Omissions Cases

R v Ahmad (1986) 84 Cr App R 64

Facts: The defendant (D), a landlord, failed to supply a key to a tenant. The tenant argued that this was an act contrary to s1 of the Protection From Eviction Act 1977: this states that it is an offence to “act” in a way “calculated to interfere with the peace or comfort of [a] residential occupier”, with the intent to cause that residential occupier “to give up the occupation of the premises”.

Held: D was found to be not guilty. In order to be convicted under s1 of the Protection From Eviction Act 1977, the landlord (D) would have tocommit an "act” (which was clearly required by the statute). Here, D merely ommitted to act (i.e. omitted to give the key to the tenant), so could not be guilty by failing to act.

Airedale NHS Trust v Bland [1993] AC 789 (House of Lords)

Facts: Tony Bland was a young supporter of Liverpool F.C. who was caught in the Hillsborough crush which reduced him to a Persistant Vegetative State. He had been in this state for three years and was being kept alive on life support machines. His brain stem was still functioning, which controlled his heartbeat, breathing and digestion, so technically he was still alive. However, he was not conscious and had no hope of recovery. The hospital, with the consent of his parents, applied for a declaration from the court to lawfully discontinue all life-sustaining treatment and medical support measures designed to keep Bland alive in that state, including the termination of ventilation, nutrition and hydration by artificial means.

Held: The declaration to end treatment was granted.

Although the court recognised the intention was to cause Bland’s death, the withdrawal of treatment was properly characterised as an omission. If there is a duty for the hospital to act, the hospital would be criminally liable for the omission. However, there is no duty for a hospital to treat a patient if it is not in the best interest of the patient. Since there was no prospect of the treatment improving his condition the treatment was futile and there was no interest for Tony Bland in continuing the process of artificially feeding him upon which the prolongation of his life depends.

See the full case here

R v Chattaway [1922] Cr App R 7

Facts: A parent’s duty of care to their child may, in some situations, continue after the child reaches the age of majority. Most notably, the duty of care will continue where the child, having reached the age of 18, is incapable of looking after him or herself. In this case, the defendants’ helpless daughter (aged 25) was starved due to their omission to feed her.

Held: The parents owed a legal duty to take care of her, despite her mature age.

R v Downes (1875) 13 Cox CC 111

Facts: The defendant (D) was a member of the sect known as the "Peculiar People" who believed that all resort to medical aid - as opposed to spiritual aid - to treat illness was sinful. Thus, D failed to call a doctor for his sick child and instead relied on the power of prayer.

Held: It was held that there was a duty to act where there is a close family relationship. He was convicted of manslaughter.

Bramwell B: “the statute imposes an absolute duty upon parents, whatever their conscientious scruples may be. The prisoner, therefore, wilfully - not maliciously, but intentionally - disobeyed the law, and death ensued in consequence. It is, therefore, manslaughter.”

DPP v Santana-Bermudez (2003) EWHC 2908

Facts: In this case a police woman, before searching the Defendant’s pockets, asked him if he had any needles or other sharp objects on him. This D said ‘no’, but when the police officer put her hands in his pockets she was injured by a needle which caused bleeding.

Held: The Divisional Court held that D’s failure to tell her of the needle could amount to the actus reus for the purposes of an assault causing actual bodily harm (ABH).

R v Dytham [1979] QB 722 (Court of Appeal)

Facts: The defendant (D) was a police officer. He stood by whilst a bouncer kicked a man to death. D then left without calling for assistance or summoning an ambulance. D was convicted - at first instance - of the common law offence of misconduct in a public office. D took the case to the Court of Appeal, arguing that the offence of ‘misconduct in a public office’ could not be committed by an omission as it specifically requires ‘misconduct’.

Held: The court held that the offence of ‘misconduct in a public offence’ can be committed by an omission. Therefore, D’s conviction was upheld.

Fagan v Metropolitan Police Commissioner [1969] 1 QB 439

Facts: The defendant (D) was directed by PC Morris to park his car. D accidentally drove his car on the policeman’s foot. The PC let him know what he had done and asked him to move off his foot. D then refused to move off the PC’s foot. D argued at the time of the actus reus, the driving onto the foot, he lacked the mens rea of any offence since it was purely accidental. When he formed the mens rea, he lacked the actus reus as he did nothing (i.e. he did not get off the policeman’s foot).

Held: The court said that for an assault to have been committed some intentional act must have been performed; a mere omission to act cannot amount to an assault. From this perspective it would certainly seem Fagan isn’t guilty; he merely omitted to move the car. However, the court upheld the conviction of assault, stating that there was a continuing act.

