TUTOR FEEDBACK ACTIVITY – CRIMINAL LAW

ANSWER AND FEEDBACK

Student Answer
In criminal law the term omission simply means that a criminal offense can become criminally liable
where he or she failed to act. Nonetheless, the AR for all criminal offenses committed by the (D)
requires a physical act or a positive conduct. Cherkassy [2012]
However English criminal law only punished those who caused a prohibited result by a voluntary
(positive) act. Storey (2020) also adds that this concept has become accepted that it should also
punish those who fail to act could be implied, with the results that the prohibited results ensued.
Nevertheless, in general the positive is still that there is no general duty imposed on an individual
to act as there may well be a moral obligation imposed on someone to be a Good Samaritan but
not a legal one. The omission liability is limited in criminal law to several instance where the (D)
has a duty to act when he/she fails to do so. It should be noted that it is for the jury to decide
whether a duty to act existed in the circumstances and whether the duty to act has been breached
by the (D).
Presently there exist statutory and common law obligations when one may become liability for an
omission. Statutory obligations can be found in the Road Traffic Act 1988, Domestic Violence and
Victims Act 2004, the Terrorism Act 2000 among others The common law liability for omissions
include:
where a special relationship exist between both parties Gibbons v Proctor, where the defendant
voluntary assumes responsibility of the victim Stone & Dobinson, where the defendant holds
public office and is under a duty to act Dytham, where the defendant is under a contractual duty to
act Pittwood Adomako, Singh [1999] and where the defendant has created a dangerous
situation, he is under a duty to neutralize that danger Miller, Evans[2009]. Following the Miller
principle an extension of this is where a person failing to inform an individual of a potentially
dangerous situation, he initiated can amount to one being liable for an omission as demonstrated
in the case of Santana-Bermudez [2003].
These common law approaches have created somewhat of a controversy between what is morally
wrong and what is legally right. The conventional view that was put forward states that “the
obligations we have to others are limited as opposed to whom we have assumed or voluntarily
accepted responsibility. In other words, we owe zero duties to all people and possible duties when
it comes on to a specific group of persons with whom a special relationship exists. However, a
social responsibility view of expanding omissions liability does exist. After the landmark case of
Dytham [1979] suggestions for reforms were made proposing that a victim should be rescued if
the situation does not pose a danger to the defendant and liability should be imposed for a failure
to act, even in cases that does not require a preexisting legal duty on the D. Ashworth (1989)
Professor Ashworth (1989) proposes that obligations should be available in instances where one
report “major crimes” or to effect “easy rescue” where injuries pose a threat to life. These duties
would be limited to activities with “no unreasonable risks, cost or inconvenience.”

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This stance creates numerous objections from a practical and moral standpoint. Arguments against
the idea includes; how the law would define the requirement of a “social duty to act”, would society
on a whole strictly adhere to these rules, should society and law place a burden on and force
individuals to rescue and protect others when citizens pay their taxes and other contributions to
society for already highly trained and qualified professionals such as police officers, fire fighters,
paramedics etc, what if the possibility arises where the defendant misjudged the situation and
makes the situation worse for himself or others, would there be a great difference between a “Good
Samaritan” and a “bystander” if so then obviously everyone in close proximity who observed the
situation would be arrested if they failed to act in the dangerous situation, the law would possibly
become a nuisance if every turn and chance an individual gets he had to rescue his fellow
compatriot. Cherkassy (2012)
Even though these controversial hindrances are present that does not mean that in other
jurisdictions the law does not stretch so far as to create a legal duty to act. In France there is a
legal duty to act as a “Good Samaritan”. Carr (2014) stated that this would be difficult in a situation
such as; A helping B and as a result injures B in the process. In English criminal law the defendant
may be liable for an assault as well as other problems may arise with the concept of causation.
Therefore, the argument between what is morally wrong and legally right and vice versa is
nowhere near settled. The case of Airedale NHS Trust v Bland [1993] demonstrates this, where
an omission to not provide the victim with continuous medical treatment constitutes what is morally
wrong. However, the case was decided that “it was completely lawful for doctors to end medical
treatment for a patient that was not in their best interest to continue said treatment.”
Possible implications arise with Article 2 of the ECHR. In dealing with ‘A Right to Life’ an obligation
is placed on an individual to protect the life of another and hold them criminally liable when they do
not “assist in times of peril”. Doing this Professor Williams (1991) argues that placing punishment
of individuals in this regard is basically punishing individual’s moral perspectives and every
individual has different moral views. Placing this heavy burden on society is in my opinion
restricting an individual’s freedom in a free world. Everyone should have the freedom and will to do
what they want to, without fear and admonishment.
The concept of “easy rescue” is what is considered to be something that is easier said than done.
The myriad of practical problems this faces is insurmountable. For that reason, it can be viewed
why parliament has not enacted an Act which reflects this concept. Wilson (2020) states that
Feinberg mentioned that in the US state of Vermont it is an offence if a person 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 should give reasonable assistance to the exposed person. However, one
can see the potential problems stemming from this including, what is the metric or standard in
assessing what constitutes a reasonable act from the defendant in a given circumstance. A
misjudgment of the situation in reiterating the point, can make the defendant criminally liable for a
criminal conduct he may very well not know he was committing or by unknowingly placing himself
in harms way by rendering such assistance. There are, however, instances where Wilson (2020)
states that it would not be such a burden on society to render assistance in social hazards. For
example, a duty to report motor vehicle accidents an individual is a part of regardless, if the
individual was at fault or not. This statutory requirement is present in multiple jurisdictions and in
analyzing this we can see how this is not a completely “onerous” or an “unreasonable” thing to do.
This legal obligation also satisfies an obligation of what is morally right and what is legally right.
Lastly, it is not for the law to sanction individuals for not acting in a morally responsible way but for
them to enact laws which makes a stark distinction between a moral wrong and a legal right.
Furthermore, it should precisely define what will constitute a ‘wrong’ in the given or dangerous
situation. Therefore, as a result an individual will then be able to make better informed decisions
when acting in a capacity of a ‘rescuer’ or a ‘good samaritan’. In conclusion, imposing a general
duty of ‘easy rescue’ would not be straightforward nor it would be a welcome development of the

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law as there are still problems that lingers from this if the English criminal law should ever be
stretched so far.

Examiner Feedback
Student Mark: 72
Strengths:
This is a very high-quality essay. The essay covers all aspects of the question clearly and
analytically. The key duty categories are explained with reference to key cases. This discussion
does particularly well to show how the law developed and expanded over time. There is good
engagement with Ashworth’s arguments, and they are later contrasted to those of Williams. Much
of the essay focuses on the expansion arguments and does so well. There is a good balance here
between the legal analysis and broader commentary.
Areas for improvement:
In terms of going forward, there are two points that you can work on to improve. Firstly, for those
really high first class marks, it’s good to show additional reading and research. There are
references in the Wilson textbook, for example, for further reading. This can add further depth the
analysis.
Secondly, the essay would have benefited from further clarity in writing. While the overall structure
of the essay flows well, the writing is a bit clunky at times. Often you will get your point across
better by using more linear sentences and reading the submission out loud before submitting might
help to pick out those sentences that don’t quite flow.

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