## Facts

- George Smith was a developmentally disabled adult who lived in a house with his siblings, William, Thomas, and Sarah Smith.
- Their father died leaving a will that required William, Thomas, and Sarah to pay George a specified yearly sum, but did not expressly require them to provide day-to-day physical care.
- A magistrate visited the home and found George kept in very poor conditions, including a badly maintained room that lacked proper heating.
- George’s physical condition was alarming; his limbs were described as being in a contracted state, consistent with prolonged confinement and neglect.
- Following official attention, George was removed from the house and taken to an institution for care.
- The Crown indicted William, Thomas, and Sarah Smith on charges including assault, false imprisonment, and unlawful neglect arising out of their treatment of George.
- The defendants pleaded not guilty and argued, in substance, that any wrongdoing alleged against them was nonfeasance (a failure to act) and that they were under no legal duty that would make the omission criminal.

## Issues

1. Whether William, Thomas, and Sarah Smith were under a legally recognized duty to provide physical care for their adult brother George, such that a failure to provide that care could amount to an indictable offence.
2. Whether “mere omission” or nonfeasance, without proof of a legal duty to act, can support criminal liability for offences such as assault, false imprisonment, or unlawful neglect on these facts.
3. Whether the father’s will—imposing an obligation to pay George a yearly sum—created a duty of personal care sufficient to ground criminal liability for neglect.

## Decision

- The court ruled that there is no general criminal-law duty to act to prevent harm to another.
- The court held that an omission, without a legal duty to act, does not create an indictable offence.
- On these facts, the sibling relationship, together with the will’s requirement to pay money (without imposing a caregiving obligation), was not treated as creating a duty of physical care that could convert nonfeasance into criminal assault or unlawful neglect.
- As a result, the prosecution could not sustain the charges on a pure-omission theory, and the defendants were not convicted on that basis.

## Legal Principles

- A defendant is generally not criminally liable for a pure failure to act unless the law recognizes a duty to act in the circumstances.
- “Omission, without a duty,” is not enough to constitute an indictable offence.
- Recognized duties capable of grounding omission liability typically arise from defined sources (for example: certain status relationships, statutory duties, contract, voluntary assumption of care, or creating a dangerous situation).
- A financial obligation created by a will does not, without more, amount to a criminal-law duty to provide personal care.

## Conclusion

Rex v. Smith (1826) is cited for the rule that criminal liability does not usually attach to nonfeasance unless the defendant is under a recognized legal duty to act; the defendants’ moral blameworthiness and the deplorable conditions were not enough to establish an indictable offence where the only clear obligation was a monetary stipend rather than a duty of physical care.


Rex v. Smith, 2 Car & P. 449 (1826)