responsible for inaction is when they create a dangerous situation that can reasonably endanger others. In such cases, if the person is aware that he or she has caused the risk, he or she is required to prevent the harm. [28] The principles enunciated by Lord Diplock in R. v. Miller makes it clear that risk creators are required to take all actions reasonably within their power and that failure to do so often results in criminal liability. [29] Such obligations may also arise when a person who is not aware of the danger posed by his or her behaviour becomes aware that he or she has created a dangerous situation and is not taking action. In Fagan v Metropolitan Police Commissioner,[30] a man accidentally drove into the foot of a police officer, it was his inability to move after becoming aware of his behaviour that motivated his conviction. Nevertheless, some crimes do not need proof of mens rea; These offences are distinguished from strict liability offences. Actus reus refers to the act or omission of the physical factors of a crime, as required by laws and regulations.

In actus reus, there must be both conscious action and sequential outcome. However, there are some exceptions to the intentional act requirement known as omissions. A criminal act or omission of an act must have occurred. It means refraining from doing something or not performing an action, and committing a crime. Failure to act may also create the basis for criminal liability. An omission is defined as the failure to perform a particular act. The act may be committed innocently or negligently, but it may create an obligation only if the law imposes a duty to act and the defendant violates that duty. Contractual obligations, verbal agreements or even substantial involvement are likely to result in criminal liability for omissions. It is suggested that the principles set out in R.

v. Miller are likely to apply to all cases where, in the case of negligent creation of a risk, a person fails to take the steps that a reasonable person would take to avoid a risk to others. [13] While there is no general obligation for an uninvolved person to try to contain a fire or call the fire department, it is the causal link between a person`s actions in creating a risk that leads to the duty to protect others from harm. [14] The offence was abolished in 1967, but new statutory offences of failing to comply with the obligation to disclose terrorist acts or financing under section 19(2) of the Terrorism Act 2000 and failing to disclose knowledge or suspicion of money laundering continue the tradition. Similarly, the element of appropriation in theft under section 1 may be committed by act or custody if there is an obligation to return the property, deception under section 15(4) of the Theft Act 1968 may be committed by what is not said or done, and “dishonestly secured” under section 2(1) of the Theft Act 1978 may also be committed by committed by omission (see R v Firth (1990) CLR 326, in which the defendant failed to inform the NHS that patients using NHS facilities were indeed private patients, meaning they received use of the facilities free of charge). One of the simplest examples is the offence of failure to report a road traffic accident (section 170 of the Road Traffic Act 1988). [4] As noted above, there are limited circumstances in which the criminal law imposes a duty to act. Perhaps the most obvious of these is when there is a family relationship between the parties.

One of the first examples is R. v. Senior,[3] where a father was convicted of manslaughter for refusing to take medication to treat his son`s pneumonia because of his religious beliefs. The justification here is pragmatic. As a father, his fundamental duty is to keep his son alive; By refusing to see a doctor, he was as responsible for his son`s death as he was for the disease that killed him. This was somewhat refuted decades later in R. v. Lowe,[4] when a low-intelligence father was acquitted of manslaughter. Her daughter died after failing to call a doctor; In the present case, on the ground that he had not foreseen the consequences of that failure.

It is argued that this argument is too cautious because it is not intended to criminalize an omission, suggesting that parents caring for infants are not required to know when to seek medical help. Although this judgment was influenced by the poor intelligence of the father and mother, such knowledge is certainly an irrefutable requirement for parenthood, and since children had already been taken from Mr. Lowe, he should have been even more vigilant in these circumstances. Alternatively, the actus reus requirement may also be satisfied by an omission. This only applies if the person had a duty to act and did not act. The courts were initially reluctant to be held accountable for omissions, as the first case of R. v. Smith [7], who was tried in 1869.

The fact is that a guard employed by a railway company took a break from his duties, and during this time a man was killed by an oncoming train. Lush C.J. was of the view that, although an omission could constitute murder, since there was no legal obligation for the railway company to provide a security guard, there could be no criminal liability. [8] Thirty years later, however, in R. v. Pittwood,[9] the Court took a different position than a case with similar facts. In this case, a carrier of a Somerset rail service negligently forgot to close a gate that allowed vehicles (horses) to enter through a crossing while he was going to lunch. It was determined that, although employed by the private sector, he contributed significantly to the accident by opening the barrier and then not closing it. [8] The reasoning used by the courts, as in this case, may be considered problematic in establishing responsibility for many omissions.

Lord Justice Wright`s position was that the guard`s misconduct contributed to the accident, which would indicate that it was his opening of the door that was criminalized, not his failure to close it. [10] John Smith argued that the verdict implies that an acquittal would have been possible if the guard had come on duty to find an open door and not close it, a result Smith calls “morally offensive.” [10] According to the literal definition of actus reus, no omission can constitute a crime. However, the courts have rightly adopted a logical, albeit cautious, approach in situations where a person`s inaction is punishable. In most of the above cases, especially those where people have relaxed and allowed family members to die of neglect, there can be no disbelief that the seriousness of a criminal conviction is justified. This desire to make fair judgments must be carefully weighed against the fundamental legal principles of individual freedom and autonomy. The general rule is that parents, guardians, spouses (see R. v. Smith (1979) CLR 251, if the wife died after the birth of a stillborn child born to her husband at home) and any person who voluntarily agrees to care for another dependant because of age, illness or other infirmity: may have a duty, at least until care can be entrusted to someone else. In three cases, the obligation was implied: in general, physicians and hospitals are required to provide adequate care to their patients, and an omission may violate this obligation unless an adult patient with ordinary legal capacity terminates the obligation by withholding consent. There is a conflict of public order.

The policy of patient autonomy enshrines a right to self-determination – patients have the right to live their lives as they wish, even if it harms their health or results in premature death. The interest of society is to defend the concept that all human life is sacred and must be preserved if possible. It is now generally accepted that the right of the individual comes first. In Re C (Adult: Refuse of Treatment) (1994) 1 WLR 290, a patient diagnosed as chronic paranoid schizophrenic refused to have his gangrenous foot amputated. This was permitted because his general ability showed that he was able to understand the nature, purpose and effect of life-saving treatment. In Re B (Adult: Refusal of Medical Treatment) (2002) 2 AER 449, the presumption that an adult has full legal capacity may be rebutted if: In criminal law, at common law, there was no general duty of care owed to fellow citizens. The traditional view was summed up in the example of seeing a person drown in shallow water and not make rescue efforts, where commentators borrowed the phrase: “Thou shalt not kill, but thou shalt not need to formally seek to keep someone alive.” (Arthur Hugh Clough (1819-1861)) to support the thesis that inaction does not entail criminal liability.