In other words, for an assault to be committed “both the elements of actus reus and ns rea must be present at the same time” (James J). At first glance it would appear the actus reus and mens rea are not present at the same time, and therefore the D is innocent. However, as the actus reus may consist of an ongoing course of conduct, it was possible to say the actus reus and ns rea were present at the same time: in other words, when the PC told D he was on his foot D developed the ns rea and, when he refused to move, the actus reus was continuing, meaning both the ns rea and actus reus were present, making D criminally liable.

R v Firth (1990) 1 Med LR 411 (Court of Appeal)

Facts: The defendant (D) was a consultant gynaecologist who omitted to inform a hospital that certain patients referred by him for treatment were private patients. Had the hospital known this, either he or the patients would have been charged for the services.

Held: It was held that D had evaded a liability by deception (Theft Act 1978, s.2). In other words, as D omitted to give relevant information to the hospital, with the result that his patients/himself were not charged for the tests, he was guilty of an offence.

Frenchay NHS Trust v S [1993] 2 ALL ER 403 (Court of Appeal)

Facts: The Defendant (D) in this case was the hospital. S was a 24 year old in a Persistant Vegetative State following a drug overdose. At some stage the S’s feeding tube became detached and the consultant recommended they do nothing about it.

Held: D was not guilty. There was no reason to question the conclusion of the consultant in this situation; it was in the patient's best interest to allow S to die by not taking surgical action to replace the tube (an omission).

R v Gibbins & Proctor (1918) 13 Cr App Rep 134

Facts: The defendant (D) - and his common law wife - failed to feed D’s 7 year-old child. The child subsequently died of starvation

Held: D was found guilty of murder: Where there is the duty to act, failure to do so can lead to liability - even for murder - if the necessary mens rea is present. Whilst it was widely accepted that the father (D) was obligated to look after his own child, the man's common law partner was also considered liable because, although the child was not her own, she had received money for food from the man (which could have been used to feed the child). The courts regarded the parents’ duty towards a young child as so self-evident as not to require analysis or authority.

R v Instan [1893] 1 QB 450

Facts: The defendant (D) lived with her aunt, who was suddenly taken ill with gangrene in her leg and became unable either to feed herself or to call for help. D did not give her any food, nor did she call for medical help, even though she remained in the house and continued to eat her aunt's food. Eventually the aunt died.

Held: D was found guilty of manslaughter, on the basis that she had accepted her aunt's money in order to make payment concerning the food items, yet was not entitled to "apply it all for her own use". This generated a duty of care from D towards the aunt. The intentional neglect of the aunt was consequently a crime. Lord Coleridge CJ wrote that despite the lack of statute or precedent, it would be "a slur on justice" were D’s behaviour to go unpunished.

Kaitamaki v The Queen [1984] Privy Council (New Zealand)

Facts: The defendant (D) broke into a young woman's flat and twice raped her. D claimed that the woman consented or he honestly believed that she was consenting. On the second occasion after he had penetrated her he became aware that she was not consenting but he did not desist from intercourse (an omission to withdraw).

Held: D was guilty. Sexual intercourse was complete upon penetration in the sense that it had come into existence, it was a continuing act only ending with withdrawal; that since rape is defined as "having" intercourse without consent a man was guilty of rape within the section if he continued intercourse after he realised that the woman was no longer consenting.

R v Khan [1998] Crim LR 830 (Court of Appeal)

Facts: The two defendants (DD) sold heroin to a 15 year-old girl at their flat. This was the first time she had used heroin and she used twice the amount generally used by an experienced user. She took the heroin in the presence of the appellants. She fell into a coma and the appellants left the flat leaving the girl alone when it was clear that she required medical assistance. They returned to the flat the following day and found her dead. Medical evidence was such that if the girl had received medical assistance she would not have died. They were convicted of gross negligence manslaughter at first instant. They then appealed contending that a drug dealer does not owe a duty of care to summon medical assistance to his client.

Held: The appeal was allowed and the convictions were quashed. Extending the duty of a drug dealer to summon medical assistance for a person whom he supplied heroin and who subsequently died would be too wide an extension; they owed no duty to help the girl.

R v Lowe [1973] QB 702 (Court of Appeal)

Facts: The defendant (D), a man of low intelligence, was alleged to have neglected his baby daughter by failing to summon medical assistance when she became ill. The child died some 10 days later of dehydration and gross emaciation (i.e. the state of being abnormally thin or weak). The trial judge directed the jury that if they found him guilty of the offence of neglect they must also find him guilty of manslaughter on the grounds that neglect was an unlawful act (i.e. neglect that results in death would be sufficient for a finding of unlawful act manslaughter). The jury subsequently convicted him of both neglect and manslaughter. D appealed to the Court of

Held: The appeal was allowed. For constructive manslaughter there must be an unlawful 'act’; the offence could not be committed by an omission.

The outcome of this case has been criticised as there seems to be little logical basis for this conclusion.

