At first look, we’re talking about omissions; but that’s not the whole picture. Indeed, the true nature of the question resides primarily in what I’m going to argue is our ‘social mould’. The classic omissions scenario of the baby drowning in a puddle covers one aspect of this, but we’ll argue about that later. Our first concern should be the nature of harm, and it seems to me to fall into two categories.
The first is the personal harm touched on by the aforementioned scenario. Second to that however, is the impersonal harm that is to be expected, almost requisite, in the capitalistic nature or our society. A business can cause harm through omissions. Businessman A could tell Businessman B about information he has received about a downturn in this or that, but we expect him to act in a way that is competitive. It’s not immoral, indeed it could be said that it carries utility. Individuals in society are not in competition with each other we suppose, but does this mean they should be obliged to help each other?
This is where the idea of the ‘social mould’ comes in. The current criminal law of England discriminates between acts and omissions. The current overriding principle, put simply, is that one should not be held accountable for something one does not do, as to rule otherwise would be an unreasonable limitation on personal freedom. I would argue, however, that this is something of an artificial definition. We can imagine the criminal law as a mould on a lump of clay. There is plenty of space for the clay in the middle. When one exceeds its limits, however, irrelevant of on which side of the mould this is, one is outside of the law and hence deserving of sanction. Thus, A murders B and becomes part of the external clay. Similarly, because the shape of society expects mothers to care for their children, Mother A omits to care for Baby A and again becomes part of the external clay. This particular duty has since been enshrined in the Children and Young Persons Act 1933.
The shape of the mould is dictated – or should be dictated – by duty. This is not the same as duty to act, but is more abstract. It returns us to one of the more fundamental principles of Society, that of the social contract. Though a detailed discussion of the social contract is outside of the remit of this essay, it is appropriate to note that, as individuals functioning in a society of multiple interests and aims, the price we pay for autonomy is duty. Given the contour of this arrangement – a bargain between individual and society – I would argue that our principle duty is to society as a collective, rather than individual to individual. Thus, we sell part of our autonomy in exchange for social welfare, obliging us to follow the law and, generally, be responsible for our actions.
It seems evident that there is a conflict between the typical ‘acts v omissions’ approach and this, more intuitive societal approach. In R v Speck for instance, in which a man was held liable for allowing an eight year old girl to leave her hand on his penis, causing him to get an erection. There was no act, so the Lord Chief Justice, sitting in the Court of Appeal, had to crowbar in a rather artificial reasoning that the omission counted as an invitation which was an act. Judges have to use interpretation to find a justification to fit with their intuitive knowledge of what society requires. The mould argument would have shown clearly that, in not stopping the girl, Speck had acted in a way contrary to his social contract which, and this is the proper reasoning in the case, imposes a duty on adults towards children.
Again, we see that duty towards what society expects is fundamental. At first look however, we can find a number of contradictions. R v Miller, for example, shows a set of circumstances in which it seems indefensible to excuse from liability on the grounds that we have duties only towards society, not other individuals. This would rubbish Lord Atkins’s ‘neighbour principle’. English law takes the right approach here; the current law is that one who creates a dangerous situation is obliged, so far as he can, to put it right. Miller created a dangerous situation by causing a fire in his bed, but instead of remedying the situation, merely ignored it. He could be said to be in breach of his social contract given how we described the contract earlier: we exchange autonomy for welfare. Surely then, our duty towards society in this respect sometimes obliges us to see that the contract is upheld generally. If the results of our exercising our autonomy become a threat to anyone’s welfare, we are obliged to rectify this, just as we would expect the same. This is not the same as requiring individuals to intervene against crimes and the like, as this prevents autonomy being exercised at all.
Current law requires the individual to act in two more circumstances. Where a statute imposes a duty, we suppose that the duty is based on the rationale that the social contract requires us to abide by law and its sources. Secondly, we are obliged to act if we have a contractual obligation. Indeed, we could say that the entirety of this argument ha been based on this point. Specifically however, we can say that our autonomy gives us the power to enter into our own agreements with other individuals, independent of our social obligations. This was the case in R v Pitwood in which D was under a contractual obligation to operate a level crossing, which he omitted to do. At this point, it is proper that the criminal law intervene.
We should look now at the arguments positively in favour of imposing omissions liability and how they can be rectified or rejected in the scope of this argument.
The main argument in favour of omissions liability is moral. It would be immoral to allow harm to come to someone if it was easily prevented. The weak counterargument is that it is more culpable to act to cause harm than to allow harm to happen. The question we must ask here is whether it is appropriate to allow morality to influence the criminal law.
In the words of Feinberg: “[it] can be morally legitimate to prohibit conduct on the ground that it is inherently immoral…” Graham Virgo describes morality as a ‘slimy slippery concept’. I agree with Mr. Virgo in the sense that we must be mindful of moral authority. Doubtlessly, the social mould idea is based on common social thought and this has an overlap with morality but we must be careful to check the sources of our morals. English criminal law was, and arguably still is, heavily influenced by Canon Law and Christian morality and in the pluralist social landscape of today where this is less relevant (certainly less universal), I would state that fairness and adherence to this social contract should be our primary ‘moral’.
Airedale NHS Trust v Bland and ReA (Conjoined Twins) are examples of this. Traditional religious morality would dictate that switching off the life support in Bland amounted to murder on the moral basis of the sanctity of life. Lord Keith of Kinkell argued instead for what was in the patient’s best interests, following the “common sense” approach that modern society, based on a modern contract, would expect. Indeed, the social approach could be said to be particularly applicable here in a practical sense: the equipment may have been necessary for other patients to whom society owes a duty.
ReA (Conjoined Twins) introduced a defence of ‘better of two evils’. It would have been inconceivable to impose liability on a doctor for failing to save the life of one of the twins at the cost of the other on purely religious or moral grounds. The doctors’ duty was to the state; they had to save as much life as possible on the grounds of common rationality.
A final point to make on the role of rationality concerns one of the primary principles of the criminal law itself. In making something criminal society makes a grand statement. It is a statement of condemnation which is punishment in itself. This is known as censure and it is a purely societal phenomenon. Though society imposes actual penalties, it is this censure that marks a definition of criminalisation. However, given that it is societal in nature, moral condemnation would have a very similar, if not identical, character. If one does something that is morally indefensible, regardless of whether it is criminal or not, one receives censure whether a court has handed it down or not.
Implementing a change in policy would be difficult. ‘Reasonableness’ would certainly come into it. What happens if a person does not know he could have prevented the harm? What if he is merely nervous, as is our human entitlement?
We must again reflect on the current state of play. If we accept the social mould argument based on duties, we must recognise that the common attitude toward the criminal law is that it is based on “Do Not” as opposed to “Do”. It would be, in my view, a fundamental and unfair upheaval of centuries of legal continuity to suddenly expect members to behave in a massively changed respect. The constitution of relationships with one another would change beyond recognition.
The thread of this argument has leaned in favour of the current state of English law. I have argued that, despite certain artificial mechanisms of defining acts and omissions, Judges have intuitively worked on a system that accords primacy to social expectation based on the social contract, and contracts and statutes provide appropriate provision for omissions given that these duties are based on voluntary acts. This is, in itself, a conclusion. It seems that English criminal law does make satisfactory provision where a person fails to prevent harm when he could have done so, because that’s not the mould in which he should be expected to operate; it’s not what he signed up for.
Grahame Robert Anderson,