Should there be a duty to assist crime victims in criminal law?

The murder of Richard Whelan on a bus in London on Friday 29th July 2005 slipped by in the news coverage as another senseless death in a month of such tragedies. But it illustrates a central problem with the legal position on the duty to assist crime victims in the UK. One of the onlookers, who stepped in to help the injured man, wrote the following week in the Guardian Newspaper of her surprise at the reactions of the other passengers, most of whom left the scene and did not help the victim;

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‘I find it astonishing that no one else approached an injured man in this situation. I suppose people might not have thought it was life-threatening. And I suppose some people might have been squeamish. But nevertheless, there was blood, and a guy injured, and you were there. You don't just leave him, and leave someone else to deal with it…. Of all the people who were on the bus, all of us potential witnesses in a murder trial, only five passengers, plus the driver, went to the police station to make statements.’

While as moral individuals we may consider that those who fail to help victims of crime are morally reprehensible and deserving of our contempt, it is at present impossible to punish those who walk away. The injunction to ‘love thy neighbour’ is one which UK law does not enforce so far as one might imagine. There is currently no duty to aid others, whether victims of crime or accident. As Lord Diplock commented in R v Miller,

‘The conduct of the parabolical priest and Levite on the road to Jericho may indeed have been deplorable, but English law has not so far developed to the stage of treating it as criminal.’

But should there be general duty to assist victims of crime which might have enabled those onlookers to be punished for their failure to act? Andrew Ashworth, in his article ‘The Scope of Liability for Omissions’ suggests that there are two views on this question. The ‘conventional view’ suggests that;
‘the criminal law should be reluctant to impose liability for omissions except in clear and serious cases. It is accepted that there are many activities in modern society which must, to some extent, be regulated by criminal offences, of which some will properly be offences of omission; …the distinctive argument is that our duties towards other individuals should be confined to duties towards those for whom we have voluntarily undertaken some responsibility. Whereas we owe negative duties (e.g. not to kill or injure) to all people, it is right that we should owe positive duties (e.g. to render assistance, to support) only to a circumscribed group of people with whom there exists a special relationship.’

The second view, which he calls the ‘social responsibility’ view, will be discussed below. However, it will be useful first to outline the positive duties Ashworth describes.

The law does enforce a duty to act in certain circumstances by making a failure to act itself the actus reus of a crime. Some conduct crimes are defined by statute in terms of omission rather than commission, such as failure to provide a specimen of breath under section 6(6) Road Traffic Act 1988, or failing to provide for a child in one’s care in terms of food, clothing and medical care under s1(1) Children & Young Persons Act 1933. A duty to act which arises from a contract or office can also be enforced in the courts, according to Pittwood, where a level crossing guard caused a death by failing to shut a gate. Finally, where the defendant has created a dangerous situation the court in R v Miller found that there is a duty to ‘counteract a danger which one has himself created.’

But there are also a number of common law result crimes where a positive duty, to intervene to prevent serious harm to certain individuals with whom one has a special relationship such as that described by Ashworth above, has been established by the courts. The most common example of such a duty occurs where there is a close personal relationship between the defendant and the victim. The courts established in Downes that parents have a duty to prevent harm to their small children, and in Smith that husbands and wives have a duty to one another . That the dereliction of such a duty would be morally and socially repugnant is unquestionable – what is more difficult to establish is on what basis this relationship can be defended and explained in legal terms. The existence of a tie of blood or marriage may not be sufficient alone, according to the decision in Shepherd, where it was held that there is not the same expectation of care of an 18 year old ‘emancipated’ daughter as with a dependent child. So there must be another criterion.

The court in Instan took the view that the fact that the defendant had accepted money to buy food for her aunt, whose death was ultimately accelerated by her neglect, and was the only means for her aunt to obtain food, gave rise to ‘a common law duty imposed upon the prisoner which she did not discharge’. The court clearly felt that a strong moral argument compelled their decision;

‘…it would be a slur upon and a discredit to the administration of justice in this country if there were any doubt as to the legal principle, or as to the present case being within it.’

