Law of Omissions is too Narrow

The law of omissions is too narrow, reflecting a nineteenth century laissez faire attitude to social obligations which should be consigned to history. Discuss.

“The conduct of the parabolical priest and Levite on the road to Jericho may have indeed been deplorable, but English Law has not so far developed to the stage of treating it as criminal”. In general the criminal law prohibits the doing of harm, but does not impose criminal liability for offences of commission by omission or simply speaking for failing to aid person in peril. To impose criminal liability an element known as actus reus, which is the guilty act, must be present. This can either be a state of affairs i.e. being in the wrong place at the wrong time as in the case of Larsonneur 1933, or where imposed by law as will be discussed further. English legal system therefore punishes for omissions within certain categories. Lack of recent changes in law is not enough to assume, that its protection is good enough as it is. Arguments to support and counter-arguments will be critically reviewed during a course of this essay to come to the conclusion that law of omissions is unsatisfactory and should be widened. There are no perfect solutions, but moving towards more socially conscious law would bring an advantage to all of us and impose duties, which would see society not as collection of unconnected individuals as in Gladstone’s ‘Laissez Faire’ attitude, but cohabiting and cooperating, still individuals, happy to look after one other well being.

Penal law generally recognizes an offence of omission, though within established and in certain cases unsatisfactory framework. Liability is dependant on whether recognizable duty to act in given circumstances was owed. Said duties can arise from: i) contract like in R v Pittwood; ii) out of relationship such as parent-child being pictured in Gibbins and Proctor ; spouse to spouse; iii) creation of dangerous situation iv) or the one arising from assumption of care for someone unable to care for himself, such as in R v Instan, where Lord Coleridge said that “It would not be correct to say that every moral obligation involves a legal duty, but every legal duty is founded on a moral obligation”. British criminal law differs from those of European countries such as Denmark, Finland, Italy, Spain or even Russia where more ‘socially conscious’ law of omissions operates. Current legal framework has been, and still is reflecting a nineteenth century adapted by classical Liberalism laissez faire attitude, which is a basic understanding, that state’s therefore law’s interference with people should be as little as possible. Classical liberalists build their believes on principle of individual freedom and the same attitude was adapted in social cohabiting and situations like duties, and responsibilities owed to others within the limits described already. Observing more ‘socially conscious’ laws being adapted in countries such as France, make one wonder whether current British legal framework reflecting this outdated attitude should be consigned to history and liability for failing to intervene should be widened.

There are a number of reasons to do so. One of them is the argument of human compassion and logic expressed by words: “Every man is bound to assist those who have need of assistance, if he can do it without exposing himself to sensible inconvenience.  This obligation is stronger, in proportion as the danger is the greater for the one, and the trouble of preserving him the less for the other.  Such would be the case of a man sleeping near the fire, and an individual seeing the clothes of the first catch fire, and doing nothing towards extinguishing them; the crime would be greater if he refrained from acting not simply from idleness, but from malice or some pecuniary interest.”

Consideration of simple facts such as person, who may be legally obliged to rescue others in danger – for example a drowning child – might have a phobia of water, or simply cannot swim. Would they need to disclose all these information to higher authority on the hearing? What if they truly believed that child was in no danger? Should there be a test of reasonable person? Implementation of such a personal would think and individual to each of us factors would make discussed doctrine/ matter rather difficult for implementation, but should it not be further assessed before making any closing assumptions? Concentrate for a moment on interesting example in US medical practice – controversial Tarasoff Doctrine, where the psychotherapist was dealing with patient threatening to kill easily identifiable female, which he did. The California Supreme Court disagreed with psychotherapist that he owed no duty to killed women in favour of victim’s parents. According to that decision, the therapist owes legal duty not only to his patient, but also to potential victim with assumption, that patient is possibly dangerous and the victim-to-be can be identified. Another example is of a HIV infected patient, about whom doctor knows that is going to have sexual encounter with unaware of his condition identifiable individual. Again United State’s law imposes duty on ‘information bearer’ to warn potential victim of risk.

Action is necessary in certain situations even if it may cause permanent injury or even death as proven in Re A (children), where separating Siamese twins as decided by Court of Appeal is an act of choosing lesser evil and therefore performing it should not be treated as criminal act. Court made the decision instead of parents, should it not analogically be adapted in the situation, where law makes decision instead of people, by imposing general duty to rescue, so no one who has the ability to help – will be standing and looking at drowning child. If actions described in presented examples not only are morally acceptable, but also logical and argumentative does it not make sense to realize, what French did and described in Article 63 of the Penal Code of 13 April 1954: ‘Without prejudice to the application in a proper case of severer penalties prescribed by the present Code and by special laws, anyone who could, by his prompt action, without risk to himself or to third person, prevent either a crime or a delict against the bodily security of a person, and who willfully abstrains from so acting, shall be punishable by imprisonment (…) and by fine (…), or by only one of penalties.’ The fact, that much more ‘socially friendly’ legislation could hypothetically be introduced does not mean that courts suddenly would stop looking at the actual causation and positive actions, which led to rescue’s death. Societal mores and morality are a heavy influence on how current law of omissions is being assessed, but bearing all above facts and possible projections the law of omissions still is too narrow and should be revised. People’s perception of what is and is not morally acceptable may cause great problems while being assessed in court. The question would be who’s morality should be accepted? Certainly not of an individual, who having nothing to loose and being able to help omitted to do so.

One of the arguments is being brought by Sir James Fitzjames Stephen: “A number of people who stand round a shallow pool in which a child is drowning, and let it drown without taking the trouble to ascertain the depth of the water, are no doubt shameful cowards, but they can hardly be said to have killed the child”.

