Can you be convicted of an attempted crime by making an omission?

Question

The position regarding omissions for actual offences is generally relatively straightforward. In the United Kingdom, the legal position is that murder can be committed by omission in exceptional circumstances.

For example, in the case of R v Gibbins and Proctor (1918), the legal guardians of a child who starved to death were convicted of murder by making an omission as they had an established special relationship to the child (and therefore a legal duty of care).

However, the position on attempted offences seems much less clear to me.

If, for example, the facts were the same as in the above case, but the child had been saved before dying. Would it be possible for this omission to constitute attempted murder?

I am not aware of any case law on this issue so it isn't clear to me what the courts' position would be in a situation like the above and on omissions more generally when it comes to attempted offences.

This is not a question about the general law on when omissions can lead to criminal liability. I am interested in answers that specifically explore the law related to attempts and the scope of the exceptions that allow criminal liability to arise out of omissions. This will likely have to make at least some reference to the Criminal Attempts Act 1981 alongside either case law or academic commentary to answer the question.

Answer 1

The Law Commission considered this issue in a 2009 report (No. 318) on "Conspiracy and Attempts", at paragraphs 8.142 through 8.151. In summary,

• The Criminal Attempts Act 1981 says that in order to be guilty of attempted murder, a defendant would have to do some act which is more than merely preparatory to the commission of the offence.
• It is for the courts to consider whether an "act" can include an omission. As of 2009 this had not arisen. Cross-checking with the seventeenth edition of Smith, Hogan and Ormerod's Criminal Law (OUP), at 11.2.2.4, the same is true as of 2024.
• The Commission thought it conceivable or probable that the courts would not read the Act so as to cover omissions, citing R v Lowe [1974] QB 702 where the Court of Appeal found against there being a possibility of manslaughter by omission. (However, manslaughter and murder raise different issues of intent in general; I'd be reluctant to read across from one to another.)
• They suggested on the basis of consultation that the CAA should be amended to cover some cases of attempted murder by omission, but were reluctant to extend that to crimes in general, or even all murders, as that would be a large change in the legal framework. Their proposal was limited to reading "act" as including "failure to act", for murder only, and where the defendant was under a legal duty to carry out the omitted act.

The proposal was not taken forward at the time and the CAA has not been amended.

The authors of Smith, Hogan and Ormerod suggest that it would require "bold judicial interpretation" to read omission into the Act, although they consider it possible if the court gave weight to the Parliamentary debate on the bill. The scope for how far courts ought to delve into Hansard has swung back and forth since Pepper v Hart [1992] UKHL 3 made it an option at all. A court would first have to be convinced that the words of the statute were ambiguous, and secondly would have to find a very clear expression of Parliamentary intent given that this is in the context of creating criminal liability.

The circumstances of a particular attempted murder by omission might be hard to come by, partially explaining why a test case hasn't yet arisen. If a defendant has done some overt acts as part of their attempt, then any omissions that were also contributory would be less important. Smith, Hogan and Ormerod discuss the example of R v Nevard [2006] EWCA Crim 2896 where the defendant attacked his wife with an axe; she called the emergency services and when they phoned back, he told them that it had been a prank call. At first instance, the jury asked the judge to clarify whether interfering with an emergency service response could constitute attempted murder. The Court of Appeal's decision was that in itself it could not, though the textbook authors are critical of this determination given that the husband had in fact carried out an overt act rather than simply failing to call for help himself.

Further, both they and the Law Commission raise that in relation to cases like Gibbins, there are additional offences which could be charged. A prosecutor might well prefer these to a more uncertain course of charging attempted murder, and possibly setting themselves up for a lengthy series of appeals. For example, wilful neglect of a child carries a 14-year maximum sentence and is available even when the "suffering or injury to health [...] was obviated by the action of another person". That is exactly the situation of this question where the child survives. There is also the more recent offence of allowing a child to suffer serious physical harm (since 2012) which undoubtedly includes omissions under s.5(6). It is also plausible that a court would take the existence of that offence as evidence that Parliament considered that the CAA didn't already include omissions.

Answer 2

Brief research suggests it is a vexed question, but that "attempting" in general requires a specific intention, not just recklessness.

In the Gibbins and Proctor case, the man and his mistress were found by the jury to have intentionally starved Gibbins' child and thereby intended serious harm to her (not necessarily intending death, but it's sufficient for murder that serious harm is intended). Proctor was said to positively hate the child, and Gibbins was unwilling to challenge Proctor or provide food to the child directly.

The intention to starve was not at issue, the question was whether it was murderous to withhold food from a child in your charge - it was.

The confounding questions of the case were that (a) neglecting to provide food seems like an omission rather than an action, (b) that Proctor was neither Gibbins' wife nor the child's mother, (c) that Gibbins had certainly furnished sufficient resources to Proctor that she could have fed the child, and (d) that Gibbins had never acted to prevent the child being fed by Proctor.

In other words, Gibbins was arguing that he had fulfilled the typical responsible behaviours of a man of a household - not feeding the child personally, but providing the resources to the woman of the household so that the feeding could be done.

And I assume Proctor took the line that, being neither the wife nor the mother, she was not the child's guardian and could not be obligated.

The court effectively found that both Gibbins and Proctor, as adults in the same household and in charge of children, had an obligation to act to make sure the child was fed, and that when they each willed not to act to feed the child, knowing as fully sensible people that the child was starving, they thereby intended harm.

On this logic, intentionally starving a child to within an inch of their lives could well be attempted murder.

But the jury would have to find that there was in fact an intention to starve so as to inflict harm.

Mere recklessness and neglect - as might be typical of parents who are deranged in terms of their ability to direct their own attention, anticipate consequences, or discern environmental conditions - would not be sufficient.

Answer 3

I guess your conflict comes from the Criminal Attempts Act 1981 defining:

If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence.

so in your question the person must do an act and, at the same time, making an omission.

Still, I think it would be possible.

Let's suppose Gibbins and Proctor lived in a farm in the country, and the child fell in a well. Gibbins and Proctor learn that she is there, unable to exit and likely to starve to death, but rather than help her (or at least tell anyone else to rescue her) they left for a transatlantic cruise of several months. We can even consider that, one night, they shared with other guests at the ship that they expected the child to die for being so stupid of falling there.

Now, if the next morning, and completely unexpectedly, someone arrived at their farm and rescued the child, there would be no murder, but I expect it would be an attempted murder.

The act of going on a cruise, omitting their duty of rescuing her would probably be considered as attempted murder by the court.

The scenarios on which such thing could happen seem difficult to met, though.