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Criminal Law Assessment 2586 words (excluding bibliography) “‘Bad Samaritan’ laws are not favoured in England on two main grounds: that criminal law should not impose any one moral view on people; and that they would be impractical to enforce effectively and consistently. This is hypocritical, because cases like Brown also impose a moral view and create laws which are virtually unenforceable.” Discuss. Introduction A general principle of English law is that omissions are not criminalised. A person who acts as a ‘bad Samaritan’ in failing to aid another in danger will not, as a general rule, have committed any crime. There are, however, certain exceptions where the law imposes liability for omissions. The first exception covers statutory omissions liability, such as a driver failing to provide a breath sample under s.6(4) of the Road Traffic Act 1988. In addition, there are five common law exceptions. First, when a person has a duty to act arising out of contract, as illustrated in Pittwood.1 Secondly, a duty arising from a relationship, for example, parents having a duty to their dependant children.2 Thirdly, a duty arising from the assumption of care for another person. In Stone and Dobinson3 it was held that the defendants had a duty towards the sick relative living with them as they had assumed responsibility for her. Fourthly, a duty arising out of public office, such as in Dytham.4 Finally, a duty arises from the creation of a dangerous situation, for example, where a defendant accidentally sets fire to a mattress and, on noticing the fire, simply goes to sleep.5 English law is comparatively unusual in its refusal to criminalise omissions more widely. The reasons for this have been debated at length by judges and legal academics alike. In this essay, I shall argue that, whilst the law in respect of omissions is not as unenforceable as some would like to suggest, the position is hypocritical in that English criminal law is replete with crimes which impose moral views on people. Wrongfulness It is generally accepted that for conduct to be criminalised it must be wrongful and it must be necessary to criminalise it in order to stop it. Examining this first idea, there are three possible approaches for the law to take when deciding what to criminalise. Liberalism suggests that wrongful behaviour is only that which causes harm or serious offence to others (because individual autonomy should be protected). Legal 1

(1902) 19 TLR 37 For example in Lowe [1973] QB 702 3 (1977) QB 354. See also Instan [1893] 1 QB 450 and Gibbins and Proctor (1918) 13 Cr App R 134. 4 [1979] 3 All ER 641 5 Miller (1983) 2 AC 161. This was also followed in DPP v Santana Bermudez [2003] EWHC 2908 (Admin) and Evans [2009] EWCA Crim 650. 2

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moralism by contrast supports the idea that conduct can be wrongful purely because it is immoral. Paternalism on the other hand justifies the criminalisation of conduct if it harms others or the actor herself.6 In English law’s approach to criminalising omissions, liberalism has largely prevailed. As Clarkson explains, “English law, rooted in the tradition of individualism, has been loath to compel people to act”7 and the limited liability for omissions, explained above, reflects this. The justification for this approach is that the law should allow people to pursue their own ends and desires and that they have a right to do, or more accurately, not to do certain things.8 The problem with omissions liability is that the individual’s choice to act or not becomes affected by chance. For example, if I walk past a house on fire, I have not chosen to set it alight, it is purely by chance that it happened to be on fire as I walked past and yet because of that chance I would be in a situation where I would have no choice but to act, if omissions liability were imposed. The individual’s right not to act in this situation would be removed. This is a classic example of the liberal view of law, namely that the law should only interfere with individuals when it absolutely has to, in order to prevent serious harm or offence to others.9 The counter argument to this is that restrictions on individual autonomy are a necessary sacrifice given the benefit to society that would be conferred. After all, the individual is more likely to benefit from omissions liability than be harmed by it, because citizens have a duty to protect one another. Ashworth argues that “individuals tend to place high value on interpersonal contacts, relationships, mutual support and the fulfilment of obligations, and a society which values collective goals and collective goods may therefore provide a wider range of worthwhile opportunities for individual development.”10 Thus individual autonomy should be restricted so that the law does not allow immoral behaviour (such as leaving a house to burn down) that is damaging to the fabric of society – a legal moralist view. The crux of the issue is then how highly the law values the principle of individual autonomy against the benefit to society and the moral protection of those within our society. This tension is aptly illustrated by the case of Brown.11 This case involved a group of men willingly engaged in sadomasochistic homosexual sex who were convicted under s.20 and s.47 of the Offences against the Person Act 1861, despite the fact that they had consented to their injuries. The issue before the House of Lords therefore was whether such acts could be consented to under the criminal law. Reading the judgment, the tone of the court’s decision largely conveys one of disgust at the behaviour of the defendants. Nonetheless, their Lordships were divided as to the approach the law should take. The majority (by 3:2) adopted a legal moralist view, holding that sadomasochistic behaviour, consensual or not, was not the kind of behaviour that could be condoned by society and to allow it would be 6 CMV Clarkson and HM Keating, Criminal Law Text and Materials (Sweet & Maxwell, 1998) , p.4. 7 CMV Clarkson, Understanding Criminal Law (Sweet & Maxwell, 2001), p.50. 8 A Ashworth, Principles of Criminal Law (Oxford University Press, 1999), p.49. 9 JS Mill, On Liberty (Penguin, 1982). 10 A Ashworth, ‘The Scope of Criminal Liability for Omissions’ (1989) 105 LQR 424, at 430. 11 (1994) 1 AC 212.