The bystander if not bound by any already described duty has full law’s acceptance in deciding whether he will or will not help. If he happened to be unresponsive and egoist his failure to act or prevent crime from happening does not constitute to actus reus of the offence. Active bringing the result, when A wishes B dead is a murder, but discovery by A that B is in danger and as a result of it dies, because A decided due to his personal interests not to help B knowing that will be no legal repercussions bring an important question: Is there active killing more killing then letting die in such a situation? Yes, according to current legislation. To conclude, the reasoning voiced by Sir James Fitzjames Stephen is logical, but should for no reason be used as counter – argument to revision and some substantial changes in current law of omissions. Looking at cited passage and Article 63 of the Penal can be agreed, that no one needs to actually go to lengths of charging unresponsive bystander with killing, as long it is not very clear case of A wishing B dead.

The only charges would be of failure to rescue as imposed by law and should be differentiated from these described in four currently functioning in law categories, where by entering the contract, being a parent, willingly accepting to care for someone, or creating a dangerous situation individual assumes the duties and all possible consequences of failing to fulfill them. The law therefore is and should be less reluctant in noticing/ assuming them and punishing.

Applied punishments for breach of general duty of care should be following French example from 3 months to 5 years of imprisonment, fine or both as cites already. With new legal framework it still would be improbable / impossible as it is with current, that individual should for example be found guilty of refusing to provide food to homeless person, who as a result of starvation dies, where in relationship parent-child, parent would be fully responsible for such death. Widening of law of omission would not lead therefore to some ridicule, but would be a sensible evolution of current, outdated law.

The problem concerned not only law, but also philosophy, discussed already medicine, saints such as Thomas Aquinas and what follows religion itself ; where in canon law failure to act could be as reprehensible as an actual act. The question is: why some of the bystanders are unresponsive where they could have saved someone’s life. Willingness to help unfortunately does not protect ‘rescuer’ from making mistakes, but fear of legal repercussions should not stop from helping. In United States legal principle was developed called: ‘The Good Samaritan Law’ to protect rescuer, voluntarily helping stranger in peril, from being sued.

Not only those cases though make one wonder whether the current legal framework tries to impose the duty within specified categories, which person judging from the point of reasonableness would not be able to fulfill in certain situations such as case of R v Stone and Dobinson Also duties legally been recognized while leading to defendant being found guilty.

General duty to rescue should exist and be imposed on every one of us. Just to think of it for a second: “Should we be satisfied with a legal system which penalizes minor acts of damage, which permits shoplifters to be sent to prison, and yet which fails to condemn a person who could do something to avert death or serious injury and does nothing?” Categorically not. The law of omissions has not been revised in the recent times often enough and clearly is a perfect example of what Graham Hughes once said: “The law often lags a half-century or so behind public mores”. Widening the law of omissions certainly cannot be treated as ‘letting to much of a morality’ influence legislation, as laws actually are founded on what morally is and is not or should not be acceptable.

Bibliography

Books:

1. M.T. Molan, P. Hungerford – Welch, A. Taylor, Sourcebook on Criminal Law, Second Edition, Published by Routledge, 2001
2. Michael J Allen, Simon Cooper, Elliott & Wood’s Cases and Materials on Criminal Law, Ninth Edition, Sweet & Maxwell, London 2006
3. J. Bentham, Essay on the Promulgation of Laws and The Reasons Thereof; with Specimen of a Penal Code”, in The works of Jeremy Bentham, published under the superintendence of his executor, John Bowring, New York: Russell & Russell, 1962, volume 1; note: “Reproduced from the Bowring edition of 1838-1843”; p. 164, Explanation g.
4. G.A. Bermann, H.P. de Vries and N.M. Galston, French Law; Constitutional and Selective Legislation, Penal Code, 8-11 (1990)
5. J F Stephen, A History of the Criminal Law of England (London, Macmillan 1883) vol. III.
6. J. Kortmann, Altruism in Private Law; Liability for Nonfeasance and Negotiorum Gestio, Oxford/ New York 2005, Oxford University Press, xxiii

Articles:

1. Prof. E. Evans, Laissez-faire and the Victorians published on 4th November 2004 and available at: http://www.bbc.co.uk
2. Tarasoff reconsidered, by Ch. P. Ewing in: Judicial Notebook, Volume 36, No. 7 July/ August 2005, page 112 available at: http://www.apa.org/monitor

Cases:

1. R v Larsonneur, (1933) 24 Cr App Rep 74
2. R v Pittwood (1902) 19 T.L.R. 37
3. Gibbins and Proctor (1918) 13 Cr. App. R. 134
4. R v Miller [1983] 2 A.C. 161
5. DPP v Santana- Bermudez [2003] EWHC 2908
6. speech of Brett J. in R v Nicholls (1875) 13 Cox 75
7. R v Instan [1893] 1 Q.B. 450
8. Tarasoff v Regents of the University of California (17 Cal.3d 425 [1976])
9. R v Stone and Dobinson, [1977] 1 Q.B. 345, Court of Appeal
10. Re A (children), Court of Appeal, Civil Division, 22 September 2000 decision, in: All England Law Reports 2000;4:961-1070

Other:

1. Tarasoff reconsidered in: Judicial Notebook, Volume 36, No. 7 July/ August 2005 available at: www.apa.org/monitor/julaug05/jn.html
2. A. Ashworth, E. Steiner, Criminal Omissions and Public Duties: The French Experience, 10 Legal Studies 153 -164 (1990).
3. “The Parable of the Good Samaritan” in New Testament, (Luke 10: 29-37)