The omissions of individuals are generally not criminalised in English criminal law, save in many instances of a taking on of a duty of care, having contractual responsibility or clearly negligent creation of a hazard. Many comparator jurisdictions put a general statutory duty on strangers to rescue[1] – this is not so in English law. Defenders and reasoners of the position regard it as wrong for the criminal law to punish people in many circumstances for committing no physical act, which it is argued would be an infringement on human autonomy.[2] Academics arguing for reform argue that a social responsibility to assist others should exist, particularly where there would be no danger to the rescuer.[3]
Liability for omissions has long existed where a pre-existing duty can be established between two parties. For example, where a person accidentally creates a small fire in a flat, they owe a duty to take reasonable steps to extinguish it, or to summon help.[4] A special duty, parental responsibility, exists between parents/guardians and their children, and an omission of these to use best endeavours to save their young child from drowning would result in criminal liability, as it is deemed such a person (and those in loco parentis) should ensure the wellbeing of the child.[5] Other duties may be inferred from contractual obligations. An illustration of this tested in a court of precedent is the liability of any person employed to ensure people do not cross a level crossing over an active track, where abandoning such a post.[6]
^For example, the French Penal Code sets out a duty to rescue where there is no risk to the possible rescuer, in Section 63.
^Ashworth, p. 427
^Ashworth, p. 428
^As demonstrated in the case of R v Miller [1983] 2 WLR 539.
^Mead, p. 164
^R v Pittwood
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