So it is not the blood or marriage relationship that generates a legal duty to preserve life, but, as with duties arising from a contract, rather the assumption of responsibility. Geoffrey Mead puts forward several practical justifications for the existence of a duty to act in such cases;
‘.. if D has given an undertaking he may be in the best position to avert the harm. … First, he is more likely to be aware that a person may be in a position of peril and in need of assistance. … Second, he may be more capable of carrying out the required task than will a third party. We might assume that, in most cases where D undertakes to do a particular thing, he feels he has the ability to do it, whereas a third party, who has not given such an undertaking will not necessarily possess the required skills to do what is needed in order to avert danger to V. The third point is that if other people are aware of the undertaking they might feel it unproductive for them to get involved as well. They might reasonably think that they would simply get in the way and hinder the proper completion of the task in question.’

The decision in R v Stone, R v Dobinson supports this view. In that case, although there were blood relationships between the victim and one of the defendants, the court found the duty was created when the defendant provided some care to the victim, thereby voluntarily assuming responsibility for her. It is notable, however, that the courts seemed to require very little evidence of this voluntary assumption of responsibility in order to find that it had occurred and had created a duty. Professor Hogan has commented that;
‘What is disturbing about Stone is that the evidence hardly supported the inference that these two elderly incompetents had taken it upon themselves to discharge the onerous task of looking after the sister.’

It seems that it may require very little action on the part of a distant relative to incur this duty of care, a development which may have unwanted social consequences as relatives seek to avoid liability by refusing to help those in need. This also, surely, does not stray very far from the kind of moral judgement justified by reference to legal principle which those opposed to of a general duty to aid those in peril decry. Nevertheless, legal liability is based squarely on an assumption of responsibility or a close personal or familial relationship.

By contrast, Ashworth’s second ‘social responsibility’ view;

‘would draw attention to the co-operative elements in social life, and would argue that it may be fair to place citizens under obligations to render assistance to other individuals in certain situations. This does not commit them to the view that the criminal law should enforce general duties to help all persons at all times. But it leads them to doubt whether the existence of some relationship or voluntary undertaking should be regarded as a precondition of criminal omissions liability. And it may also lead them to attack the argument that there is a general moral distinction between failing to perform an act with foreseen bad consequences and performing an act with identical bad consequences.’

The prized British value of individual autonomy has been prioritised, according to this view, at the expense of the ‘network of relationships’ which forms the basis of our society. Feinberg argues that the net of the ‘special relationship’ giving rise to a duty to assist should be thrown wider, so that;

‘[w]hen it comes to aiding the imperilled, all people who happen to find themselves in a position to help – all who have by chance wandered into the vicinity, or ‘portable neighbourhood,’ of the imperilled party – are his ‘neighbours,’ with reciprocal dependencies, expectations, duties, and claims.’

Many states have enacted ‘easy rescue clauses’ which seek to enforce a duty to assist the imperilled stranger where the defendant would be physically capable of acting. Clarkson and Keating provide the example of a provision of the state of Vermont, which requires that

‘a person who knows that another is exposed to grave physical harm shall, to the extent that the same can be rendered without danger or peril to himself or without interference with important duties owed to others, give reasonable assistance to the exposed person unless that assistance or care is being provided by others.’

There are a number of arguments against this view. Firstly, there is the great respect paid by the law of the United Kingdom to our individual autonomy and liberty. In establishing such a wide duty to act, our freedom of choice as to whether or not to act would effectively be removed; Ashworth points out that;
‘[t]he criminal law should recognise an individual’s choices rather than allowing liability to be governed by chance, and the obligation to assist someone in peril may be thrust upon a chance passer-by, who may well prefer not to become involved at all.’

