This article is written by Harmanpreet Kaur of Amity University, Kolkata. The purpose of this article is to provide an overview of the laws of omission.

Introduction

Every legal concept focuses on the things that an individual should not do, as well as the things that he can and should do. The law is composed of hypothetical patterns of conduct or a negative act. First, a person should not commit an act to avoid any sort of punishment; second, he must undertake an act to attain certain specified purposes; and third, he must adhere to specific conduct or behaviour to avoid any type of penalty. When it comes to subjective responsibility, crime typically involves two basic features: action and injury. The attributes of action and injury are present in the paradigmatic instance, in which the act of firing a gun causes a person’s death as a result of the damage.

The criminal law has special provisions that allow for culpability wherein one or both the characteristics are missing. The laws that govern omission liability allow for punishment even if the offender does not do an act. The issue of liability for omissions involves several important concerns in criminal law.

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It is important to describe the situation of an omission liability, the term crime needs to be understood. The article will provide a conceptual understanding of the omission and the liabilities arising out of it.

Understanding the concept of omission 

To understand the concept of omission, it is important to first conceptualize the meaning of crime. A crime may be defined as the commission of acts prohibited by penal laws, and criminals as persons who commit such acts. If a crime is committed, it is subject to punishment under the law. The prosecution will have to show the existence and coincidence of the actus reus, or guilty act, and the mens rea, or guilty mentality, to get a conviction. 

The legal definition of the term omission defines that ‘a failure to perform an act agreed to, where there is a duty to an individual or the public to act or is required by the law. Such an omission may give rise to a lawsuit in the same way as a negligent and improper act’. 

On the other hand, it may be referred to as a failure to act when an obligation has been assigned to it and it has not been carried out in compliance with the law. Omission liability is a liability that is imposed for a mere failure to act. In the case of omission liability, the offender does not have the necessary liability for his failure to act. The Indian Penal Code, 1860 specifically does not define the term ‘omission’. Section 33 of the Indian Penal Code defines the term act and omission. The words have not been defined especially, the Code states that as a single act, the act implies a series of acts. The word omission implies the series of omissions as a single omission. The American Model Law has strictly forbidden a person from committing an omission and has enforced omission liability. An attempt for omission liability occurs when a person does any act or omission that would constitute a substantial step in the course of action intended to lead to his commission of a crime, according to the clause.

Omission – an important constituent of actus reus 

Actus reus generally involves three basic components, i.e. a voluntary act or failure to perform an act that causes social harm under a criminal statute. So, to constitute a crime in common law there must always be a result brought about by human conduct or a physical event that the law prohibits. For example, killing a man and raping a woman, etc. It has been a long-term custom that the term actus reus has been defined to denote a deed that has been prohibited. It’s important to distinguish between an event that occurs as a result of human conduct and the line of conduct that generated the occurrence.

No one can continue a course of action without causing a sequence of consequences, any of which may or may not be considered a criminal offence. Thus, a man who intends to murder anyone may lawfully purchase a revolver for the purpose or he may secretly take and carry away the revolver without the consent of the owner thus performing actus reus of theft.

In criminal law, an omission is an actus reus and will only result in a liability if the law imposes a duty to act and the defendant fails to fulfil that obligation. An omission is fundamental to constitute a crime in the common law. The second type of Actus Reus is an omission, which is defined as a voluntary decision to refrain from doing anything that causes harm or leads to another unlawful conduct. Omission can usually be characterised as the purposeful, reckless or negligent absence of action. 

Offences for omission

The criminal law penalizes the omissions. There are instances where the liability for omission arises. The three-fold classification of omission offences might be used in these regards. These are:

Pure omission offences

Pure omission offences are the kind of offences in which the accused does not commit an act of any kind. These kinds of offences are mostly statutory and the duties imposed upon them are generally of a public nature. Some of the examples that can be listed out for these kinds of offences are the duty to pay taxes as ordered by the government, or duties imposed on the identified categories of persons like government officers and public constables or the duty of the parents when neglected their child’s status and the offence of refusing to assist a public officer in the maintenance of public peace and order. 

Hybrid offences

The hybrid offences can be categorized as the kind of offences that inhibit the elements of both the act and the omission. In these cases, the law punishes the person for his omissions rather than his acts, and so penalises the omissions.

These kinds of offences are not statutory and so the responsibility is upon the legislature and not the courts to create duties to act. Some examples of these offences are driving without insurance or operating machinery without safety measures and selling alcohol without a license.  

Act-defined omissions

The act-defined omissions can be categorized as the kind of offences that are defined in terms of actions but might result in a liability if the prohibited action is attributed to an omission. Offences in these categories pose the most difficulties and it’s the decision of the courts and the defined judicial interpretations in determining the offences that might be committed by an omission.

In the case of R v. Mavji (1987), it was held that the offence of committing fraud does not require a positive act on the part of the accused and any action that results in the revenue being stolen from the government is sufficient for the liability of omission.

In the case of R v. Dytham (1979), the police officer was held guilty of willful misconduct as he as a public officer did not confine to his duties when the mob brutally attacked the person,

The simple omission by the person is sufficient to constitute the offence. Other liabilities for omissions include contempt of court and criminal nuisance. Some of the offences are based on traditional approaches and some are outlined based on the breach of the well recognized legal duty. The rationale of such an act or omission is the failure of the accused to perform a duty. The identification and implementation of the duty to act by the criminal law is a fundamental attribute to these judgments.

The range of liability of omissions

Earlier the omission liabilities were only confined to the offences of murder and culpable homicide. However, as time passed, alternative perspectives emerged, such as what if the victim’s injuries were not fatal, and could the accused be convicted of a lesser offence, such as failure to perform a duty to act or omission. Two approaches must be understood to make this noticeable.

