Introduction
In the criminal law of England and Wales, the general principle is that a person cannot be held liable for a failure to act. This reflects a traditional liberal view of the law, which prioritises individual autonomy and freedom from state compulsion. However, this position is not absolute. The courts have carved out numerous exceptions where a duty to act is imposed, and a failure to fulfil that duty can result in criminal liability, even for serious offences such as homicide. This has led to an enduring debate about whether the law should go further and impose a general duty to rescue individuals in peril. This paper seeks to explore this issue by addressing the research question: should English law impose a general duty to rescue, and what are the arguments for and against the criminalisation of such omissions? This paper will argue that while the moral arguments for a general duty are compelling, the practical and philosophical objections to its imposition mean that the current approach, based on specific, recognised duties, provides a more certain and appropriate framework for the criminal law.
Literature Review
The academic debate concerning liability for omissions is often framed as a conflict between two opposing philosophical standpoints. The first, a ‘communitarian’ or ‘social responsibility’ view, is most prominently championed by Andrew Ashworth. Ashworth (1989) argues that the traditional distinction between acts and omissions is not as clear-cut as it seems and that a society, by its nature, creates a network of mutual obligations. He suggests that the law should recognise a general duty to render assistance to another citizen in peril, provided it can be done without unreasonable cost or danger. This view places the value of life and physical safety above the unqualified right of an individual not to be compelled to act.
In direct opposition is the classical liberal or ‘autonomy’ perspective, defended by scholars such as Glanville Williams. Williams (1991) argues that the criminal law’s primary function is to prevent individuals from actively causing harm to others, not to enforce a moral duty to be a ‘Good Samaritan’. Forcing an individual to act, under threat of criminal sanction, is seen as a significant infringement on personal liberty. This view emphasises that an individual should be the master of their own choices, and a failure to help, while potentially morally reprehensible, is not the same as actively causing harm and should not attract the sanction of the criminal law. While this foundational debate is well-established, this paper aims to synthesise these theoretical arguments and analyse them in the context of the practical challenges of drafting and enforcing a general duty to rescue, an area which continues to present significant hurdles for legislators and courts.
Methodology
This research paper employs a doctrinal and theoretical legal analysis methodology. The approach is qualitative, focusing on the interpretation and evaluation of legal principles and philosophical arguments. The primary data sources consist of key case law from England and Wales, which establishes the current legal position on liability for omissions. Cases such as R v Miller [1983] 2 AC 161 and R v Evans [2009] EWCA Crim 650 will be analysed to understand how the courts have incrementally expanded the scope of duties to act. Secondary sources form a critical part of the research, comprising academic journal articles, particularly the influential works of Ashworth and Williams, and leading criminal law textbooks. These sources provide the theoretical framework for the analysis. The methodology involves synthesising these primary and secondary sources to evaluate the coherence of the current law and to assess the competing arguments for and against legal reform in this area.
Findings and Analysis
The Current Law on Omissions in England and Wales
The starting point for the criminal law in England and Wales is that there is no general liability for an omission, or a failure to act. A person can, without legal consequence, watch another drown in a shallow puddle. However, this principle is subject to a significant and expanding list of exceptions where the law does impose a duty to act. Where such a duty exists, a failure to act can satisfy the actus reus element of an offence. The main categories of duty are established by common law and statute.
Statutory duties are clear and specific. For example, section 6 of the Road Traffic Act 1988 makes it an offence to fail to provide a specimen of breath when required to do so by a police officer. Similarly, the Children and Young Persons Act 1933 imposes a duty on those with responsibility for a child to provide adequate care, and a failure to do so is a criminal offence.
The common law has been more incremental in its development, establishing duties based on the specific relationship between the defendant and the victim. These duties include:
- Contractual Duty: Where a person is under a contractual obligation to act, a failure to do so can lead to criminal liability. In R v Pittwood (1902) 19 TLR 37, a railway gatekeeper who failed to close the gate, leading to a fatal collision, was convicted of manslaughter. His duty was owed to his employer, but the court held it could form the basis of criminal liability towards the public.
- Duty Arising from a Relationship: Certain relationships, such as that between a parent and child, are recognised as imposing a duty to act. In R v Gibbins and Proctor (1918) 13 Cr App R 134, a father and his partner were convicted of murder for deliberately starving their child to death. The court held that both had a duty to care for the child.
- Voluntary Assumption of Care: A duty can be imposed on a person who voluntarily undertakes to care for another who is unable to care for themselves due to age, illness, or infirmity. The landmark case is R v Stone and Dobinson [1977] QB 354, where two defendants of low intelligence were convicted of manslaughter after they took in the victim, their relative, who subsequently died from neglect. The Court of Appeal held that by taking her in and making some ineffective efforts to care for her, they had assumed a duty of care.
- Duty Arising from Creating a Dangerous Situation: This is a more modern development. Where a person creates a dangerous situation, they come under a duty to take reasonable steps to avert that danger. In R v Miller [1983] 2 AC 161, a squatter who accidentally set fire to a mattress with a cigarette did nothing to put it out and simply moved to another room. The House of Lords held that his failure to act could form the actus reus of arson once he became aware of the danger he had created. This principle was extended in R v Evans [2009] EWCA Crim 650, where the defendant supplied her half-sister with heroin. After the sister self-injected and showed symptoms of an overdose, the defendant and her mother failed to seek medical help for fear of getting into trouble. The Court of Appeal upheld a conviction for gross negligence manslaughter, holding that the defendant had a duty of care because she had "created or contributed to the creation of a state of affairs which she knows, or ought reasonably to know, has become life-threatening".
