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“Under Article 223-6 of the French Penal Code(Chapter

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“Under Article 223-6 of the French Penal Code(Chapter III, Section 3)..'anyone who wilfully fails to render to a person in danger any assistance which, without risk to himself or to third parties, he could render him either by his own action, or by initiating rescue operations..' is punishable by imprisonment and fine.”

Essay Question: What is the criminal law in England and Wales on liability for omissions to act? Having regard to the above extract from the French Penal Code, critically discuss whether the current English Law on this issue should be changed.

The criminal law in England and Wales on liability for omissions to act:

Unlike the French Penal code, which provides a general duty on all persons to assist others in peril according to their abilities, breach of which is a specific offence in its own right, English criminal law does not impose a general duty to act to save other people or property from harm, even if this could be done without any risk or inconvenience. For example, a man who simply stands and observes a child drowning in a shallow pool when he is in a position to easily rescue it should he choose to do so, commits no offence under English law, because he is not under a duty to rescue it.

A duty to act may however arise under a contract, the most obvious example being where the failure to fulfil a contractual obligation is likely to endanger the lives of others. Liability is not necessarily precluded by the injured person not being a party to the contract; in the case of Pittwood[1], the defendant, who was a level-crossing keeper, in breach of his contract of employment, failed to close the gate when a train was approaching, resulting in someone dying on the crossing. Wright J confirmed that criminal liability can be incurred from a person’s failure to perform their contractual duty and held that, in this case, a duty was owed to the road users even though, prima facie, the contractual obligation was owed only to the railway company.

A person who holds a public office, such as a police officer, may also be under a duty to care for others. For example, in the case of Dytham[2], a uniformed police officer failed to act when he saw a man being kicked to death a few yards away and was convicted on charges of ‘misconduct in a public office’.

Likewise, a parent is under a duty to save his/her young child from harm; a parent who has allowed his/her baby child to starve to death may, depending upon his/her state of mind, be convicted of murder or manslaughter[3]. Other close relationships may also involve a similar duty[4], such as between a husband and wife, although this particular example might be more akin to a contractual duty arising from the contract of marriage than to the duty in the above example.

The voluntary carer of a person unable to look after him/herself is also bound by a duty of care towards that person under English criminal law. In Nicholls[5], the defendant received a young child into her care, on the death of that child’s mother. Brett J directed the jury that if a person chooses to take on the care of someone who is helpless, either from infancy, infirmity or mental illness, he is bound to execute that responsibility and, if he allows him/her to die, he may be guilty of manslaughter. In Stone[6], this principle was extended to include situations where a person does not overtly accept the responsibility of carer, but where the situation has lead to such; for example, in a situation where two people have lived together for some time, and the health of one of those people deteriorates to a state where they become dependent upon the other for care, then the court may be prepared to imply a voluntary undertaking of care from the very fact that the healthy party did in fact oblige[7]. Such a duty will of course be extinguished if the relationship between these two parties should end, or if the ill party orally releases the other from his/her responsibilities [providing of course that the party is in a state capable of making a rational decision]. An example of this latter situation might be a patient releasing her doctor from his duty of care towards her by instructing him that should she become ill, she does not wish to be treated. Such an advance refusal will only be effective if the patient is fully compos mentis, has not been unduly influenced in respect of her decision and has contemplated the actual situation which will arise, understanding all the consequences of refusing treatment in such a situation[8].

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A duty of care can also arise from an accident; where the accused inadvertently and without the appropriate mens rea performs an act which places a person or property in danger, but before the resulting harm is complete, becomes aware of the train of events caused by his inadvertent act, then that party is, by virtue of the English criminal law, under a duty to take such steps as lie within his power to try to prevent or reduce the risk of harm; if he does not, then he may be criminally liable for the consequences. The case authority for this special duty situation is the case of Miller[9], in which the defendant had, quite by accident, fallen asleep in the plaintiff’s house with a lit cigarette in his fingertips. He awoke to find that he had set the mattress of the bed, in which he was sleeping, alight, but rather than raising alarm or trying to extinguish the fire, he simply went into the adjacent room and fell asleep in there. The House of Lords affirmed his conviction for arson, contrary to s1(1) and (3) of the Criminal Damage Act 1971, as he was in breach of his duty to take reasonable care to extinguish the fire which he had accidentally caused, being in a position to do so. As yet there is no clear authority on how much of a risk a person under such a duty to act might be expected to run in order to perform that duty, but the common law duty requires ‘reasonable’ steps to be taken, a criterion which will be assessed in light of all the circumstances of the particular case in question.

So far we have focussed our discussion around the duties of ordinary citizen’s in daily life as developed by the English common law. It should be noted that there are also in place many statutory schemes of regulation in regard to industry and commerce, such as the offence of failing to comply with a limitation, condition or notice contrary to the Radioactive Substances Act 1993. There are also statutory schemes for the distribution of public money, such as the failure to notify a change of circumstances under the Social Security Administration (Fraud) Act 1997, and schemes for other licensed regulated activity such as failing to report a road accident. These statutory schemes are simple rules which must be followed as a condition of engaging in these activities, and are relatively non-contentious in their lack of general application to the ‘ordinary citizen’.

