The word crime is no longer something foreign to all of as it has become a part of our daily lives.

If one were to ask a reasonable person to define the word, he or she would simply say that a
crime occurs when someone breaks the law which is then punishable by the state. This is
definitely a very basic understanding of the word and it is not at all wrong, but when it comes to
defining crime in a legal sense, that basic understanding would not be sufficient.
As a general rule, there are two elements to a crime which are the actus reus (prohibited conduct)
and the mens rea (mental element). The criminal law does not seek to punish people for their evil
thoughts; an accused must be proved to be responsible for the conduct prohibited by the law and
must be paired with the state of mind of the accused at that time; usually intention or
recklessness. There is a Latin maxim which encapsulates this principle actus non facit reum,
nisi mens sit rea which means: the act is not criminal in the absence of a guilty mind. Generally,
it is safe to say that a positive act has to be present in order to constitute a crime.
Stephans in his Digest of the Criminal Law states:
it is not a crime to cause death or bodily injury even intentionally by any omission
In every general rule however, there are bound to be some exceptions; both Parliament and the
common law have recognized some situations where they believe that amending this principle is
justifiable. A crime need not necessarily be a positive act as there are instances whereby some
crimes can involve no action at all, or not taking action. There are certain situations where one
has an affirmative duty to act such that liability will be imposed upon failure to act; in such
situation therefore, an omission is treated in law equivalent to a positive act. An omission will
not generally attract criminal liability but will when there is a duty of care imposed by law which
is willfully breached and such a breach causes a prohibited criminal result.
Parliament has legislated several acts under which specific offences are completed through
omissions, for example Section 170(4) of the Road Traffic Act 1988 makes it an offence if one
fails to report a road traffic accident to the police within 24 hours. A motorist who fails to
provide a police officer with breath specimen when required to do so commits an offence under
Section 6 of the Road Traffic Act 1988. Although examples mentioned above impose criminal
liability through omission, it does not create a controversial subject so long as they respect the
general principles of the criminal law. However, there are provisions in some acts relating to

more serious crimes which can be controversial, for example Section 38B(2) in the Terrorism Act
2000 which states:
The person commits an offence is he does not disclose the information as soon as reasonably
practical
As Lord Lloyd's review of terrorism legislation noted, the provision targets persons on the
fringes of terrorist activity. It would be unjust to enforce criminal liability to an individual who
may have given practical help or information to someone not knowing that he or she is
engaging in a terrorist activity and only discovers that at a later stage.
Like the Parliament, the courts too have developed a number of duty situations where liability
may incur from failure to act, one of them being duty arising from contractual obligation. This
kind of situation arises because of a job that an individual holds thus, giving him some form of
duty to the public. This situation can be illustrated in the case of R v Pittwood where the accused
was employed by the railway company whose duty involved shutting a gate when a train was due
to pass. A person crossing the track was killed by an incoming train; the accused was charged
and convicted of gross negligence manslaughter. The decision of the court is justifiable because
the accused was paid to perform a duty, thus his failure to act would enforce liability upon him.
Wright J said the following:
There was a gross and criminal negligence; as the man was paid to keep the gate shut and
protect the public. A man might incur criminal liability from a duty arising out of contract.
Another area that the courts have identified is that of duty arising from relationship. In common
law parents have a duty to their children to protect them from physical harm and that spouses are
under a duty to aid each other. In the case of R v Gibbins & Proctor, a man and a woman (whom
he was living with) were convicted of the murder of the mans daughter for failing to feed the
mans daughter and died as a result. The courts have confirmed the existence of this exception
under Section 1(2) (a) of the Child and Young Persons Act 1933 which states:
A parent or other person legally liable to maintain a child or young person, [or the legal
guardian of a child or a young person,] shall be deemed to have neglected him in a manner

likely to cause injury to his health if he had failed to provide adequate food, clothing, medical
aid or lodging for him
Duty arising from voluntary assumption is where a person does a number of acts that
demonstrates that he has chosen to undertake some degree of responsibility to another. This is
illustrated in the case of R v Stone & Dobinson, where the victim a woman who was ill, being
under the care of her brother and his common law wife, both which whom are of low average
intelligence. The defendants tried their utmost best to care for the victim but she refused their
help resulting to her death. It was held that both defendants were liable for the victims death;
Stone was under a duty through special relationship and Dobinson was under a duty through
voluntary assumption. This case does not demonstrate a justifiable exception as it unjust to send
them to prison when they both have tried to care for the victim within their capabilities.
However, the case of R v Instan is more justified. The defendant lived with her aunt who died
after the defendant failed to feed her or get medical help when she was unable to care for herself.
The defendant was held liable for her aunts death and was convicted of manslaughter on the
basis that by remaining with her aunt a duty was imposed on her to care for her aunt.
Duty through holding public office can be shown in the case of R v Dytham where a police
constable who was off duty in uniform failed to come to the assistance of a man who was being
assaulted. The defendant was convicted of willfully, and without reasonable excuse, neglecting to
perform a duty. In this case, liability is justified as the police held a position of public trust and in
addition he was equipped with skills provided from special training in the police force which
puts him in a greater position than the average person to protect the victim. Although the
decision is justified, the question is, why was the police constable not convicted of murder or
manslaughter instead? as seen in the case of R v Stone & Dobinson.
Another area that the courts have identified is of duty through creation of dangerous situations
which can be illustrated in the case of R v Miller. The defendant accidentally dropped a lit
cigarette on a mattress that he was sleeping on and when he woke up, took no steps to put out the
fire which then created further damage to the house. The defendants appeal against the
conviction was dismissed on the grounds that responsibility arises where defendant had created a
dangerous situation and it is within their powers to neutralize that danger.

To conclude, some of the exceptions are clearly justifiable such as the duty of a parent to a child,
but there are still flaws with the law of omission as some of the duties that are mentioned above
appear to be inconsistent. How is it that a person of low average intelligence can be held liable
for manslaughter when in fact, they have already tried to care for an individual within their
means, whilst a police constable who is well equipped with knowledge and skills was only
convicted of a misdemeanor for neglecting a person? This is where the law seems to be
incoherent in determining a conviction. I humbly submit that there is a need to review the law on
this matter in order to provide a more measurable standard to determine the extent of which a
person owes a duty to act to another. In doing so, not only would justice be fairly administered
but there would be an opportunity to alleviate the inconsistencies of the courts in determining a
conviction.