Secondly, there is the difficult question of degree. How much assistance should be required of the bystander, and to what degree should they be required to endanger themselves before the risk to themselves outweighs the duty to assist? Arguably, the existing UK provision is a better tool for establishing answers to these difficult questions, because it places a responsibility on the defendant which is concomitant with their relationship with the victim.

Thirdly, there is the great difficulty of enforcing such a duty – arguably this is made easier by the profusion of surveillance media which now record our every movement, but would still pose problems of feasibility and resources where large events or remote locations are involved.

Finally, what liability would attach to the bystander if their efforts to assist the victim made the harm worse? The general duty to assist raises the spectre of a general public either unwilling to enter into situations where they might be called upon to assist, or interfering in every such situation that crosses their path; of a court system struggling to determine the liability in criminal and civil law of a bystander whose well-meant attempts to save victim of crime or accident resulted in paralysis.

Graham Hughes dismisses these fears, arguing that ‘the evil of interfering with individual liberty by compelling assistance is much outweighed by the good of preserving human life’, and pointing out that there is no question of not imposing liability in riot situations, where it is often impossible to find and convict all of the offenders. The prospect of being able to punish some offenders is not, he argues, less worthy because not all can be caught.

But this analysis ignores, to an extent, the degree of blame attached to actually causing harm, as opposed to merely failing to prevent it. Fletcher comments that
‘[t]he difference between killing and letting die, between creating a risk, and tolerating a risk, is one of the principles that sets the framework for assessing moral responsibility.’

This view is supported by Airedale NHS Trust v Bland, where it was made clear that there is a huge moral and legal distinction between withholding food and allowing the patient to die, and administrating a drug which would kill him; between the act and the omission.

Indeed, it would be difficult to argue that any of the onlookers who failed to help Richard Whelan on the 29th July caused his death. Arthur Leavens bases liability for criminal omissions on a blameworthy failure to act when, empirically, society expects action, which ultimately causes harm. This seems a very fluid measure by which to judge culpability – in a legal setting this might be determined by the courts, applying this standard with all the usual trimmings of subjective and objective approach. Furthermore, even if action were to be expected, the failure of those onlookers to act could not be said to be a ‘but-for’ cause of Mr Whelan’s death.

If the concern of the criminal law is to punish actions which harm others, then punishing such a failure to act which is not the direct cause of harm can be justifiable only on policy grounds, in order to encourage passers-by to help. But is it fair to demand of every person witness to a crime that they involve themselves? The authorities and commentaries I have referenced above repeatedly mention the caveat of physical capability – if the actor is physically incapable of action to assist another, they should undertake it. But what of mental and emotional capability? In the suspicious climate of London in July 2005 there may have been many reasons for the passengers on the bus forbearing to interfere. As Lord Morris said in Lynch v DPP for Northern Ireland,
‘[f]or the law to understand not only how the timid but also the stalwart may in a moment of crisis behave is not to make the law weak but to make it just.’

It seems that any attempt to place a general duty on the public to assist the victims of crime is to make unreasonable demands of human nature. To try to enforce heroism is to attempt an attack on self-interest and fearfulness. Helping the victim of crime is an act worthy of praise, but in my opinion it does not automatically follow that a failure to do so in worthy of blame.

Bibliography

Newspaper Articles
‘I kept saying, “Help me, help me.” But no one did’, by Tara McCartney, The Guardian, Thursday 4th August 2005 [Online], accessed 22.08.05, available from http://www.guardian.co.uk/crime/article/0,2763,1542032,00.html

Legal textbooks and Journal Articles

Ashworth, The Scope of Liability for Omissions, (1989) 105 LQR 424-459
Clarkson, CMV and Keating, HM, ‘Criminal Law Texts and Materials’, (2003), Sweet & Maxwell
Feinberg, J 1984 "The moral limits of the criminal law, Volume one, Harm to Others" Oxford: Oxford University press
Hogan, ‘Omissions and a duty myth’, in Smith (ed.), Criminal Law: Essays in Honour of JC Smith, 1987, London, Butterworths


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