‘Law should encourage citizens in their civic duty to do ‘the right thing’ in a moral sense and not turn a blind eye or fail to act to help someone who is in need’.
Consider to what extent the criminal law relating to omissions reflects this view.
Generally speaking, English law only punishes those who cause a prohibited act, although this may be a positive one. There is no general duty to act in order to do good deeds. There may well be a moral obligation on someone to be a ‘good Samaritan’ but there is not a legal one. However, Parliament and the courts find people criminally liable when they fail to act where responsibilities and duties of care are involved. It is not accepted that individuals should be criminally liable for failing to go to the assistance of those who find themselves in some kind of distress. Nevertheless, English law does punish those who fail to act under three situations.
The first is where a statute actually imposes a duty. One example of this is the Road Traffic Act 1988, in which lays down situations where failing to act leads to an offence. This may be not stopping at a scene of an accident, found in s.170. The Children and Young Persons Act 1933 also does this. Such failures in feeding, clothing and sheltering children may lead to the offence of gross negligent manslaughter. Acts of Parliament ensure that people who fail to act appropriately will be convicted.
Another way that failing to act may lead to an offence is through a contractual duty. Doctors, for example, have a duty to act. In Adomako (1994) an anaesthetist was convicted of manslaughter on the basis that he had failed to notice that a vital breathing tube had become disconnected during an eye operation, in which resulted in death of the patient. Pittwood (1902) was convicted of manslaughter. He was a signalman employed by the railway company to look after a level crossing and ensure that the gate was shut when a train was due. He left the gate open and was away from his post, with the result of a horse and passenger hit and killed. The court rejected his argument that his duty was owed simply to the railway company, and held that he was paid to look after the gate and protect the public. These cases demonstrate that the duty is owed to who anyone who may be affected by a defendant’s breaches of contract, and not just the other parties to the contract (a defendant’s employers). The law here provides no escape for those who fail to fulfil a contract which is likely to endanger lives. Contractual obligations protect the public.
The law also says that in certain situations there is an omission. One of these is misconduct in a Public Office. An illustration of this is in the case of Dytham (1979). This involved a police officer who was on duty near a nightclub where the victim was ejected. A fight ensued clearly audible and visible to the officer but he did not intervene. It resulted in the victim’s death and so he was convicted of misconduct. The Public Office is relied upon to protect the public, and so it is expected that their job is to provide this service to the best of their abilities.
A special relationship is another circumstance in which gives rise to a duty. In Instan (1893), the defendant went to live with an elderly aunt who became ill and for the last twelve days of her life, was unable to care for herself or summon help. The defendant did not give her any food or seek medical assistance, but continued to live in the house and eat the aunt’s food. The defendant was convicted of manslaughter. A further case that emphasises this is that of Gibbons and Proctor (1918). Gibbins was the father of several children. There was evidence that his partner, Proctor, hated his 7-year-old daughter and had hit her. They both kept her separate from the others and deliberately starved her to death. They were both convicted of murder as Gibbins owed her a duty as a father and Proctor was held to have undertaken a duty to her. Both of these cases ensure that family relationships do owe a duty of care. However in Khan and Khan (1998), the convictions of manslaughter were quashed. The two defendants were drug dealers whom supplied a 15-year-old girl with heroin. She eventually overdosed and died, and although the men could have helped her, they instead left her to die alone. This does provide evidence for the view that perhaps the law should encourage citizens to be moral and help those in need.
Accepting responsibility is also a situation in whish gives rise to a duty, and this is demonstrated in the case of Stone and Dobinson (1977). The partners allowed Stone’s sister to come and live with them whom suffered from anorexia. She was confined to bed and refused to eat anything other than biscuits. They tried to give her a bed bath, but shortly after she died weighing less than 5 stone. She had two huge maggot-infested ulcers with bone clearly visible. They were both convicted of manslaughter because they had assumed a duty of care to her. Stone was 67, partly deaf and of low intelligence whilst Dobinson was 43 and described as ‘ineffectual’ and ‘somewhat inadequate’. They were also unable to use the telephone and tried to find her doctor. They seemed to have done their best but their best was simply not good enough. The law here is very harsh, but is definitely encouraging people to act very morally.
There is also a duty from the creation of a dangerous situation. In Miller (1983), a vagrant who was squatting in a house awoke to find a cigarette that he had been smoking had set fire to the mattress. He did nothing to extinguish the fire, but moved to another room and went back to sleep. The fire spread and caused ï¿½800 worth of damage, and so he was convicted of arson. This is point of law is similar to that of Matthews and Alleyne (2003), where the defendants mugged the victim on a bridge and threw him into the river below – knowing that he could not swim. The victim drowned, and so they were convicted because they created a dangerous situation, and so had a duty to rectify or put right the situation which the failed to do. Both of these cases show that the law does in fact promote citizens to act morally, but only in situations whereby they have caused the danger.
It is generally believed that non-fatal offences against the person cannot be caused by an omission. In Fagan V MPC (1969) the court had to be creative in order to find the defendant guilty of battery. He was directed to park a car by a police officer and drove onto his foot. The policeman insisted that he got off but the defendant refused and said “fuck you, you can wait”. He switched off the engine but eventually reversed off slowly after the victim repeated his request. The prosecution were satisfied that he “knowingly, provocatively and unnecessarily allowed the wheel to remain on the foot”, and so he was convicted.
It is apparent that the English Legal System does encourage the public to act dutifully to some extent. It seems that an omission can only occur where a statute imposes a duty, there is a contractual duty to act and in certain situations where the law states that an omission is an offence. These situations, however, are limited and only really involve circumstances where there is an evident responsibility. The law does not expect citizens to intervene and help strangers as such who are need.