DISCUSS BY REFERENCE TO WHETHER WE HAVE A DUTY TO ACT WHEN WE ARE WALKING PAST AN INJURED MAN AND WE ARE IN A POSITION TO HELP.
Fernanda De Faria
"We all have a ‘social responsibility’, as fellow citizens, to assist a vulnerable person when we are aware that they are in peril and we are in a reasonable position to prevent the harm. An omission to do so should, under certain conditions, establish criminal liability."
In English Law, there is certain reluctance when considering the application of omissions liability for criminal offences. The general rule is that a positive movement can always satisfy the element condition of an offence, whereas an omission will only satisfy if the offence is capable of commission by omission, there is a recognised duty to act and this duty has been breached. These circumstances are limited and specified because criminal law should be the ultima ratio of the state to deal with undesirable behaviour due to its stigmatising label, severe penalties and limitations to autonomy. However, many defend that there should be amendments to the law to reflect ‘social responsibility’ and the moral wrong behind omissions, by introducing a citizenship duty. This is demonstrated in the decisions that show certain flexibility to the current duties. The arguments surrounding the conditions for omissions liability will be further discussed in this essay.
There are two main views regarding liability for omissions: the conventional and the social responsibility view. The latter is based on the idea that we are social beings and consequently, it is more likely we can achieve our individual goals when these are interrelated with collective goods. This view is closely linked to the social welfare principle of criminalisation, which gives preference to the well-being of the community over the temporary freedom of an individual. Under this interpretation, the assistance of a man in peril (serious and immediate danger) by a person in a reasonable position to help, i.e. so long as it would not put them in danger, would be prioritised. A citizenship duty would cover circumstances of ‘easy rescue’ and potentially deal with some issues of fair warning by making the definitions of duty clearer.
The arguments used to justify the reluctance of omissions liability through the conventional view are: culpability, responsibility and liberty. Culpability refers to the moral difference between acts and omissions. The difference in the convictions for “bad Samaritan” laws and those of actions demonstrate the moral distinction of wrong-doing of each one, so it is unreasonable to state that causing harm and failing to prevent it is morally insignificant.
This view also sees that an individual should not be held responsible for consequences that are not of their actions. Immanuel Kant expressed the idea that humans must be treated as subjects responsible for their own actions, as opposed to “means to an end”. If analysing acts and omissions, one may say that when prohibiting an act, a choice of pursuing it is being regarded, whereas when prohibiting an omission, it is most likely a chance (e.g. passing by a man in peril whilst making your way to work). The third case is autonomy and therefore a minimum interference of the state in private matters. The ‘social responsibility’ desire of paternalistic duties within society may lead to overprotection and intrusion into other people’s lives, all which further distances omissions from the principle of autonomy. Additionally, a Statute that specifically aims at the requirement of assistance to a person in peril may not cause distress only as to the limitations of liberty, as this is also restricted in other ways, such as the duty to wear a seatbelt when driving or riding a motor vehicle but the caution is closer related to the support this Statute would give to liability for homicide. Considering this, ‘conventionalists’ defend that there should be no expectancy of fellow citizens to act without a duty directed by law.
These proscribed duties include: offence-specific, contractual, special relationship, based on assumption of care and those created through endangerment. Not all that we abstain from doing fits into the legal definition of omission. A simple example to demonstrate the acquirement of responsibility is one of flowers dying due to lack of watering.
“One of the people who has failed to water the flowers is the gardener, but others have failed to water them too. According to Hart and Honoré, those who do not regard omissions as causes would object that, if the gardener's failure to water the flowers is a cause of their dying, then everybody else's failure to water them is a cause too.”
Despite this, it is understandable that the responsibility will be conveyed to the gardener as he acquired this through his job and consequently is morally more culpable than others. This can be observed in the case of Gibbins and Proctor where a father and his partner were held liable for starving the child to her death. The social anticipation of a parent caring for their minor is so strong that there is expectation that they will be punished if they fail to do so.
There is, however, frequent issues with the boundaries of these duties. For example, if considering duty because of a special relationship, it is important to remember that this is normally applicable between spouses and parents to their children under 18 years of age. Nonetheless cases such as Stone and Dobinson and Evans bring controversial decisions as to whether this duty extends to siblings. Furthermore, there is questioning as to an overlap between the latter duty and voluntary assumed duty. Both cases mentioned previously are unclear as to whether the responsibility arose due to the relationship or the situation i.e. Evans having provided her sister with drugs and stayed by her side, and Stone by allowing his sister to live with him. In addition to this overlap, Evans has further issues as the Miller principle was extended to her case, where the Court of appeal held that:
“where a person has created or contributed to the creation of a state of affairs which he knows, or ought reasonably to know, has become life threatening, a consequent duty on him to act by taking reasonable steps to save the other's life will normally arise.”
This unclarity causes issues as to the principle of fair warning and makes it hard to set precedent for future cases.
Other issues revolving around the criminalisation of omissions include psychological factors and practical difficulties. The bystander effect refers to the decrease in likelihood that an individual will provide assistance to another when in the presence of a crowd. This was demonstrated in the U.S. case of ‘Kitty’ Genovese…..
Written by Fernanda De Faria
 John Child and David Ormerod, Smith, Hogan and Ormerod’s Essentials of Criminal Law (first published 2015, OUP 2017) 48
 Child and Ormerod (n 1) 74
 Andrew Ashworth, ‘The scope of criminal liability for omissions’  LQR 424
 Child and Ormerod (n 1) 75
 R A DUFF, Answering for Crime (Hart Publishing 2007) 110
 Immanuel Kant, Fundamental Principles of the Metaphysics of Morals (Merchant Books, 2009)
 Duff (n 6)
 Ashworth (n 4)
 Road Traffic Act 1988 s 14(1)
 George P. Fletcher, Basic Concepts of Criminal Law (OUP 1998) 48
 Helen Beyon ‘Causation, omissions and complicity’  CLR 539
 R. v Gibbins (Walter)  4 WLUK 25
 R v Stone and Dobinson  Q.B. 354
  EWCA Crim. 650
 R v Miller  2 A.C. 161
 Evans (n 16) Lord Judge CJ. para 31.
 Robert D. McFadden, ‘Winston Moseley, Who killed Kitty Genovese, Dies in Prison at 81’ New York Times (4 April 2016)