In UK law, there is generally no criminal liability for a failure to
act. The exception to this principle is in situations where the
defendant had a legal duty to take positive action, but failed in this
There are five situations where a positive duty to act is generally
held to exist.
1. Where a duty arises from a statute.
If it can be shown that the defendant was bound by statute to take
positive action but failed to do so, that defendant will be liable for
their omissions. Take for example, the Children and Young Persons Act
1933. This Act brought into being the offence of wilfully neglecting a
child. As a result, parental failure to provide food or necessary
medical treatment for a child, could result in liability for such an
omission. For leading case law in this area, see
Greener v DPP (1996) The Times, Feb. 15, 1996.
In Greener, the defendant was found to be liable for his omission to
restrain a dog which but a child, due to a positive duty imposed on
him by Section 3(3) of the Dangerous Dogs Act 1991.
2. Where a duty arises from a contract.
If a person is under a positive duty to act, which arises from
contractual obligations, a failure to perform that act could give rise
to criminal liability.
See: R v Pittwood (1902) 19 TLR 37.
In the above case, a gatekeeper at a railway crossing, went to lunch
leaving the gate open. Someone crossed the track during his absence
and was killed by a train. Pittwood was held to be contractually
obliged to close the gate when a train approached and was found guilty
3. Duty owed to Family Members.
The common law assumes that family members owe a duty of care to each
other to safeguard each other's welfare. A useful case to look at here
R v Gibbons and Proctor (1918) 13 Cr App Rep 134.
This is a case involving a child being starved to death by cohabitees.
Proctor was in charge of the child, so Gibbons made out he had no
knowledge of the child's condition. But the court convicted him on the
grounds that he lived in the house, was the father of the child and
should have been aware of her plight, and had therefore grossly
The main proviso to note here is that many common law duties are
extremely difficult to delimit. Therefore, determining where liability
arises can be problematic for the courts.
There has been a shift in recent years, towards the courts identifying
the presence of a common law duty of care, where there exists a
relationship of reliance between the defendant and their victim. For
example, if a person undertakes voluntary responsibility for another,
the law presumes that they have also undertaken a positive duty to
provide for the welfare of their charge. As a result, the person
assuming such responsibility may be liable for any omissions which
prove fatal. Leading case law in this area includes:
R v Stone and Dobinson  2 All ER 341.
In the above case, the defendants failed to provide care and medical
assistance for a sick relative, which led to the relative's death.
They were held liable for these omissions.
5. Duty due to defendant's prior conduct.
If someone unwittingly commits an act that causes harm but later
becomes aware of the danger, they are under a duty to take reasonable
action to prevent that harm - leading case law here is:
R v Miller  1 All ER 978.
In Miller, the defendant [a squatter in a house] was smoking in bed
and fell asleep, accidentally setting his bed alight. Instead of
taking action when he awoke, he shifted to another room and let the
fire cause extensive damage. The House of Lords found him liable for
the damage because once he'd woken up, he was under a positive duty to
try and limit the damage.
An excellent article on this area is available online at
You may also wish to check out
I hope this information helps.