R v Miller [1983] 2 AC 161 (House of Lords)

Facts: The defendant (D) had been out drinking for the evening. He went back to the house he had been staying in and fell asleep on a mattress with a lighted cigarette in his hand. He awoke and saw that the cigarette had started a small fire. Upon seeing the fire, he then got up and went to another room and went back to sleep. The fire subsequently flared up and spread.

Held: D was convicted of arson; not for starting the fire but for failing to do anything about it (i.e. and omission). Lord Diplock: "I see no rational ground for excluding from conduct capable of giving rise to criminal liability, conduct which consists of failing to take measures that lie within one's power to counteract a danger that one has oneself created, if at the time of such conduct one's state of mind is such as constitutes a necessary ingredient of the offence. I venture to think that the habit of lawyers to talk of "actus reus," suggestive as it is of action rather than inaction, is responsible for any erroneous notion that failure to act cannot give rise to criminal liability in English law."

R v Pitchley [1973] 57 Cr App R 30 (Court of Appeal)

Facts: The defendan (D) innocently received money from his son. D was to put this money into his bank account for safe keeping. He later discovered that his son had stolen the money, but did nothing about it for four days.

Held: The fact that D did nothing about it for four days amounted to handling by "dishonestly undertaking the retention of the property by or for the benefit of another”. Thus, he was guilty for omitting to report his son to the police.

R v Pittwood [1902] TLR 37

Facts: The defendant (D) was employed by a railway company to man the gate at a level crossing. The defendant lifted the gate to allow a cart to pass and then went off to lunch failing to put it back down. A train later collided with a horse and cart killing the train driver.

Held: D was guilty of gross negligence manslaughter. D had a contractual duty to shut the gate (owed to his employers rather than to the public at large), but it was enough that his negligent failure to act could lead to conviction.

Re B (Adult: refusal of medical treatment) [2002] 2 All ER 449

Facts: The Defendant (D) was the hospital caring for Ms B. Mrs B was paralysed, but was able to move her head and speak. She wanted her artificial ventilation switched off, knowing this would almost certainly result in her death. The clinicians treating her re unwilling to stop her treatment in light of the inevitable consequences of the action. Mrs B, therefore, applied to the High Court for a declaration that she had the requisite capacity to refuse treatment.

Held: In an overwhelming respect for her autonomy, the court held she was competent and any continued treatment would be unlawful. There had been a question as to her competency but Dame Butler-Sloss indicated that the medical profession should seek to avoid overt paternalism in a severely disabled person → if Mrs B was competent, which she was, then she had the same rights as everyone else, including the right to be taken off ventilation.

Re B (A Minor) (Wardship: medical treatment) [1981] 1 WLR 1421 (CA)

Facts: The child was born with Down’s Syndrome and an intestinal blockage. She needed the obstruction to be relieved if she was to survive. If the operation were performed, the child might die within a few months but it was probable that her life expectancy would be 20-30 years. Her parents, having decided that it would be kinder to allow her to die rather than live as a physically and mentally disabled person, refused to consent to the operation.

Held: The question for the court was whether it was in the best interests of the child that she should have the operation and not whether the wishes of the parents should be respected. It was held that the best interests of the child where that she should have an operation, not whether the parents' wishes should be respected; the child could expect the normal life span of someone with Down’s Syndrome.

Re J [1991] (Court of Appeal)

Facts: J was born prematurely and suffered brain damage. At best he was likely to have a considerably shortened life expectancy, without sight, speech or hearing. His only likely normal reaction was that of pain.

Held: Although there is a strong presumption in favour of preserving J’s life, there is no principle that preserving J’s life should be more important than his best interest. Thus, the court might, in appropriate circumstances, withhold consent to life-saving treatment.

Re T (Adult: refusal of treatment) [1993]

Facts: The patient - who was pregnant - had been involved in a car accident and during hospital treatment required a blood transfusion. When only her mother (a Jehovah's Witness) was with her, she stated spontaneously to a nurse that she did not want a blood transfusion. Later a decision was taken to deliver the child by Caesarean section. She signed a form which was neither read nor explained to her, signifying her refusal of consent to blood transfusions. Her child was stillborn and her condition deteriorated. A blood transfusion was needed but not given because of her expressed wishes.

Her father, supported by her boyfriend, applied to the court to allow a transfusion in the absence of her consent. The judge, decided that because of her condition and the effect of the medication she had not been fully rational when she signed the form. He allowed the father's application; thus, she was given the blood transfusion she needed.

Held: Although an adult patient was entitled to refuse consent to treatment irrespective of the wisdom of his decision, for such a refusal to be effective his doctors had to be satisfied that at the time of his refusal his capacity to decide had not been diminished by illness or medication or by false assumptions or misinformation. Where a patient’s refusal is not effective the doctors are free to treat him/her in accordance with their clinical judgment of his/her best interests.

