Introduction to Actus Reus by Omission
In your study of Criminal Law for Paper 2, you have already learned that the actus reus is the "guilty act" or the conduct element of a crime. Usually, we think of this as a physical action—like hitting someone or taking an item that doesn't belong to you. However, in English law, the actus reus can also be an omission. This is simply a fancy legal word for failing to act.
Imagine you see someone drowning in a shallow pool. You are a great swimmer, but you decide to keep walking and finish your ice cream instead. Have you committed a crime? In many cases, the answer might surprise you! This chapter explains when "doing nothing" becomes a criminal act.
The General Rule: No Liability for Omissions
The general rule in English law is that there is no criminal liability for an omission. Unlike some other countries, England and Wales do not have a general "Good Samaritan" law. This means you generally do not have a legal duty to step in and help a stranger in distress, even if it would be easy for you to do so.
Why? The law values individual freedom. It is easier to tell people what not to do (e.g., "don't steal") than to tell them what they must do (e.g., "save everyone you see in trouble").
Key Takeaway: A moral duty to help is not the same as a legal duty to act.
The Exceptions: When You MUST Act
A defendant will only be liable for an omission if the prosecution can prove they had a legal duty to act. Don't worry if this seems complicated; there are only a few specific situations where this duty arises. You can remember them as "categories of duty."
1. A Duty Arising from a Statute
Sometimes, Parliament passes a law (an Act of Parliament) that explicitly says you must do something. If you fail to do it, you have committed the actus reus of a crime.
Example: Under s3 Fraud Act 2006, a person can be guilty of fraud if they fail to disclose information which they are under a legal duty to disclose. Here, the actus reus is the failure to speak up.
2. A Duty Arising from a Contract
If you are paid to perform a specific job that involves protecting people, your failure to do that job can lead to criminal liability.
Example: A lifeguard at a swimming pool has a contractual duty to watch the swimmers. If they go on a long break while the pool is full and someone drowns, their failure to be at their post is an omission that forms the actus reus of a crime.
3. A Duty Arising from a Relationship
Certain relationships automatically create a legal duty to care for the other person. This is usually based on dependency.
Example: Parents have a legal duty to look after their young children. If a parent fails to feed their child, that "failure to act" is the actus reus for a serious offence.
4. A Voluntary Assumption of Care
Even if you aren't related to someone, if you voluntarily take on the task of looking after them (and they depend on you), you have "assumed" a duty. You cannot simply stop caring for them without making sure someone else takes over.
Example: If you bring an elderly, ill neighbour into your home to look after them, you have voluntarily assumed a duty. If you then stop giving them food or medicine, you may be liable for an omission.
5. A Duty Arising from an Official Position
People in public offices, such as police officers, have a duty to act to protect the public or uphold the law, even when they are "off the clock" in some circumstances.
Example: If a police officer watches a person being beaten up and does nothing to stop it or call for help, they have breached their official duty.
6. A Duty Arising from Creating a Dangerous Situation
This is a very important category for Paper 2! If you accidentally do something that creates a danger, you have a legal duty to take reasonable steps to fix it or limit the damage once you become aware of it.
Example: Imagine you are smoking and accidentally drop a cigarette on a mattress. You wake up and see the mattress is smouldering. You don't have to put it out yourself if it's dangerous, but you must take action, like calling the fire brigade. If you just move to another room and go back to sleep, you are liable for the damage caused by the fire because you failed to act.
Quick Review Box:
An omission can only be an actus reus if there is a DUTY:
1. Dangerous situation created by the defendant.
2. Under a Statute (e.g., Fraud Act 2006).
3. Tasked by Contract (e.g., Lifeguard).
4. Your special relationship or voluntary care (e.g., Parent/Child).
Applying Omissions in Paper 2 Scenarios
In your Paper 2 exam, you will often be given a scenario and asked to advise whether a character is liable. When you see a character "doing nothing," follow these steps:
- Identify the Omission: State clearly what the person failed to do (e.g., "John failed to call the fire brigade").
- Check for a Duty: Ask yourself: Does John fall into one of the categories above? (e.g., "Did John create the danger? Does he have a contract?").
- Explain the Duty: If he has a duty, explain why. If there is no duty, explain that under the general rule, he is not liable for failing to act.
- The "Reasonable Steps" Rule: Remember, the law only requires a person to take reasonable steps. A person isn't expected to put their own life at risk to save someone else.
Common Mistakes to Avoid
Mistake 1: Confusing Omissions with Causation.
Even if there is a duty to act, you must still prove that the omission caused the result. If a person would have died anyway, even if the defendant had acted, causation might not be proven. (See the "Causation" chapter for more on this).
Mistake 2: Thinking Moral Wrongness = Criminal Liability.
The exam might describe a character who is very mean or selfish for not helping. Don't be fooled! If they don't have one of the legal duties listed above, they haven't committed the actus reus by omission.
Mistake 3: Forgetting Mens Rea.
Remember that for most crimes, you need both an Actus Reus AND a Mens Rea (the mental element). Even if someone fails to act, the prosecution still has to prove they had the required intention or recklessness for that crime.
Summary of Key Terms
Omission: A failure to act when there is a legal duty to do so.
Statutory Duty: A requirement to act because a written law says so.
Actus Reus: The physical or conduct element of a crime (can be an act or an omission).