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.

Inioluwa Lawani

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.

Introduction

It can be argued that we all morally have a social responsibility to assist a vulnerable person when they are in peril. However, legally there is no doctrine or principle that is in support of criminal liability on the basis of an omission, especially in circumstances where there is no legal duty to act. In order to establish criminal liability it is important to distinguish between what ‘one is morally obliged to do and morally required to do’[1]and to differentiate between ‘what one morally ought to do and what is morally advisable to do’[2]; with the former establishing criminal liability and the latter supporting the ‘no – liability’ principle. For example, if such a distinction is applied to the aforementioned statement, the person in  question ‘morally ought’ to have helped the injured man so as to avert possible death (morally advisable). However, because there is no legal duty of care and therefore no legal duty to act, there can be no criminal liability in this instance.

There are a plethora of arguments that have been presented in order to support the ‘no – liability principle’[3] as well as to repudiate it; including those of responsibility and culpability. These arguments as well as the nature of omissions, the conventional view on social responsibility and the different duties of care will be discussed in great depth throughout the course of this essay.

The ‘Conventional View’ on Criminal Liability and Omissions

Omissions liability is applied when the ‘agent’ in question has failed to act when there is a legal duty to do so. The ‘conventional view’ on criminal liability is predicated on the belief that the Criminal Law should not be quick to impose liability on a person who fails to act when they aware that a vulnerable person is peril, except in cases where an ‘agent’ or persons have willingly undertaken responsibility of the victim[4]. In such circumstances, the person in question must render assistance to those with whom he shares a special relationship with, whether it be familial, contractual or even care – based. For example, in the case of Nicholls[5] the victim’s grandmother had agreed to take care of the victim after the demise of her mother. The victim was neglected and died. The defendant (the victim’s grandmother) was held criminally liable based on the duty that arose from the grandmother’s explicit assumption of care[6]. However, in cases where there is no special relationship between a vulnerable injured person and a passer-by there can be no criminal liability for failure to act, because there is no legal obligation to act and there is no special relationship between both the ‘agent’ and the injured person. Furthermore, conduct that is not harmful should not impose criminal liability on the person in question, especially in circumstances where their conduct or the lack thereof is not accompanied ‘by an intention to encourage, assist or commit a substantive offence’[7]. In such instances (where a passer-by has walked past an injured man) there is no mens rea and the defendant cannot be held criminally liable.

Those in support of the ‘conventional view’ on criminal liability, believe that the Criminal Law should promote and ‘maximise’ individual autonomy. For them, individual liberty should only be encroached upon when restraining individuals from causing injury to others and that the burden of action should not be imposed on those who may not prefer to render assistance to those in peril. Liability should not be ruled by chance and such a code (much like the French Penal Code[8] whereby failure to assist a person in peril or to even report a serious crime is classified as an offence[9]) is likely to ‘foreclose any choice’[10] the passer-by may have and forces them to sacrifice their liberty and the pursuit of their own interests to assist someone whom they have not legally assumed responsibility for. An individuals’ right to self-determination would be impaired if they had to stop and help an injured person, as this prevents them from doing anything else at the time.

However, the social responsibility view on omissions liability stems from the idea that individuals need one another (the actions of others) to purse their own interests and goals. For advocates of this perspective, there is a general belief that rendering assistance to a victim in peril should be encouraged as long as this assistance does not endanger the person who renders it. This is because social cooperation and social responsibility are a necessary part of the pursuit and ‘realisation’ of individual autonomy[11]. The value of an injured person’s life is more important than the value of a temporary breach of freedom and individual liberty, therefore a failure to act (omission) should be an object of the Criminal Law because omissions ‘threaten the moral fabric of society’[12]. In circumstances where an ‘agent’ fails to help an injured person, it can be argued that he is secondarily responsible for the death of that person and in this case the one who failed to help the injured man, and the one who caused the injury should share responsibility for the authorship of the consequence[13] (if death occurs and it was foreseeable).

Criminal Liability: Culpability and Responsibility

The main preventive function of the Criminal Law is to criminalise conduct or behaviour that could potentially harm others[14]. In cases where an ‘agent’ or ‘defendant’ has failed to act and could potentially be criminalised and held liable for their inaction, a number of arguments have been developed or formulated to defend the ‘no – liability’ principle[15]….

Written by Inioluwa Lawani

 

 

[1] Victor Tadros, Criminal Responsibility (first published 2007, 1st edn, OUP 2007)

[2] Ibid 189

[3] Tadros ( n 1) 184

[4] Andrew Ashworth ‘The Scope of Criminal Liability for Omissions’ (1989) L.Q.R. < https://login-westlaw-co-uk.ezproxy.brunel.ac.uk/maf/wluk/app/document?&srguid=i0ad82d08000001686bd4e5add1a98681&docguid=ICF835A40E72111DA9D198AF4F85CA028&hitguid=ICF835A40E72111DA9D198AF4F85CA028&rank=1&spos=1&epos=1&td=11&crumb-action=append&context=5&resolvein=true> accessed 17 January 2019

[5] Nicholls (1874) 13 Cox CC 75

[6] John Child and David Ormerod, Smith, Hogan and Ormerod’s: Essentials of Criminal Law (first published 2015, 2nd edn, OUP 2017)

[7] Andrew Ashworth, Principles of Criminal Law (6th edn, OUP 2009)

[8] Tadros (n 1) 193 ‘French Penal Code’ in Andrew Ashworth, ‘Criminal Omissions and Public Duties: The French Experience’ Article 63 (2) (1990) https://onlinelibrary.wiley.com/doi/full/10.1111/j.1748-121X.1990.tb00597.x  accessed 22nd January 2019

[9] Tadros (n 1) 184, 193

[10] Ashworth (n 4)

[11] Ashworth (n 4)

[12] Ashworth (n 7) 34

[13] Tadros (n 1) 195

[14] Ashworth (n 7) 38

[15] Tadros (n 1) 184

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