Criminal act or omission

The following Corporate Crime practice note provides comprehensive and up to date legal information covering:

  • Criminal act or omission
  • Omission
  • Statutory omissions
  • Care of children and special relationships
  • Contractual duty to act
  • Failure to provide medical treatment
  • Defendant created a danger

Criminal act or omission

Omission

A defendant must be shown to have had the relevant mental state of mind or intention at the time that the act comprising offence is committed. The conduct element of an offence usually requires proof of a positive act. There is no general duty to act, for example as a passer-by to save a person who appears to be drowning in a lake. An omission or failure to act will constitute the conduct or action element of the offence, and so give rise to liability, only where the defendant is under a legal duty to act. Where statute provides that an offence may be committed by omission it imposes a duty on a class of people and defines the scope of the duty. For example, failing to provide a specimen of breath when requested to do so contrary to the Road Traffic Act 1988, s 6 or failure to keep proper accounts or business records under the Companies Act 2006.

Where the offence is a result crime and requires proof of the consequences of the defendants conduct, such as murder, the court will determine whether a defendant's omission is criminal following consideration of two questions:

  1. is the offence capable of being committed by omission?

  2. was the defendant under a duty to act?

Where the court finds that the answer to both these questions

is yes, the burden remains on the prosecution to prove all the other elements of the offence and the mental element required beyond reasonable doubt.

A duty to act may arise from:

  1. statute

  2. a special relationship

  3. where the defendant creates a dangerous situation

  4. contract, or

  5. an obligation to provide medical care

The duty to act is discharged where the defendant has taken reasonable steps. The duty is not so heavy that the defendant must risk his own life to discharge it. What is reasonable will depend on the circumstances of the case and will be judged objectively. So the steps which a life guard took to save a person from drowning will be judged against the steps which a reasonable lifeguard would have taken in the same circumstances. If the steps taken to discharge the duty where incompetent or negligent then the defendant is unlikely to be judged to have reasonably discharged his duty.

Statutory omissions

Failure to prevent or report the criminal activities of other persons is not ordinarily an offence but some statutes specifically provide for offences of failing to report. Under the Terrorism Act 2000, s 19, failing to report terrorism is a criminal act. As is failure to disclose knowledge or suspicion of money laundering under the Proceeds of Crime Act 2002. The burden is significantly onerous for accountants, solicitors and those working in finance and banking. The Proceeds of Crime Act 2002, ss 330, 331 and 332 create offences of failure to disclose money laundering as defined by s 340(11) and apply to suspicion of any criminal activity. Actual knowledge or suspicion is not required under ss 330 or 331 but if the defendant had reasonable grounds for suspicion the duty to disclose arises.

See Obtaining disclosure.

A driver may be criminally liable for failing to reporting an accident or for failing to stop.

There are many regulatory provisions which impose duties on specified persons to act in a particular way and which impose criminal sanctions for failure or omission to act. The Companies Act 2006 provides for many offences which can be committed by officers of a company who fail to keep the records required or provide information in the correct way. Some of these offences carry a maximum penalty of 2 years' imprisonment.

See Directors' disqualification orders in the criminal courts.

A failure to act is also criminalised in certain situations under Health and Safety at Work legislation.

See Health and safety—summary only offences.

Other statutes contain specific duties to act in a certain prescribed way, for example it is an offence to fail to keep a dangerous dog under control in a public place as proscribed by the Dangerous Dogs Act 1991.

Care of children and special relationships

As well as the statutory duty to care for children provided for by the offence of the wilful neglect of a child under the Children and Young Persons Act 1933, s 1 other duties are created by virtue of the relationship. A parent or person over the age of 16 years who has responsibility for a child under 16 may be liable for the wilful neglect of that child which was likely to cause unnecessary suffering or injury to health. This includes a failure by a parent to provide or obtain adequate food, clothing or medical care. The failure of parents to feed and care for their children has given rise to liability for manslaughter and murder in R v Gibbons and Procter (1918) 13 Cr App R 134.

Where the defendant is in a close or special relationship to one another, the common law may impose a duty on the defendant to act on behalf of the other. A duty may arise in the family relationships, where a couple live together as husband and wife, or where a child continues to live with, and be dependent upon, his parents over the age of 16. (R v Smith (1979) 1 Cr App Rep (S) 339, [1979] Crim LR 251.) Where a defendant voluntarily undertakes to care for another who is unable to care for himself as a result of age, illness or other infirmity, the defendant may incur a duty to discharge that undertaking. Stone and Dobinson were each convicted of her manslaughter for failing to care for Stone's sister who was anorexic and unable to care for her self, having taken her into their home when she was ill, they had assumed a duty of care for her and had been grossly negligent in the performance of that duty.

Contractual duty to act

A legal duty to act may arise from a contract of employment or other contractual relationship. In R v Pittwood (1902) 19 TLR 37 Taunton Assizes the defendant, a level crossing keeper whose job it was to shut the gate whenever a train was passing through. His contract of employment created a duty to protect the safety of the public when they crossed the railway and the public would be affected by his negligent performance of that contract. Having left the gate open one day, resulting in the death of one person and the serious injury of another, Pittwood was charged with and convicted of manslaughter.

A contractual duty to act would apply also to a policeman who may be criminally liable for failing to discharge these duties whilst he was at work. Dytham was charged with misconduct in public office as he deliberately failed to carry out his duties as a police constable by omitting to take any steps to preserve the peace or to protect a man being assaulted or to arrest or otherwise bring to justice the victims assailants.

The Children Act 1989 places a duty

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