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Letting drown or killing by drowning: a moral challenge for lawmakers

About The Author

Kristyna Domokosova (Guest Contributor)

Kristyna is a graduate from the University of Leicester. She intends to continue her studies to obtain a master’s degree in law and subsequently practise as a barrister. Her primary areas of interest are intellectual property law and conflict of laws.

Prior to travelling to foreign countries, there is plenty of information about the weather, cuisine, local customs, and documents to be sought to ensure a pleasant stay. The whole concept of the European Union (EU) is to facilitate our travel, work and study options. Having freed EU citizens from the obligation to acquire a passport and visa in the Schengen Area, some information about other European countries should still be obtained by potential tourists and migrants. This should involve familiarising oneself with the legal rights and responsibilities in the foreign country.

Despite the harmonisation of EU law on jurisdiction and in contract and tort matters (i.e. Brussels I Regulation, Rome I, Rome II), EU leaders have agreed to retain the criminal law within the sovereignty of each Member State with the only exception of Article 83 of the Treaty on the Functioning of the EU. Consequently, although businesses may enjoy the clarity of EU Regulations and Directives enforceable across the EU, natural persons travelling to another Member State need to familiarise themselves with the local law to avert its violation. As in common law, civil law systems in Continental Europe also recognise the maxim that ignorance of the law is no excuse and so it becomes the responsibility of each EU citizen who decides to make use of the borderless space to know their rights and obligations in other states.

Since the criminal law is founded upon the morality of the current society, it can be assumed that most immoral acts are prohibited and therefore punishable by law. Unlike positive acts, the law on omissions presents a significant discrepancy between the Continental and common law systems. Whilst French, German, Czech, Polish and other civil law systems have a long tradition of a statutory duty to rescue, also known as the Good Samaritan Law, English law lacks a general duty to act, unless a pre-existing relationship between the witness and the person in peril is established. From the practical point of view, this means that in France seeing a stranger drowning in a pond makes the witness obliged to help, whereas in England there is no criminal liability for letting that person drown.

English system

Within the jurisdiction of England and Wales there must be some close connection between the witness and the person in peril to establish a duty to rescue. Currently, there are five categories of omissions which lead to criminal liability for failure to act. Apart from establishing a duty under a contract or a statute, a defendant may be obliged to help due to their special relationship with the person in peril, their assumption of responsibility for this person or because they created a dangerous situation and it is within their power to avoid jeopardising other people’s lives. As it can be seen from the case law, the imposition of a duty in many instances is construed narrowly and decisions are often unpredictable.

Firstly, a duty of care is imposed on an employee as a result of a contract. In R v Pittwood, it was clarified that the duty of care does not in fact stem from the employment contract, but from the position which is occupied by the employee. This implies that any person in the employee’s position with or without a contract would owe a duty of care to people for whose safety he is responsible. For example, an employee of a railway company in charge of manning a gate at a level crossing owes a duty to ensure safety on the crossing to passing trains and vehicles.

Secondly, a statute can impose a duty to act on parents, professionals, etc. Ashworth warns against great proliferation of statutory offences of omissions which are not sufficiently publicised by the government, since people can easily commit such an offence without any awareness of its criminalisation. Consequently, without knowing of the illegal character of his conduct/omissions, the defendant does not have sufficient mens rea for conviction. Offences of omissions imposed by a statute usually benefit from lower sentences, since the defendant’s guilty mind is insufficient for conviction of manslaughter with the maximum sentence of life imprisonment (R v Lowe ).

Thirdly, a duty to act can be based on a special relationship between the defendant and the victim. This can involve a relationship between children and their parents (R v Dowds) and between a husband and a wife (R v Hood). However, the judiciary has shown reluctance to establish a duty to act on the basis of a mere relationship by blood or marriage and prefer seeking to establish an assumption of responsibility by the defendant (R v Stone and Dobinson).