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damaging to the fabric of the community. The restriction on individual autonomy could therefore be justified in the public interest. As Lord Templeman explains: “society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised.”12 In so stating, Lord Templeman endorses the view that conduct is wrongful enough to criminalise if it is immoral. Lord Devlin – a vocal advocate for legal moralism – once argued that if society regards conduct as “a vice so abominable that its m ere presence is an offence…I do not see how society can be denied the right to eradicate it.”13 The majority of the House Lords in Brown appeared to believe sadomasochism to be such a vice. This case demonstrates that the criminal law often adopts a legal moralist view, and the moral argument against the criminalisation of omissions is therefore hypocritical. Necessity The second criteria for criminalising conduct, that it must be necessary to criminalise it in order to prevent or condemn it, is also an issue in the debate on omissions liability, and one again raised by Brown. The criminalisation of omissions by other states demonstrates the facility of the argument that such offences are unenforceable. In a number of other jurisdictions, the criminal law either adopts the same approach as the English common law – in making failure to act the actus reus of a particular crime such as Miller14 being convicted of arson – or they have introduced an entirely new crime of ‘failing to aid’. This latter idea is most clearly illustrated by Article 223 of the French Penal Code states that it is an offence for “A person who voluntarily neglects to give, to a person in peril, assistance which could be rendered without personal risk or risk to others.”15 Concerns have been raised that crimes of failing to act can only ever be drafted in vague terms to cover all possible scenarios. This makes the law unenforceable because it creates uncertainty for citizens in terms of giving them fair warning of what conduct will amount to a crime, and uncertainty for judges and juries. Such crimes are therefore contrary to the principle of nullem crimen sine lege.16 Many also fear that vaguely worded offences and the general criminalisation of omissions would raise the possibility of prosecutorial abuse since a person could be prosecuted for failing to act when in fact it may be unfair to expect them to have done so. However, as Geis explains “all laws can be abused, but there seems no reason why a failureto-aid statute would be applied malevolently and unreasonably any more than any other statute”.17 A further concern about the enforceability of omissions liability relates to determining who should be liable. For example, if in respect of a child drowning there are 30 12

ibid at 237. P Devlin, The Enforcement of Morals (Oxford University Press , 1965), p.17. 14 ibid. 15 Cited in Ashworth, supra note 8, p.50. 16 Ibid, p.70. 17 G Geis, ‘Sanctioning the Selfish, The Operation of Portugal’s New ‘Bad Samaritan’ Statute’ (1991) 1 International Review of Victimology 297. 13

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witnesses, none of whom step in to help, should the law prosecute all 30? Many would argue that it would be impractical to find and prosecute everyone who was witness to such an event and was capable of helping. However, evidence suggests that this has not stopped laws from being enacted in other circumstances, as Hughes points out “in a riot, for example, it is difficult if not impossible to bring all the participants to book, but this has never been considered an obstacle to trial and punishment of those who can be reached”.18 This would suggest that whilst omissions may at times be difficult to enforce they are not totally impossible and indeed in many ways would be easier to enforce omissions liability than laws regulating the conduct occurring in Brown. The events that the defendants were engaged in, in Brown, will generally be conducted in private and behind closed doors making them near impossible to detect, particularly in the absence of a victim. Omissions liability may be more enforceable than this as omissions may happen more often in public. The common law presently covers close relationships where the victim is in danger in private, such as in Stone and Dobinson.19 The extension of this duty to cover strangers means it is more likely to cover events in public: after all, how often do people have strangers in their house in positions of danger? This means that general omissions liability may actually be more enforceable than the current limited liability imposed in English law. Moreover, enforceability does not seem to have created problems in jurisdictions which impose a general duty to act.20 There is a question, however, about whether (un)enforceability really matters. It has been argued that the role of law (regardless of its enforceability) is to make a moral statement about society’s values and that in doing so the law can change behaviour and morality. A good example of this would be the drink driving laws where it is reported that “the perceived risk of apprehension is at least as and probably more important than the severity of the punishment”,21 and where attitudes towards drink driving appear to have been changed by its criminalisation. The case of Brown clearly represents a moral statement against sadomasochism (regardless of whether society agrees with this statement). In arguing for the imposition of omissions liability, Clarkson suggests that unenforceability is not hugely important as such a crime’s “very existence on the statute book would have the symbolic value of underwriting the importance that ought to be attached to the value of human life and bodily safety – even of strangers22”. It therefore seems folly to state that omissions should not be criminalised on the basis that the criminal law should not impose a moral view. The criminal law does impose a moral view; its very purpose is to set the moral standard by which members of society are expected to live. The more important issue is about which moral view it chooses to impose, depending on how highly it values the public interest over the rights of the individual. Criminalising omissions through a failure-to-aid statute should, in principle, be welcomed as it is important that the criminal law establishes 18