  • The traditional approach states that the liability for omission should only be confined to the fatal offences i.e., in which there has been a physical injury to the victim. Such offences include murder and culpable homicide.
  • The expansionist approach is the approach that is based upon moral assumptions, i.e. the acts and omissions which cause suffering and are morally offensive that would be subjected to punishment. The approach states that the liability of omissions should apply to all offences of omission.

The range for liability of omissions is not based upon any of the approaches, but the decisions are implied upon the judiciary and judicial interpretations. The judiciary has from time and again decided as to how the liability of omissions should be determined and not upon any of the mentioned approaches.

Requirements for the performance of duty 

The liability for the omission is permitted only when the specific duty to act is imposed by law. The duty must be a legal and a moral one to form the basis for liability. The violation of any legal duty is enough to constitute omission for the offence’s conduct requirement.  A duty can arise from the following kinds of sources:

Duty based upon a relationship

There are circumstances in which a certain kind of a legal relationship arises between the accused and the victim which eventually gives rise to a duty to act. The most commonly listed instances arising out of duty based upon a relationship are the duty of the parents to assist their children, husbands to support their wives, and a master-servant relationship and ship captains to aid their passengers and crew.

Duty of landowner

The landowner must protect those who come upon his land as a tenant or the landholder. He has the responsibility to protect the trespassers, licenses, residents, investors and occupants. In the case of  Rowland v. Christian (1968) the court was moved to abandon the common law distinctions among categories and the court held that the landowner should use his reasonable care to protect anyone on his premises.

Duty arising from a contract

A duty is imposed upon the person under the contractual obligation to the victim or a third party. For instance, the doctor and the nurse have a duty to care for their patients. If there is any kind of a failure to perform any kind of a contractual obligation then it would form the basis for the omission liability. If the contract is public then the duty is owed to the members of the general public, who are not even parties to the contract.

Duty based upon the statute

There are instances where a particular statute or a piece of legislation imposes a duty to assist certain categories of persons. It is usually stated that the failure to act in a prescribed manner is considered a crime or an offence. For instance, in the Indian Penal Code,1860 the public servant has to prevent any kind of an offence that disturbs public peace and security. 

Duty arising from the assumption of a responsibility 

This category outlines the responsibilities that have arisen and been demonstrated by judicial creativity in various circumstances as the court deems appropriate. In many cases where neither the relationship between the parties nor a legal instrument such as a statute or the contract, then the courts have actively stated where the accused owed the duty to the victim, based on the former’s responsibility to care for the latter. This concept of assumption by the courts for omission liability has been listed in various circumstances like:

  • Where the parties have been residing in the same household.
  • When the parties are related through blood, marriage, or adoption, formal or informal.
  • Where there was a beneficiary duty i.e, the person who usually was unable to care for himself because of his illness, old age, or mental illness.

Duty arose where the accused has created danger

There are instances where the accused can be held for the liability of omissions where he has caused some danger. So it would be the duty of the accused to remove the danger that was caused intentionally or intentionally. 

Case laws on the liability for omission

Fagan v. Metropolitan Police Commissioner (1969)

It is a leading case that confirms the need for occurrences of actus reus and mens rea in most offences related to criminal law. In this case, the appellant unintentionally drove upon a police constable’s foot and, even after informing about the incident, refused to move his car. The divisional court affirmed his conviction for causing harm to the police constable in the course of his duties on the basis that he was guilty of a continuous act that merged with mens rea when he became aware of the officer’s terrible situation.

R v. Gibbins and Proctor (1918)

In this case, a man and the woman were living together with the daughter of the man. They failed to provide sufficient means of life to the child i.e, she was not provided with the food and she died. The judge cited and held them charging with the offence of murder, as they failed to perform their duties, which resulted in grievous bodily harm to the child and resultantly she died. The case has been used as an example of an omission case.

R v. Stone and Dobinson (1977)

In this case, the sister of Dobinson, Fanny lived with him and his girlfriend. Fanny was mentally ill and became very anxious about gaining weight and thereby stopped eating properly and became bed-ridden. The defendants were aware that she was ill but did not make enthusiastic and successful attempts to give her proper medical care, and she died. The couple’s efforts were found inadequate. The Court of Appeals held that since they had accepted the responsibility of Fanny, it was their responsibility to discharge their duties and provide her with proper medical care when she became bed-ridden. The couple was held liable for the charge of manslaughter. 

R v. Miller (1982)

In this case, the defendant, even being aware of the fire in a room because of his reckless behaviour, did not inform anyone about the dangerous situation, and eventually, the whole house caught fire causing the loss of eight hundred dollars. The court held that the defendant was responsible for having created a dangerous situation as he had a duty to inform the authorities about the situation and take action to resolve it and he was therefore liable for the act or omission. The court held him liable for the offence of arson and stated that the breaking out of the fire was his fault and was considered a failure to act.

R v. Pittwood (1902)

In this case, the gatekeeper of a railway crossing was prescribed with the duty to open the gates whenever the trains were no on the tracks. Once, the gatekeeper opened the gate to allow the cars to pass and forgot to shut it down and went off for lunch. As a result, a hay cart crossed the line and was hit by the train, which caused the death of the driver. The gatekeeper was held liable for the offence of manslaughter. It has been thus referred to as the case of omission in English criminal law. 

Conclusion 

Thus, the criminal liability for omissions arises when there is a failure to perform any kind of duty. The existing legislation needs to be amended and the importance should be posed to the law on omissions, by enlisting the general duties upon individuals to make them aware of the crime that can be committed. Ideally, duties should be created, and omissions liability focused on the conduct of the crimes. A legislative measure to anticipate judicial activism in the omission liability is to be preferred.

References

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