In what circumstances do you have a duty to take action to prevent harm occurring to another? What I mean by this is in what circumstances might your failure to take action to prevent harm to another leave you committing a criminal offence?
For example, if your elderly neighbour was ill in bed would
you have any obligation to ensure that he suffers no further harm? Would it
make any difference if you had never spoken to your neighbour in the ten years
you had lived next to each other? On the other hand, how might your obligation
differ if you were in the habit of popping in every day to check that
everything was okay?
If you think there is an obligation, just how far does it
extend? Would it extend to no more than calling his doctor? Would your
obligation to act go beyond this and if so how far beyond?
The Position In English Law
In English criminal law offences are usually constituted by
positive actions, although there are a range of exceptions where an offence
involves not doing something. These
are sometimes referred to as crimes of omission as opposed to crimes of
commission.
However, as a general rule there is no duty to act in
English law. This raises a very interesting moral question: In what
circumstances do you have a duty to prevent harm occurring to other people?
As I said above, the general rule in English law is that
there is no duty to act. In the words of Lord Diplock in the case of R v Miller 1983 “The conduct of the
parabolical priest and Levite on the road to Jericho may have been deplorable,
but English law has not so far developed to the stage of treating it as
criminal.”
Diplock was referring, of course, to the parable of the Good
Samaritan. There have been calls for some time for English law to adopt a Good
Samaritan principle, which would effectively impose on people a duty to act in
certain circumstances. The law has so far refrained from so doing.
There are, though, circumstances where a duty to act is
recognised. There are a small number of circumstances where the law recognises
that an individual or individuals will be under a duty to act even though other
people in general would have no such duty.
The example that is often given here is that of a man who
sees his young son drowning in a shallow pool. The man has a duty to act to
save his drowning child. The father has both a moral and legal obligation to
act. On the other hand, other members of the public have no such legal duty –
though the moral duty is still present. To reinforce the point that there is no
legal obligation to act, the shallowness of the pool and the negligible risk of
harm to anyone taking action is emphasised.
There are generally believed to be four circumstances where
there exists a duty to act. First, where
there is a legal duty to act (usually imposed by statute) on a person (for example
on parents towards their children). Second, where a special relationship exists
between two people. Third, where one person has voluntarily assumed a duty to
act towards a second person. Fourth, where one person has assumed a duty by
contract to act with regard to a second.
Reliance upon Another
In all of these circumstances, there is a common theme. The
common theme is that one person is in a position where he relies, and is entitled to rely, on a second to
look after his well-being in some way. The precise nature of what is meant by well-being
will vary from circumstance to circumstance. In some cases it may well be that both
reliance and the obligation to act are reciprocal.
For example, a husband and wife, because of the relationship
that exists between them, are each entitled to rely upon each other for
support, comfort and protection. Each spouse also has an obligation to act to
prevent harm occurring to the other.
This reciprocal relationship may arise simple because two
people assume the responsibility of looking after each other. More often than
not, this responsibility will be assumed where people live together, but living
together may not be an essential ingredient. Although this point may never have
been decided in the courts, it could well exist between two neighbours who each
assume the responsibility of looking after each other.
It is not uncommon for the assumption of responsibility to
care for someone to lie much more heavily on one person than the other. Responsibility
may be assumed by more than one person (several members of one family, for
instance). The elderly relative who lives with her family is much more likely
to be the one who relies on the other members of the family for support and
protection rather than the other way around.
Moreover, it is much more likely that a member of the family
may be called upon to act to prevent or reduce harm to an elderly relative
rather than the elderly relative doing the acting. In the usual course of events
this is true. However, a situation may well be conceived where a member of the
elderly relative’s family is at risk of harm and it is she (the elderly
relative) who bears the burden of having to act. Of course, the physical and mental health of
the elderly relative may place a lower burden on her in terms of what action is
expected than would be placed on a younger member of the family.
It is not possible to draw up an exhaustive list of
relationships, circumstances and combined relationship-circumstances that
entitle people to rely upon each other for such assistance, when this might be
required, that failure to provide the assistance would constitute a crime.
Equally, it is not possible to draw up a list of what actions the law might
require to be carried out. Again, this will vary with the relationship,
circumstances and the people involved.
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