Re W (A Minor) (Medical treatment: court's jurisdiction) [1993] Fam 64 (CA)

Facts: W was in the care of the local authority (LA) following the death of her parents. She developed symptoms of anorexia nervosa. Contrary to her wishes and the opinion of the consultant attending her, the LA sought the court's permission to transfer her to a unit specialising in eating disorders and treatment. Being 16, W claimed she had the same right as an adult to refuse medical treatment and claimed the court could not override her decision.

Held: A minor who had attained the age of 16 had an absolute right to give consent (or not) to medical treatment, as effectively as if he were an adult. A minor of any age who had sufficient maturity might consent to - or refuse - treatment but he could not overrule consent given by the court. However, here, having regard to the nature of W's illness and to the serious deterioration in her condition, her best interests required the court to direct her immediate transfer to and treatment at the new unit without her consent.

Rice v Connolly [1966] 2 QB 414

Facts: The Defendant (D) was seen in the early hours of the morning behaving suspiciously in an area where burglaries had occurred. He refused to say where he was going or where he had come from. He refused to give his full name and address. He refused to accompany the police to a police box for identification purposes, saying, "If you want me, you will have to arrest me". He was arrested and charged with wilfully obstructing the police contrary to s. 51 (3) of the Police Act 1964.

Held: D was not guilty of any offence. Although every citizen had a moral or social duty to assist the police, there was no legal duty. D was entitled to decline to answer the questions and to accompany the police officer to the police box.

R v Shepherd (1862) 169 ER 1340

Facts: This case involved a mother and her expecting daughter. The daughter who was 18 at the time went into labour in the house of her step father during his absence. The mother failed to provide a midwife for her daughter and as a consequence the girl died.

Held: D was not guilty of manslaughter. She was not legally bound to procure the aid of a midwife, and she could not be convicted of manslaughter for not doing so, there being no duty toward a daughter aged 18. Erle, CJ: " Here the girl was beyond the age of childhood, and was entirely emancipated."

R v Smith (1826) 2 C&P 449

Facts: The defendant (D) had an helpless idiot brother, who was bed-ridden in his house, and kept him in a dark room, without sufficient warmth or clothing.

Held: This will not be an assault or an imprisonment; D was not guilty by omission. There is no legal obligation on one brother to maintain another, so as to make the omission indictable.

R v Smith [1979] (Crown Court)

Facts: The Defendant (D) was the husband of a woman who gave birth to a stillborn child at home. D wanted to get medical attention for her but she would not allow this. Three days later, when she became unconscious, D called the doctor, who did not arrive until after she died. The medical evidence was such that if a doctor had been summoned earlier the woman might not have died.

Held: At the trial the judge instructed the jury that D owed a duty to his wife. The jury could not agree upon the charge of manslaughter and was discharged from giving a verdict; in other words, the case collapsed for failure of the jury to decide.

R v Speck [1977] 2 ALL ER 859 (Court of Appeal)

Facts: The defendant (D) was sitting on a chair when an eight-year-old girl put her hand on his penis outside his trousers for about five minutes. The pressure of the child's hand caused him to have an erection. He remained inactive throughout and did nothing to encourage the child, although he did not remove her hand.

Held: D was found guilty of gross indecency. Although this may be seen as an omission by the man (i.e. he omitted to move her hand), the court held it to be - in effect - an act by the man.

R v Stone and Dobinson (1977) 1 QB 354 (Court of Appeal)

Facts: Ted Stone was 67, totally blind, partially deaf had no appreciable sense of smell and was of low intelligence. He lived with his housekeeper and mistress of 8 years, Gwendolyn Dobinson aged 43 who was described as ineffectual and inadequate. Ted's sister Fanny came to live with them. She had previously lived with another sister but had fallen out with her. She had mental problems and was suffering from anorexia nervosa. Ted and Gwendolyn took her in and agreed to look after her. However, Fanny's condition deteriorated and she was found dead in her bed in appalling conditions.

Held: Stone and Dobinson were found liable for her death as they had assumed a responsibility to her by taking her in. They failed to look after her and ensure she got the medical help she needed.

R v Yuthiwattana (1984) 16 HLR 49 (Court of Appeal)

Facts: The defendant (D), a landlady, refused to replace a missing door key for the occupier of a bed-sitting room in her house. He had to depend for the rest of his time there on someone being in the premises to let him in.

Held: D’s failure to replace a lost key was found to be an ‘act’ of harassment against a tenant, and was therefore guilty of “interfering with the peace and comfort” of the tenant (i.e. an act contrary to s1 of the Protection From Eviction Act 1977). C.f. R v Ahmad (1986).