Fourthly, the defendant does an act which makes the victim dependent upon his further assistance. For example, by staying with a victim who took an overdose, providing her with first aid and support, the defendant assumes responsibility for the victim’s fate and is therefore obliged to summon further help had his attempts to rescue failed (R v Sinclair and Johnson). In this case, the first defendant, Sinclair, was held liable for the death of his friend who took an overdose. Sinclair’s responsibility for the victim was based on their close friendship and the fact that Sinclair decided to stay with the victim once he realised that her life was in danger. On the contrary, the second defendant, Johnson, hardly knew the victim and decided to leave prior to fully realising the threat to the victim’s life. As a result of the recent case-law, the line between help which does not burden the defendant with any legal obligation to try to save the victim’s life, and assistance which leads to criminal liability, has been blurred. For example, in R v Evans, the defendant was held not to be under a duty to act by merely putting her half-sister in a recovery position and taking turns to check on her condition.

Finally, by creating a dangerous situation the defendant becomes obliged ‘to take measures that lie within one's power to counteract a danger that one has oneself created, if at the time of such conduct one's state of mind is such as constitutes a necessary ingredient of the offence’ (Lord Diplock in R v Miller). It was further clarified that for the duty to arise the defendant knew or ought to have known of the danger he created (R v Evans).

Consequently, there are very limited categories of omissions in which a duty to act arises, since English law aims to protect individual autonomy. In contrast, civil law systems prefer social responsibility and therefore have a long history of Good Samaritan Laws.

French duty to rescue

The French Penal Code has become an important example for other European countries to follow in their introduction of a statutory duty to rescue. Article 63(2) of the Penal Code states:

‘Any person who voluntarily fails to render assistance to a person in peril, which he or she could have given either personally or by calling for help, without personal danger or danger to others, is guilty of an offence and may be punished by imprisonment from three months to five years or by a fine of 360 francs to 20,000 francs or both.’

The impact of this law upon the public in France radically differs from the current piece-meal law in England and Wales. The main difference is in the absence of any relationship between the witnesses and the person in peril in French law. Consequently, people in France are obliged to make an effort to save the life of a drowning stranger. However, this duty is limited to the extent of one’s capability and avoiding putting oneself or other people in danger. For example, a non-swimmer would not be obliged to try to rescue a drowning person, but he would be expected to summon help by calling emergency services or shouting “Help!” Furthermore, people present at the scene must realise or ought to realise that a person is in peril; in the absence of mens rea (such as that they choose not to help despite the opportunity and lack of danger to oneself) conviction is doomed to fail. Nevertheless, such offences are a conduct crime; therefore, people are under a duty to act, even though they can no longer improve the victim’s situation. At the same time, no harmful consequences have to result from failure to act to convict a person for this offence. The French reform has been largely supported by English academics, in particular by Professor Ashworth and Professor Steiner in their article. In spite of the initiative for a change in English law, no such reform has been fully discussed.

Similar provisions can be found, for example, in the Criminal Code No. 140/1961 of the Czech Republic or in the Vermont Statute Title 12: Court Procedure, § 519.

Apart from the existence of a relationship, common law and civil law in Continental Europe differ in the requirement of the mental state of the defendant. It appears that in English law negligence suffices: the defendant merely ought to have known of the danger; however, civil law systems require actual knowledge of the danger or rather an intention not to help. Therefore, the mental threshold for the statutory duty to act seems higher. On the contrary, both systems recognise that there should be no conviction if the defendant attempts to help but fails to provide appropriate assistance which may result in death of the victim. Nevertheless, unless the defendant acts negligently, he will not be convicted under either system.

The question which remains unanswered is why countries sharing the same Continent and common history have such a different approach to the law on omissions.

Individual autonomy vs. social responsibility

The main reason behind the presence or absence of a duty to act in different European systems lies in the theoretical and philosophical justifications of the law.

