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Criminal liability for murder by omission

By kd4343 Oct 22, 2013 1050 Words

Currently the UK operates no general duty to aid someone in peril, only where there is a certain relationship established. Using case law and legal principles an attempt to justify such a duty in today’s society shall be considered. In considering its merits and drawbacks, with reasoned opinion, this essay shall conclude whether the UK criminal law should impose such a duty. In UK law it is an offence to fail to take reasonable steps to assist another person in peril in certain situations. Such duties as those arising from contract (R.v Pitwood [1902]), special relationships (Gibbins and Proctor [1918]), creation of a dangerous situation, or one arising from the assumption of being a carer (R v. Stone and Dobinson [1977]). In considering how such a duty could be imposed on society, one would have to consider if such an offence would be a conduct, circumstance or consequence crime (perhaps a combination). Would the offence of failing to take reasonable steps arise from simply not acting; would certain circumstances be a benchmark as to what was a reasonable step to take? Or would the death or severe harm that came to the person in peril define whether the bystander had failed to take reasonable steps. Imposing criminal liability for offences of commission by omission is quite a modern approach to criminal justice. Such a law would hope to yield a socially conscientious society, whereby one did think of their neighbour and did not simply ‘look out for themselves’. Individual liberties within a democratic society are altered by such a duty;

however this could be said of all laws. Surely it is a necessity of a democratic society to have laws that act as guidelines for how the greater people want their country run. There is an argument that Parliament does have a duty to impose moral guidelines upon society. The very reason we have a legislative body is to guide society in the way we behave, so why stop at guiding society in what we cannot do but also guide further in what we cannot omit to do. To secure a criminal conviction usually three key components must be established, actus reus, mens rea and the absence of a valid defence. An actus reus of an omission is such a wide criteria that to realistically be imposed it must detail narrower criteria, whereby assisting a person in peril is a reasonable task. Such categories as proximity and foreseeability greatly alter the parameters of whether someone is capable of taking reasonable steps. Criminal liability must also display an element of mens rea, how this element would interplay with an actus reus of omission to act is questionable. Would an omission to help someone out of malice or some pecuniary interest hold a greater sentence than an omission to help due to simple idleness? Perhaps a test for the reasonableness of a person’s decision not to help is suitable. This then begs the question of possible defences of omission. One person may have a general awareness of those around them while another may genuinely not see any danger or even take in their surroundings.

If the Legislator is to impose legal morality, whose morality is to set the standard? Different people have a different moral barometer; perhaps it is best to just let society find a natural hero in every crowd and not force someone who is just not inclined to be a Good Samaritan. Equally some people are not inclined to step outside their comfort zone and may fear situations where many people would naturally jump to the rescue. The ‘flight verses fight’ instinct is a natural instinct everyone has, with one man’s urge to save the day prompting another to hide in a bush until all danger is gone. If someone takes five minutes to fight off their irrational fear of water to save a drowning child in knee high tides can they be condemned on their irrational fears if the child dies? The concern for any liability if a rescuer does more harm than good is of course an issue. If a rescuer believes he sees another person in peril and interferes with a chain of events, the rescuer risks becoming a part of the causation, or a novus actus interveniens. In ‘Causation in the law’ (Unit 16, pp58), Professors Hart and Honoroe considered that the chain of causation might be broken by the ‘free, deliberate and informed intervention’ of a third person. Of course if it was the law to intervene then the intervention would no longer be ‘free’. Perhaps this gives more weight to the argument to create such an obligation. A good Samaritan can in some circumstances feel like a criminal no matter how good their intentions. With the shoe on the other foot the rescuer himself may be injured because they were legally obliged to help another. Could the family of a man who

drowned trying to rescue a child sue the parent for being foolish enough to let their child go swimming in deep waters? Perhaps here statutory safeguards could play a hand in preventing the immoral from financially gaining from a moral act. Lord Coleridge in R. v Instan [1893] stated ‘every legal duty is founded on a moral obligation’ although this case displays the duty arising from the assumption of care for the helpless, Coleridge places great emphasis on moral obligation. While morality lies at the backbone of the justice system it is still possible to let someone die while it poses no inconvenience to the bystander to help. For there to be no criminal liability for murder by omission when proximity, foreseeability and danger are not an issue is quite simply wrong. It is taking liberalism too far and not holding people accountable for the part they play in society. The moral obligation to help someone is such a pure thing that it should be protected and anyone who chooses not to act with such good intention should be held accountable.

Words: 1000
Allen, M. & Cooper, S. (2010) ‘Actus Reus’, in Allen, M. & Cooper, S. (10th Ed) (2010) Elliott and Wood’s Cases and Materials on Criminal Law, Ashford Colour Press, Gosport. R v. Pitwood [1902] 19 TLR 37

R v. Gibbins and Proctor [1918] 13 Cr App R 134
R v. Stone and Dobinson [1977] QB 354
R. v Instan [1893] 1 QB 450

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