This incremental expansion shows a judicial willingness to impose duties where it seems just to do so, moving the law closer to a position of social responsibility, albeit on a case-by-case basis.
Arguments for a General Duty to Rescue
The primary argument for introducing a general duty to rescue, often termed a 'Good Samaritan' law, is based on morality and the concept of social responsibility. As Ashworth (2001, p. 150) contends, the value of life should be considered a fundamental good, and a legal system that protects it only from active threats but not from avoidable omissions is incomplete. The argument is that basic human solidarity demands that a person should take minimal steps to aid another in serious peril. Watching a child drown in a shallow pool is a moral outrage, and proponents argue that the law should reflect this by imposing a sanction. The law, in this view, has an expressive function; it should signal what is considered fundamentally unacceptable conduct within a community.
Furthermore, several other jurisdictions, particularly in continental Europe, have successfully implemented such laws. The French Code Pénal (Article 223-6), for example, makes it a criminal offence for a person to fail to render assistance to a person in peril, provided they could do so without risk to themselves or others. The existence of these laws demonstrates that the concept is not legally unworkable and that a society can prioritise a duty of mutual assistance without collapsing individual liberty. These laws typically require only what is reasonable – for example, calling the emergency services – and do not compel individuals to perform heroic acts or place themselves in danger.
Arguments Against a General Duty to Rescue
The case against a general duty rests on two main pillars: the protection of individual liberty and significant practical difficulties. The liberal argument, advanced by Williams (1991), is that the criminal law should not be used to enforce morality. Its proper role is to prevent citizens from causing harm, not to compel them to do good. Forcing a bystander to intervene, even in a minimal way, is an infringement on their autonomy and their right to be left alone. This view holds that while failing to rescue may be a moral failing, it is not the role of the criminal law to punish every moral wrong. Individuals should be free to choose their own actions, and the line is crossed only when their actions positively harm another.
The practical objections are also substantial. Firstly, there is the problem of causation. In a typical crime, the defendant's act causes the prohibited result. With an omission, the defendant has not caused the peril; their failure to act has merely allowed it to continue. If a crowd of people watches someone drown, who is liable? Is it every person who failed to act? Is it only those who could swim? This "multiplicity of offenders" problem creates a significant challenge for prosecution (Simester et al, 2019).
Secondly, drafting a statute with sufficient certainty would be extremely difficult. Key terms such as "peril," "reasonable assistance," and "without risk" are inherently vague. This could lead to uncertainty for citizens, who may not know when the duty applies, and could encourage a culture of defensive intervention or, conversely, a reluctance to get involved for fear of not doing enough and facing prosecution. The ambiguity could violate the principle of legality, which requires that criminal laws be clear and predictable. The case of Stone and Dobinson is often criticised for imposing liability on individuals who were arguably incapable of meeting the standard of care required, highlighting the risks of applying broad duties to individuals with varying capabilities.
Conclusion
The debate over criminalising omissions and introducing a general duty to rescue strikes at the heart of the purpose of the criminal law. The moral argument that a civilised society should expect its members to offer minimal assistance to those in grave danger is powerful. However, the traditional liberal emphasis on individual autonomy and the significant practical challenges of defining and enforcing such a duty cannot be easily dismissed.
This paper concludes that the current approach of English law, while imperfect, remains the most viable option. The incremental expansion of duties through the common law, such as the duty recognised in R v Evans, allows the courts to respond to an evolving sense of social responsibility in specific, deserving cases. This case-by-case development, based on established relationships or the defendant's own conduct in creating the danger, provides a more certain and just basis for liability than a vague and potentially over-reaching general duty. While a 'Bad Samaritan' law might seem morally attractive, the risk of infringing on individual liberty and creating legal uncertainty suggests that the law should tread cautiously. The current framework, which punishes failures to act in specific and clearly defined circumstances, strikes a defensible, if uneasy, balance between the competing values of social responsibility and individual freedom.
References
Ashworth, A. (1989) 'The Scope of Criminal Liability for Omissions', Law Quarterly Review, 105(Jul), pp. 424-459.
Ashworth, A. (2001) 'Social Responsibility and the Expressive Function of Criminal Law', in R.A. Duff and S.P. Green (eds.), From Social Contract to Social Contract: A New Philosophy of Law. Oxford: Hart Publishing.
R v Evans [2009] EWCA Crim 650.
R v Gibbins and Proctor (1918) 13 Cr App R 134.
R v Miller [1983] 2 AC 161.
R v Pittwood (1902) 19 TLR 37.
R v Stone and Dobinson [1977] QB 354.
Simester, A.P., Spencer, J.R., Sullivan, G.R. and Virgo, G. (2019) Simester and Sullivan's Criminal Law: Theory and Doctrine. 7th edn. Oxford: Hart Publishing.
Williams, G. (1991) 'Criminal Omissions – the Conventional View', Law Quarterly Review, 107(Jan), pp. 86-98.