Critical discussion regarding the issue of whether the current English Law, as described above, should be changed so as to be more like the law contained in Article 223-6 of the French Penal Code(Chapter III, Section 3):

As we have seen from the above description, English criminal law does not generally criminalize the failure to render assistance to another citizen who is in peril, even where such assistance would be easy and cause no harm to ourselves. In contrast, the law under Article 223-6 of the French Penal Code (Chapter III, Section3), as quoted within the question of this essay, does create a general duty to rescue, and does criminalise such omissions.

The position of the English criminal law in not generally criminalising such omissions might be defended on grounds that the vagueness of the terms involved with criminalizing such omissions [such as ‘reasonable steps’] would leave citizens with no clear warning of what they must do and when [the principle of ‘fair warning’]. It may also be defended on grounds that this resulting uncertainty would have a weakening effect on the rule of law and would also lead to too great a reliance on prosecutorial discretion in defining the effective scope of such omission criminalisation. The English position might be best defended however by adherence to the principle of autonomy; “the imposition of a duty to act restricts one’s liberty to pursue one’s own ends and desires by requiring one to do a particular thing at a particular time.”

The position of the French Penal Code in generally criminalising such omissions might be defended on grounds that more important than the principles of fair warning, rule of law and individual autonomy is the protection of human life and human safety. A. Ashworth and E. Steiner[10] argue that Article 223(2) is a deliberate attempt to set the protection of one citizen’s life or safety above the protection of the maximum liberty of other citizens. The position might also be defended by the fact that since its introduction in 1941, this French Penal Code, responsible for generally criminalising a failure to rescue, has not been considered oppressive[11] in the way that vehement advocates of the English approach might lead one to believe such a law would.

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The truth is that both the English and the French approach in regards to liability for omissions to act have their respective shortcomings. The English approach does not afford enough weight to the worthy protection of the fundamental interest in human life and safety; the French approach does not afford sufficient attention to the worthy principles of autonomy, fair warning and the rule of law. Perhaps the solution therefore would be a compromise?

I believe that the lesson English criminal law should learn from the Penal Code of our Continental comrades is the importance in recognising the harms involved with not helping a person who is in peril; English law must retain its firm stance with regards autonomy, fair warning and rule of law, but simultaneously afford a greater degree of attention to the protection of the fundamental interest in human life. As M. A. Menlowe[12] writes: “…when fundamental interests are involved (life, physical integrity), we should pause before accepting that an individual’s freedom of action is more valuable than a requirement to carry out a non-burdensome rescue.”

In conclusion therefore, I would argue that perhaps a compromise should be employed by the English criminal law; a ‘duty of easy rescue’. The law should criminalise omissions to rescue those in peril where such a rescue is a simple and harmless task, but should not punish someone for not engaging in a rescue attempt when the risks associated with such a rescue are uncertain and complicated. Pessimists might argue that it would be too difficult to create a law which attempted a balance between on the one hand the respect for autonomy, adherence to the principle of fair warning and adequate protection of the rule of law, and on the other, a respect for protection of the fundamental interest in human life, but such critics should bear in mind that these three former principles are often found balanced with other interests throughout English law. As Feinberg remarks: “similar line-drawing problems exist throughout the law, and most have been found manageable.[13]

Bibliography

A. Ashworth and E. Steiner ‘Criminal Ommissions and Public Duties (1990) 10 Legal Studies 153

A. Ashworth, ‘Principles of Criminal Law’, 3d. Oxford University Press 1999 p50

M. A. Menlowe. ‘The Philosophical Foundations of a Duty to Rescue,’ in M. A. Menlowe and A. McCall Smith (eds), The Duty to Rescue (1993)

Feinberg, Harmless Wrongdoing, xii, summarising his argument in ‘Harm to Others’ 150-9 (1984)

Cases cited:

Pittwood (1902) 19 TLR 37

Dytham [1979] 3 All ER 641

Gibbins (1918) 82 JP 287

Smith [1979] Crim LR 251

Nicholls (1874) 13 Cox CC 75

Stone [1977] QB 354

Re T [1993] Fam 95

Miller [1983] 2 AC 161

Footnotes

[1] Pittwood (1902) 19 TLR 37

[2] Dytham [1979] 3 All ER 641

[3] Gibbins (1918) 82 JP 287

[4] Smith [1979] Crim LR 251

[5] Nicholls (1874) 13 Cox CC 75

[6] Stone [1977] QB 354

[7] Stone [1977] QB 354

[8] These criteria were first set out in the case of Re T [1993] Fam 95

[9] Miller [1983] 2 AC 161

[10] A. Ashworth and E. Steiner ‘Criminal Ommissions and Public Duties (1990) 10 Legal Studies 153

[11] A. Ashworth, ‘Principles of Criminal Law’, 3d. Oxford University Press 1999 p50

[12] M. A. Menlowe. ‘The Philosophical Foundations of a Duty to Rescue,’ in M. A. Menlowe and A. McCall Smith (eds), The Duty to Rescue (1993)

[13] Feinberg, Harmless Wrongdoing, xii, summarising his argument in ‘Harm to Others’ 150-9

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