Liability for Manslaughter by Omission: Don't Let the Baby Drown!
| DOI | 10.1350/jcla.2010.74.2.627 |
| Author | Catherine Elliott |
| Published date | 01 April 2010 |
| Date | 01 April 2010 |
| Subject Matter | Article |
Liability for Manslaughter by
Omission: Don’t Let the Baby
Drown!
Catherine Elliott*
Abstract By removing the common law rules on a duty to act from
liability for manslaughter by omission, the law would more accurately
reflect the intention of the House of Lords in R v Adomako (1995). The
current duplicitous requirement of both a duty to act and a duty of care
appears to be confusing both the trial judge and the jury. The causing of a
harm by an omission does not automatically mean the conduct was less
morally reprehensible than where harm is caused by an act and this
reform would therefore potentially bring the law more closely into line
with society’s moral values. The law would be rendered clearer and
simpler and injustices would be avoided due to the other requirements of
the Law Commission’s proposed offence of killing by gross carelessness,
including causation and gross carelessness. Through this reform justice
could at last be offered should a stranger choose to walk by a drowning
baby.
Keywords Manslaughter; Omission; Gross negligence; Duty of
care; Duty to act; Homicide
Criminal lawyers have long pondered over the rights and wrongs of
imposing liability for an omission.1The moral tensions in the law are
highlighted in the classic example of a stranger walking past a drowning
baby.2The public outrage following the death of Baby P3highlights how
important it is that members of society recognise their duty to act to
protect the vulnerable. The government has unexpectedly launched a
major reform of the substantive criminal law4and its eyes are currently
focused on the law of homicide. Major reforms to the partial defences to
murder have been included in the Coroners and Justice Act 2009, and
the government has stated that consideration will also be given to the
* Senior Lecturer City University; e-mail: C.Elliott@city.ac.uk.
1 See, e.g., A. Ashworth, ‘The Scope of Criminal Liability for Omissions’ (1989) 105
LQR 424; G. L. Williams, ‘Criminal Omissions—the Conventional View’ (1991)
107 LQR 86.
2 J. F. Stephen, Digest of the Criminal Law, 4th edn (Macmillan: London, 1887)
art. 212.
3 A. Fresco, ‘After 17 months of unimaginable cruelty Baby P finally succumbed’,
The Times, 12 November 2008; ‘Timeline: the short life of Baby P’, Guardian, 11
November 2008.
4 The Fraud Act 2006 has enacted new fraud offences; the Corporate Manslaughter
and Corporate Homicide Act 2007 has been passed after a lengthy period of
negotiations; the common law offence of incitement has been abolished and
replaced by the statutory offences of assisting and encouraging an offence in the
Serious Crime Act 2007.
163The Journal of Criminal Law (2010) 74 JCL 163–179
doi:10.1350/jcla.2010.74.2.627
Law Commission’s other recommendations regarding the homicide of-
fences.5This context makes it all the more important that the Law
Commission’s recommendations are the right way forward for the long-
term future of the criminal law. While its proposals on homicide are
generally very impressive and detailed,6this is a broad area of law and
this article will seek to highlight one particular issue which deserves
further consideration. This issue is when liability should be imposed for
manslaughter by omission. Following the case of R v Lowe,7liability for
an omission will not be imposed under the heading of constructive
manslaughter, so the only possible basis for liability is at the moment
gross negligence manslaughter and under the Law Commission’s recom-
mendations, killing by gross carelessness.8
The current law is unnecessarily restrictive and complicated by re-
quiring both a duty to act under common law and a duty of care (defined
according to civil law principles) before liability for manslaughter by
omission will be applied. The requirement of this double duty is duplici-
tous and restrictive, posing an unnecessary obstacle for criminal liability
in such cases. The critical issue should be whether a person owed a duty
of care, criminal liability could then be imposed where the other ele-
ments of gross negligence manslaughter are satisfied, which could in-
clude where a member of the public walks past a drowning baby without
offering assistance. Michael Moore has observed that liability for omis-
sions should only be imposed for omissions ‘that violate our duties
sufficiently that the injustice of not punishing such wrongs outweighs
the diminution of liberty such punishment entails’.9Thus, it comes
down to a question of proportionality.10 Liability for an omission would
not be justified against a stranger to the victim where only a small
amount of harm was caused by the omission, but where that omission
has caused a death it is appropriate for the criminal law to intervene.
Criminal lawyers should no longer sit back and debate the legal and
moral dilemma of the failure to rescue the drowning baby, and accept
that change is overdue.
5 Justice Minister Maria Eagle issued a ministerial statement on 12 December 2007
stating: ‘The Government believes it is right to deal with these crucial elements of
the existing law before moving on to consider the wider structural proposals from
the Law Commission’; see also Ministry of Justice, Murder, Manslaughter and
Infanticide: Proposals for Reform of the Law, Consultation Paper CP 19/08, 28 July
2008, 1: ‘. . . we have decided to look first at the [recommendations] that we
think touch on the areas of most pressing concern’, available at http://www.justice.
gov.uk/consultations/docs/murder-manslaughter-infanticide-consultation.pdf, accessed 12
February 2010.
6 Law Commission, Legislating the Criminal Code: Involuntary Manslaughter, Law Com.
No. 237 (1996); A New Homicide Act for England and Wales?, Law Com. Consultation
Paper No. 177 (2005); Murder, Manslaughter and Infanticide, Law Com. No. 304
(2006).
7 [1973] QB 702.
8 Law Com. No. 304 (2006), above n. 6 at Part 9.
9 M. Moore, Act and Crime: The Philosophy of Action and Its Implications for Criminal
Law (Oxford University Press: Oxford, 1993) 59.
10 G. Mead, ‘Contracting into Crime: A Theory of Criminal Omissions’ (1991) 11(2)
OJLS 171.
The Journal of Criminal Law
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