An Anglican prayer includes the words - ' ...We have left undone those things which we ought to have done; And we have done those things which we ought not to have done ...' - but when, in law, is an individual to be held liable for not doing something? An alternative way
of putting this question is to ask - when is an individual to be held liable for an omission. English law has generally not been unduly eager to impose liability - whether criminal or civil - for omissions but there are exceptions. As a general point, we are all free to mind our own business even if doing so is socially irresponsible or reprehensible. Before imposing liability for omission, the law will look for a DUTY to act in the particular situation.
Criminal Law:
Criminal liability for omission arises in a number of instances.
(1) Statute law may create an offence which seeks to punish omission or failure to do something - e.g. Failure, without reasonable excuse, to provide a specimen of breath, blood or urine - Road Traffic Act 1988 s7(6) or Failure to comply with the indication given by a traffic sign - Road Traffic Act 1988 s.36.
(2) A duty to act may also arise at common law:
Close relationship - The parent who fails to feed his dependant child could be liable for murder or manslaughter depending on whether the parent intended the child to die - R v Gibbins and Proctor (1918) 13 Cr App R 134. It may be that the law extends beyond parent-child relationships so that there is a duty to act to protect any of those who are dependant and reliant on us. However, whilst this would be consistent with the wide view in modern law taken of what constitutes a "family", actual legal authority is somewhat lacking.
Assumption of responsibility - Liability for omission may arise where D takes it upon himself to look after someone who is unable to care for themselves. The old case of R v Instan [1893] 1 QB 450 illustrates this. D lived with her 73 year old aunt who was healthy until shortly before her death. During the last 12 days of her life she had gangrene in her leg which made her helpless. D knew of this condition but did not give her aunt food and did not seek medical help. D was convicted of manslaughter on the basis that she had assumed a duty of care. More recent cases on this include R v Stone and Dobinson [1977] 2 All ER 341; R v Ruffell [2003] EWCA Crim 122 - (see page 29 here).
Doctor-Patient Relationship - In Airedale NHS Trust v Bland [1993] 1 All ER 821, the House of Lords recognised that whilst, in normal circumstances, doctors and medical staff have a duty to act in order to treat and care for their patients, they were not obliged to continue such treatment and care where responsible and competent medical opinion took the view that it was not in the patient's best interests to do so. Hillsborough victim Tony Bland was being artificially fed via nasal tube. The House of Lords granted a declaration that it would be lawful to discontinue the feeding. It is a semantic point whether discontinuing feeding a patient is an omission since it is worth noting that the court here permitted the doctors to take the active step of removing the feeding tube.
Contract - If D is under a contractual duty to act then this may form the basis of liability. The old case of R v Pittwood (1902) 19 TLR 37 illustrates. D was employed by the railway to operate a level crossing. He omitted to shut the gate and V was killed by a train on the crossing. D was convicted of manslaughter. Note here that V was not a party to the contract in question.
Where D creates a dangerous situation - the principal authority for this category is R v Miller [1983] 1 All ER 978, HL. D was a squatter and he fell asleep whilst smoking in his squat. The lit cigarette set fire to a mattress. He woke up to find the mattress smouldering but simply went to another room and resumed his sleep. The house caught fire. The House of Lords held that D was guilty of arson. He had a duty to take steps reasonably available to him to prevent further damage. The principle established by the Miller case was applied in DPP v Santana-Bermudez [2003] EWHC Admin 2908.
Much has been written about criminal liability for omission and the foregoing notes are necessarily brief. A video is available via Youtube which goes into more detail.
The failure to report a felony (or misprision of felony) was an offence in English Law until the Criminal Law Act 1967 abolished the old felony - misdemeanour dichotomy. Misprision of Treason still remains an offence.
Civil Law:
English Law has displayed a similar reluctance to impose liability in tort for omission. As a general rule, there is no duty at common law to prevent persons harming others by their deliberate wrongdoing: Smith v Littlewoods Organisation Ltd [1987] AC 241 and Stovin v Wise [1996] AC 923. However, liability has been established in some situations as in Home Office v Dorset Yacht Co Ltd [1970] AC 1004 where Borstal trainees were working on Brownsea Island in Poole Harbour under the supervision and control of three Borstal officers. During that night seven of them escaped and went aboard a yacht which they found nearby. They set this yacht in motion and collided with the Respondents' yacht which was moored in the vicinity. Then they boarded the Respondents' yacht and much damage was done to this yacht by the collision and some by the subsequent conduct of these trainees. The Respondents sue the Appellants, the Home Office, for the amount of this damage. In holding that there was a duty of care on the part of the Home Office, the House of Lords based the liability on the degree of control that the officers were entitled to exercise over the trainees. Responsibility was to be confined to harm caused in the course of an escape from the Borstal to those in close physical proximity. Further excellent discussion of the law is to be found in Mitchell v Glasgow City Council [2009] UKHL 11.
In Van Colle v Chief Constable of the Hertfordshire Police [2008] UKHL 50; [2008] 3 WLR 593, para 42 Lord Bingham of Cornhill said that the three-fold test laid down by the House of Lords in Caparo Industries plc v Dickman [1990] 2 AC 605 , by which it must be shown that harm to B was a reasonably foreseeable consequence of what A did or failed to do, that the relationship was one of sufficient proximity, and that in all the circumstances it is fair, just and reasonable to impose a duty of care towards B, was currently the most favoured test of liability.
Whether a body such as the Liberal Democrat Party (or its officers) could be successfully sued in negligence for the activities of a party member and Member of Parliament such as Cyril Smith is therefore not an easy question. The general reluctance of the law to find liability in negligence for failure to act to prevent harm to others seems to stand squarely in the way of a successful action. However, a possible argument might be that, in modern times, the law should not be too reluctant to impose liability if it could be shown that senior party officials knew of the allegations against Smith and that they had rights to discipline or control party members but failed to so act. It would be argued that Smith's position gave him access to vulnerable boys - see Telegraph 13th September 2013. Knowledge within the party of Smith's alleged activities is denied - see Clegg defends party in Smith furore - Belfast Telegraph 21st April. However that may be, we know that criminal charges were not preferred against Smith in the 1970s.
Note: for the purposes of this post I have left aside the question of the legal status of the Liberal Democrats and the related question of who (if anyone) could actually be sued. The constitution of the Liberal Democrats is available via their website (here). The party was formed on 3rd March 1988 and is the successor to the former Liberal Party and the Social Democratic Party. Cyril Smith was MP for Rochdale from 1972 to 1992.
The law of unincorporated associations is the subject of a book by Nicholas Stewart QC, Natalie Campbell and Simon Baughen - The Law of Unincorporated Associations
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