‘Law should encourage citizens in their civil 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 commission reflects this view.
Omission is when the defendant does nothing to prevent the victim’s death. In certain circumstances, D may be under a duty to take positive steps to assist V, and if D fails to take those steps then he can be liable for murder or manslaughter. If D is liable for V’s death, he must be under a duty to act in the circumstances, otherwise he will escape liability. This was shown in Khan and Khan, in this case D escaped liability as there was no imposition of duty of care.
Duty of care can be owed in a variety of situations. One of these situations is when duty arises out of contractual liability; where failure to fulfil a contract is likely to endanger lives, the criminal law will impose a duty to act. The duty is owed to anyone who may be affected, not just the parties to the contract. This was demonstrated in Pittwood, where D’s argument was rejected as his duty was owed to the railway company as well as to those who were affected.
Duty of care can also arise out of relationship; this was shown in Gibbons and Proctor. The father owed V duty of care as he was related to her; however his lover, P, was not related to V but was liable because P had voluntarily undertaken a duty. Both adults were liable for murder because of the deliberate non-performance of a legal duty. Duty arising from the assumption of care for another was also shown in Stone and Dobinson. The actus rea in this case was creating a dangerous situation and keeping V in that situation. The mens rea was established when they had realised the dangerous situation and failed to prevent or minimise the harm. S and D were liable for manslaughter convictions as they had assumed a duty of care for V, and their feeble efforts to look after her amounted to gross negligence.
Duty of care can also arise out of the creation of dangerous situation. Where D creates a dangerous situation then, on becoming aware of it, he is under a duty to take steps to prevent or minimise the harm. If he fails to take such steps then he will be criminally liable for the end result. This situation arose in Miller, here D was liable for the damaged caused as he took no steps to prevent the fire from spreading.
The Good Samaritan law enforced in France states that if someone is seen in a dangerous situation, you must help them, unless the situation will jeopardize your own life.
D can be released from a duty that had been voluntarily undertaken or had one imposed on him, this was shown in Smith, where V had stopped D from calling a doctor when she had given birth. The judge had directed the jury to decide whether she become too ill to make such a decision. The judge stated that if she did not appear too ill it may be reasonable to abide by her wishes. The jury was unable to agree and D was discharged.
D will also be liable if there is a breach of duty to act, this situation arose in Dytham. The police officer took no steps to intervene the incident, and had told two people nearby that he was off duty. D was not charged with manslaughter even though by looking at the facts, he owed a duty of to V to intervene and assist him. He had not been charged with manslaughter because of the difficulty in proving that he had actually made a causative contribution to V’s death.
Advocates of reform for this area suggest that where rescue of the victim would not pose a danger to D, then liability should be imposed for failing to act, even where there was no pre-existing legal duty on D. However there are some serious moral and practical objections to this view. One of the objections is that it is difficult to decide the definition of when it would be easy for D to attempt a rescue. Another objection is the forcing of citizens to watch out for and protect each other, even though citizens pay for highly trained professionals to do the job. Also D can misjudge the difficulty of the situation and can put himself at risk.
The criminal law in France and USA encourages citizens to do the right thing by enforcing the Good Samaritan law. In the UK there is no such law and a person must only help another if there is imposition of a duty to care. If there is no imposition of duty of care, then D is not required to help V, this was shown in Khan and Khan. However there is a reform suggested but it should not be enforced as citizens already pay tax to be protected from highly trained professionals.