Historically, English law has been founded on the principle of individual liberty involving, among others, the harm principle introduced by John Stuart Mill and largely supported by the Law Commission. It allows people to do whatever they please as long as it does not harm others. By implication, people cannot be compelled to serve another, since that would unjustifiably limit their liberty. However, there has been a strong academic opposition against this principle on the basis of social and economic changes. It is rightly observed by Ashworth that people are becoming more dependent on each other and this should be reflected in the law by, for example, making people legally obliged to assist each other. Furthermore, it appears to be immoral not to help where one has the opportunity without exposing himself to danger. The majority of the public would also agree that the preservation of human life should prevail over the evil of interfering with individual liberty. As a consequence, protection of individual liberty no longer reflects our present social needs and it has become unacceptable for us to allow people to do nothing in situations where they can save a life.

As a result of this change in English society, the obligation of social responsibility, which is the prevailing theory in Continental Europe, has been largely supported by English academics, for example by Professor Ashworth. The shift from the theory of liberalism to social responsibility would have a great impact on many areas of the English criminal law. Therefore, a rather gradual change in some laws, including the law on omissions, could be expected. As a consequence of a statutory reform introducing a general duty to act into English law, an improvement in our common social values and strengthening of our characters could be anticipated.

The conflict of two contrasting theories of criminalisation, in particular liberalism in English law and the obligation of social responsibility in French law, can be seen in the law on omissions where they cause major discrepancy. However, it cannot be argued without further analysis that the introduction of a duty to act in English law would bring positives only.

Distinction between acts and omissions

The main convenience in introducing a general duty to act consists in removing the difficulty in distinguishing between acts and omissions which has become increasingly unpredictable in the recent case-law, i.e. R v Speck, Environmental Agency v Empress. This distinction remains crucial in English law, since criminal liability for omissions needs to be established under one of the five categories. However, even though many States do not distinguish between positive acts and omissions for the purpose of conviction, it is taken into account in the sentencing trial as omission offences usually benefit from shorter sentences.

Heroism, luck and control

Despite the fact that a statutory duty to act might be helpful in removing the distinction between acts and omissions, it still presents theoretical and practical issues in law.

Firstly, it could be argued that requiring a person to help another in peril asks for a certain degree of heroism, since he would always face some degree of danger to himself.

Secondly, it appears that criminal liability for omissions is based purely on bad luck – being at the wrong place at the wrong time. The defendant has usually done nothing to burden himself with a duty to help a stranger, such as assuming responsibility for or having a special relationship with them. They simply happened to be at the scene of another person’s peril and this made them obliged to render assistance.

Thirdly, it is rightly argued by Husak (D.N. Husak, Philosophy of Criminal Law (1987)) that we have less control over omissions than over positive acts, since control over a consequence is typically exercised by positive action. For example, we have full control over intentionally killing another person, but far less control is exercised when we fail to rescue a drowning person. In both instances the outcome is the same – the victim dies and the defendant is to be blamed for her death.

These arguments (the role of heroism, luck and control in the case of  a new offence of failing to act) raised by the opponents of an English reform are unfounded and outdated.

For example, heroism seems to be commonplace in the criminal law since the decision of R v Howe in which Lord Hailsham gave the majority judgment that a reasonable person of ordinary fortitude is capable of acts of heroism. It appears to be acceptable to impose higher requirements of bravery upon the ordinary public in English law.

Further, bad luck of being at the wrong place at the wrong time can easily be interpreted as moral luck, since the defendant not only happened to be at the place, but they also realised the danger to another person and their capacity to help without jeopardising their own life, yet they voluntarily decide not to render any assistance. Their mental state has become affected and their guilty mind calls for the intervention of the criminal law.

Finally, although we have less control over omissions, the statutory offence of failing to act is not a result crime; by implication the fact whether the victim was saved or not is mostly irrelevant for conviction. The important point is whether the defendant had the opportunity to act, but failed to do so without any valid excuse.

Conclusion

Despite a number of other practical issues concerning, for example, punishing a large crowd witnessing a person in peril or giving the judiciary too broad a discretion to decide on when there is or is not a duty to act, there appears to be no substantial arguments against introducing a statutory duty to act in English law.

On the contrary, such a reform would significantly contribute to the harmonisation of the national laws of European countries without having to pass a new EU Directive or Regulation. It could be seen as a natural development of the criminal law to reflect the close connection between European Member States and the evolving European morality and responsibility for other EU citizens.

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