G Hughes, ‘Criminal Omissions’ (1958) 67 Yale Law Journal 590 at 634. (1977) QB 354. 20 Geis, supra note 17. 21 R Light, Criminalizing the Drink-Driver (Dartmouth, 1994), p.132, although cf H Packer, The Limits of the Criminal Sanction (Stanford University Press , 1968), p.42. 22 Clarkson, supra note 7, p.54. 19

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what society values and what it does not. Society will often look to the law to set moral standards and even in its failure to criminalise conduct, a message is conveyed that suggests such conduct will be condoned. The criminal law should send the message that it is to be expected that everyone who can will help a fellow human being in danger, since human beings are interdependent.23 The supposed unenforceability of the law is thus outweighed by the symbolic value of omissions liability. This same argument could be used in defence of the Brown judgement – that its unenforceability is less significant than its moral statement – however, I would suggest that even its moral statement is wrong. Restrictions on individual autonomy in relation to omissions liability can be justified by the fact that such restrictions (often limited in themselves, for example, calling the emergency services can be sufficient to exonerate) will probably save the life of someone in peril. In the case of Brown, the limitation of autonomy affords no such benefit other than to the minds of the Lords who wish to condemn behaviour they are obviously repulsed by. Clearly in relation to corrupting minors the situation is different and society has responsibility to protect such people, but in the case of consenting adults, none of whom suffered permanent injuries, the judgment by the Lords seems homophobic (especially when compared with Wilson24) and is “obnoxious to liberal thought.”25 It is the same attitudes shown in Brown that allowed homosexuals to be victimised for so long and blasphemers to spend time in prison for daring to speak out against God. The role of where to draw the line in criminal law will always be hotly debated and is a very difficult issue to decide. In my view, the line is drawn in the wrong place in relation to Brown and in relation to omissions liability. Conclusion I have demonstrated in this essay that the arguments used against a more general criminalisation of omissions than is currently adopted in English law do not stand up to scrutiny: the claim that requiring individuals to act would unjustly infringe on their autonomy is outweighed by the symbolic and moral importance of having a criminal law which enshrines the idea that society requires cooperative human beings to work together. Furthermore, the argument is hypocritical given that the criminal law already imposes moral views on individuals in cases where the consequences are much less severe than failing to act where a person is in danger. In respect of sadomasochism, for example, the courts are happy to run rough-shod over individual autonomy. Similarly, the claim that a general duty to act is unenforceable is also weak, and as I have shown, does not stop the adoption of criminal law in other contexts when enforceability might also be a concern.

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Hughes, supra note 18, at 634. (1996) 3 WLR 125. 25 G Williams, ‘Authoritarian Morals and Criminal Law ’ (1966) Crim.L.R. 132 at 135. 24

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Bibliography

Primary sources Brown (1994) 1 AC 212 DPP v Santana Bermudez [2003] EWHC 2908 (Admin) Dytham. [1979] 3 All ER 641 Evans [2009] EWCA Crim 650. Gibbins and Proctor (1918) 13 Cr App R 134 Instan [1893] 1 QB 450 Lowe [1973] QB 702 Miller (1983) 2 AC 161 Pittwood (1902) 19 TLR 37 Road Traffic Act 1988 Stone and Dobinson(1977) QB 354. Wilson (1996) 3 WLR 125 Secondary Sources A Ashworth, Principles of Criminal Law (Oxford University Press, 1994) A Ashworth, ‘The Scope of Criminal Liability for Omissions’ (1989) 105 Law Quarterly Review 424 CMV Clarkson, Understanding Criminal Law (Sweet & Maxwell, 2001) CMV Clarkson and HM Keating, Criminal Law Text and Materials (Sweet & Maxwell, 1998) P Devlin, The Enforcement of Morals (Oxford University Press, 1965) G Geis, ‘Sanctioning the Selfish, The Operation of Portugal’s New ‘Bad Samaritan’ Statute’ (1991) 1 International Review of Victimology 297 G Hughes, ‘Criminal Omissions’ (1958) 67 Yale Law Journal 590 R Light, Criminalizing the Drink-Driver (Dartmouth, 1994) JS Mill, On Liberty (Penguin, 1982). H Packer, The Limits of the Criminal Sanction (Stanford UP, 1968) G Williams, ‘Authoritarian Morals and the Criminal Law’ [1966] Criminal Law Review 133

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