if the law is to keep pace with morality, criminal liability should be imposed for all omissions to act where the person or property of another is threatened

In criminal law, an omission to act, only where a duty to act has been established, is considered a criminal act. It therefore, is not considered a criminal act when no duty to act has been established. Per Lord Diplock in Miler [1983] 2 A.C. 161,175, “The conduct of the parabolical priest and Levite on the road to Jericho may have been indeed deplorable, but English law has not so far developed to the stage of treating it as criminal” (Criminal Law, Text and Materials, CMV Clarkson & HM Keating, Thomson Sweet & Maxwell, Fifth Edition, 2003, pg. 97) What then, does a duty to act consist of, and how is it established? Does this contravene morality?

According to Graham Hughes in, “Criminal Omissions” (1958) 67 Yale L.J. 590 at 626, 634, morality is indeed contravened. He says “but a view of moral responsibility is surely outmoded which imposes liability on the father who does not warn his child on the precipice before him, but not on a stranger who neglects to warn the child… The duty to take active steps to save others, and a liability [for homicide] in the absence of such action, could be based on the defendant’s clear recognition of the victim’s peril, plus his failure to take steps which might reasonably be taken without risk to himself to warn or protect the victim…” (Supra Clarkson & Keating, p. 110).

This view is supported by Andrew Ashworth in, “The Scope of Liability for Omissions” (1989) 105 L.Q.R. 424 at 430-432. He says ‘individuals tend to place a high value on interpersonal contacts, relationships, mutual support and the fulfillment of obligations, and a society which values collective goals and collective goods may therefore provide a wider range of worthwhile opportunities for individual development… Each member of society is valued intrinsically, and the value of one citizen’s life is generally greater… It follows that there is a good case for encouraging co-operation at the minimal level of the duty to assist persons in peril, so long as the assistance does not endanger the person rendering it…’ (Supra Clarkson & Keating, p. 109).

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The authors claims that society has evolved in such a way that it should be considered immoral for all omissions to act, regardless of the relationship. However, both academics point out that so long as the act of assistance does not endanger the person providing it. It is clear that it is not reasonable to impose any criminal liability when it endangers the person or people rendering it. This is supported by the American case of United States v Knowles, 26 Fed.Cas. 801 (No. 15, 540) (N.D. Cal. 1864) (District Court, Northern District California).

In the ...

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In the case, the defendant was captain of a ship when a seaman fell overboard and drowned. The captain was charged with manslaughter on the grounds that he willfully omitted to act, despite his duty to do so. The prosecution argued that the captain was bound by both law and contract to do all he could, to rescue all under his charge. They went on to argue that he was bound to act no matter what the delay to the voyage or expense to the owner, subject to the safety of the vessel and the remaining on board. It was deemed that the captain was under a duty to act due to the closeness of the relationship between them. The relationship of seaman and captain, where the captain undertook the responsibility to look after those under his charged were both assumed, and under contract. The captain was acquitted of the manslaughter charge as it was proven that any attempt to perform the rescue would jeopardize the safety of the rest on board the vessel due to the stormy sea and wind conditions. (Supra Clarkson & Keating, p. 105-6).

Risking the lives of others under your charge for the small hope saving another does not seem like the logical thing to do. Though it can be argued that this may not seem like the moral thing to do, it certainly seems like the option which makes more sense. Common sense takes precedents over morality. This is supported by Maximilian Weber, a German political economists and sociologist. He said, “Modern law has to be able to legitimate power exercised in a formally legal manner through its own formal properties. These are to be demonstrated as “rational” without any reference to practical reason... Law possesses its own rationality, independent of morality. Any fusion of law and morality threatens the rationality of law and thus the basis of the legitimacy of legal domination”. (Jürgen Habermas in his lecture delivered at Harvard University on the 1st and 2nd of October, 1986).

I have shown that no duty to act should exist when there is a relationship between the parties when there is a reasonable danger to the person rendering aid. It should be safe to infer then, that the same duty should not exist when there is no relationship between the parties. I shall touch briefly on the issue whether a duty to act should exist when there is a relationship between the parties, and no reasonable danger to the person rendering aid.

It is in this respect where criminal law and morality agree with one another, however, only when a duty to act has been proven. A duty to act can be proven by the closeness of a relationship between the parties. Parents are under a duty to aid their small children; husbands and wives are under a duty to aid each other (Smith [1979] Crim.L.R.251).

In Downes [1875] 13 Cox C.C. 111, the defendant was a member of a sect called the Peculiar People, who believed in prayer rather than modern medicine. He was convicted of manslaughter when he failed to call a doctor for his sick child that died (Supra Clarkson & Keating, p. 97).

A relationship can also be said to exist when a responsibility has been assumed. An example would be the case of Stone v Dobinson [1977] 1 Q.B. 354, where the defendants took home the infirm sister of one of them. She did not feed herself properly and eventually died. The defendants were convicted of manslaughter after assuming responsibility by taking her into their home and not calling aid for her (Supra Clarkson & Keating, p. 97-8).

A relationship can also be said to ensue from a relationship due whereby duty is assumed by contract, imposed by statute, or where the defendant himself created a dangerous situation, and was thus under a duty to attempt to remedy it (Supra Clarkson & Keating, p. 100-4).

The more contentious argument however is the one whereby there is no closeness of relationship between the parties, and there is no danger to the party to provide aid. Let us consider two hypothetical scenarios. The first case is where a child, A, is drowning in a shallow pool of water, and only B is in the vicinity at that instant, and the second case is where A is drowning in the same shallow pool of water, but there are many people, C, D, E and F in the vicinity. English common law takes the stance that the stranger or strangers are under no duty to act. Although I find this extremely unjust, there must be a reason why the law has not changed for so long. In the first case, although there may be no danger to B, B could suffer a detriment by saving A. He could ruin his brand new designer suite by getting it wet, or be late for his date with his girlfriend. Albeit trivial, B still suffers a detriment. Firstly, if B knew that if he damaged his suit, and he knew that it would be impossible for him to claim damages, why would he do it? It would be unfair for the law to impose this duty on him, where he suffers a detriment, and then can not claim damages. Or if he lets A drown as he did not want to be late for his date, as he was perpetually late, and there was a possibility that she would break up with him if he was late again. Would that be a valid defense?

That would make it a subjective test, which would create more problems. Would someone else who was not wearing a brand new designer suit be liable? Or if someone who was not in a rush for date? The possibilities are endless and the situation becomes too complex when too many variables are considered. In the second case, if C were late for a meeting and D were late for a football match, and if E were drunk and F hydrophobic, who would be held liable? It would be impossible to argue the case.

Take for example a case where no danger or detriment exists. Suppose X is having dinner on the terrace of a restaurant. Only X and an old man are there. The waiters are all in the kitchen. Suppose the old gentleman suffers a heart attack, and he tries to reach for his pills which are just out of his reach on the table. X chooses to sit back and watch. Just then, a waiter appears and notices the old man having a heart attack and rushes to give him the pills. However, it is too late and the old man dies. The medical reports reveal that if his pills were offered to him earlier, he would have survived. The waiter acts as a witness that X was able to provide the pills, but simply chose not too. Although it would seem extremely unreasonable, it would be unreasonable for the law to draw up specific laws for heart attacks, saving drowning children and so on.

Although in certain cases may seem unreasonable where criminal liability is not the result, I think for convenience’s and objectivity’s sake, the law has maintained its stance regarding criminal liability for omissions.

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