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.
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.
Lush LJ held that whilst an omission could constitute an act of murder, because there was no statutory duty for the railway to provide a watchman, there could not be any criminal liability.
In this case, a gatekeeper for a railway service in Somerset negligently forgot to close a gate – allowing access by vehicles (horse-drawn) over a level crossing – whilst gone to lunch.
It is still likely however that following the more recent case of R v Stone & Dobinson,[20] a conviction for manslaughter or murder would arise, where the neglect or lack of care by a parent is either intentional, or grossly negligent.
[21] A recent case affirming a duty to a spouse is R v Hood,[22] where the Court of Appeal upheld a husband's conviction of gross negligence manslaughter, after he failed to summon medical attention for his wife – a sufferer of osteoperosis – after she fell and broke a number of bones.
[26] As demonstrated by 'R v Pittwood (1902),[27] where a gatekeeper was found criminally liable for failing to perform his duties correctly, this principle may be extended to instances where the injured individual is a third party.
[28] The principles outlined by Lord Diplock in R v Miller show clearly that there is a duty for risk creators to take any measure that is reasonably within their power, and that a failure to do so will often result in criminal liability.
Where in Fagan v Metropolitan Police Commissioner[30] a man unintentionally drove onto a policeman's foot, it was his failure to move after he became aware of his conduct that formed the basis for his conviction.