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.

Shannon Riordan

"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."

Examples of omission laws are found within the French Penal Code. Article 223-6 quotes that “anyone who, being able to prevent by immediate action a felony or a misdemeanour against the bodily integrity of a person, without risk to himself or to third parties, wilfully abstains from doing so, is punished by five years' imprisonment and a fine of €75,000.  The same penalties apply to anyone who wilfully fails to offer assistance to a person in danger which he could himself provide without risk to himself or to third parties”[1]. As well as this, Article 223-7 states something similar but in terms of dangerous situations. However, it’s important to note that despite not all countries containing criminal omissions, liability can still be established “in limited circumstances, (where) (…)a duty exists when: (a) there is a special relationship (…); (b) there is a contract (…); (c) a person creates a risk of harm to another person (…) and then fail to act to prevent the harm from occurring; and (d) a person who has no original duty to act voluntarily comes to the aid of in peril, but then omits further aid and, as a result of the omission, puts the at-risk individual in a worse position than if no assistance had been undertaken.”[2] An example of (d) can be found in the case of R v. Taktak “the accused’s duty to seek medical assistance for the deceased arose (…) by (…) having assumed a duty to care by taking her to some premises in an attempt to assist her. Had he not assumed her care and ignored her plight, he would not have been under any duty”[3] .

 

Liability can be established in criminal omissions through the failure to comply with statutes and contracts. Examples of this can be found within the Terrorism Act 2000 wherein particular section 19 (1) states that it’s a person’s duty to report someone or something if he or she “(a) believes or suspects that another person has committed an offence under any of sections 15 to 18”[4]. Section 19 (8) then states that “a person guilty of an offence under this section shall be liable”[5]. In relation to the scenario, our choice to act can be heavily influenced by contractual duties or towards certain statutes. For example, if we were a paramedic, our contract states that we should provide aid to anyone in need. If we were to ignore the injured man, we would be held criminally liable as a result of disregarding our contractual duties. Pittwood (1902) is a case which highlights where criminal liability was established out of a contractual duty.[6] The Defendant was a guard of a train crossing. He forgot to close the gate which was one of his duties. A pedestrian was killed as a result. A similar case is that of Dytham [1979].[7] “A police officer was charged with misconduct in public office when, while on duty, he failed to intervene in an incident in which V was kicked to death by a nightclub bouncer 30 yards away. The offence of misconduct in public office creates a clear duty for public officials to act in a reasonable manner”[8] which is why he was held criminally liable. One issue of such duties is that it’s not always clear where there is a duty to act. “The law would need to state clearly that any contractual duty which is then breached may be accepted as a basis for omissions liability in criminal law”[9].

 

Liability can also be established if our actions caused the man’s injury and we didn’t do anything to assist him. This is known as causation omissions which is a duty to act in a situation which has arisen due to our interference leading to the cause of the position of the victim. This can be seen within the judgement of Miller (1982). The defendant created or at least contributed to the creation of a dangerous situation, so had the responsibility to take reasonable actions in order to prevent harm from being a resulting factor.

 

Following on from this, criminal liability may be established if we were to have a relationship of significance with the injured man. Such a relationship may stem from parental duty, as seen in Gibbins and Proctor (1918).[10] A couple were convicted of murder on their failure to feed a man’s child (V). “They acted with the intention to cause serious harm thereby satisfying the mens rea of murder”[11]. Their failure to act led to a death where, if their duty to act was fulfilled, wouldn’t have happened. Criminal liability can also be established within a relationship of Spouses. If we were to be married to this injured man, we can be found liable for not providing the aid we have a responsibility to. This is evident in cases such as Hood (2003).[12] …. The defendant failed to assist, and she was admitted to hospital too late resulting in death. Liability occurring in criminal omissions can also be found where a duty of care is assumed. For example, within the judgement of Instan (1893)[13], the defendant was the sole carer of her aunt who was unable to feed herself. The defendant did nothing to help this. The aunt died and the niece was found liable.

Currently under UK law, in order for liability to be established in criminal omissions, the defendant must be under a legally recognised duty to act. Most countries who accommodate such laws, also have strict requirements to what establishes criminal liability. “In several statues there is no criminal liability for failure to rescue unless the victim has died or been injured.”[14].  For example, “one of the most recent penal codes, that of Ethiopia, (…) uses the formula “imminent and grave peril”…

Written by  Shannon Riordan

 

[1] French Penal Code 1994 Article 223-6

[2] Joshua, Dressler, ‘Some Brief Thoughts (Mostly Negative) about Bad Samaritan Laws Symposium: Good Samaritan Statues’ 971, 976

[3] Sally, Kift, “Criminal Liability and the Bad Samaritan: Failure to Rescue Provisions in the Criminal Law Part 1” 212,228

[4] Terrorism Act 2000 S.19(1)

[5] Ibid S.19 (8)

[6] R v Pittwood (1902) 19 TLR 37

[7] R v Dytham [1979] QB 722.

[8] John Child and David Ormerod, “Essentials of Criminal Law” Page 52

[9] Andrew, Ashworth, “The scope of criminal liability for omissions” 424, 444

[10] Gibbons v Proctor 64 LT 594

[11]John, Child and David, Ormerod “Essentials of Criminal Law” Page 5

[12] Hood [2003] EWCA Crim 2772

[13] R v Instan [1893] 1 QB 450

[14] F. J. M., Feldbrugge, “Good and Bad Samaritans: A Comparative Survey of Criminal Law Provisions concerning Failure to Rescue” 630,646

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