In criminal law, an omission to act, only where a duty to act has been established, is considered a criminal act. It therefore, is not considered a criminal act when no duty to act has been established. Per Lord Diplock in Miler  2 A. C. 161,175, "The conduct of the parabolical priest and Levite on the road to Jericho may have been indeed deplorable, but English law has not so far developed to the stage of treating it as criminal" (Criminal Law, Text and Materials, CMV Clarkson & HM Keating, Thomson Sweet & Maxwell, Fifth Edition, 2003, pg.
97) What then, does a duty to act consist of, and how is it established? Does this contravene morality? According to Graham Hughes in, "Criminal Omissions" (1958) 67 Yale L. J. 590 at 626, 634, morality is indeed contravened. He says "but a view of moral responsibility is surely outmoded which imposes liability on the father who does not warn his child on the precipice before him, but not on a stranger who neglects to warn the child…
The duty to take active steps to save others, and a liability [for homicide] in the absence of such action, could be based on the defendant's clear recognition of the victim's peril, plus his failure to take steps which might reasonably be taken without risk to himself to warn or protect the victim… " (Supra Clarkson & Keating, p. 110). This view is supported by Andrew Ashworth in, "The Scope of Liability for Omissions" (1989) 105 L. Q. R. 424 at 430-432.
He says 'individuals tend to place a high value on interpersonal contacts, relationships, mutual support and the fulfillment of obligations, and a society which values collective goals and collective goods may therefore provide a wider range of worthwhile opportunities for individual development… Each member of society is valued intrinsically, and the value of one citizen's life is generally greater… It follows that there is a good case for encouraging co-operation at the minimal level of the duty to assist persons in peril, so long as the assistance does not endanger the person rendering it…
' (Supra Clarkson & Keating, p. 109). The authors claims that society has evolved in such a way that it should be considered immoral for all omissions to act, regardless of the relationship. However, both academics point out that so long as the act of assistance does not endanger the person providing it. It is clear that it is not reasonable to impose any criminal liability when it endangers the person or people rendering it. This is supported by the American case of United States v Knowles, 26 Fed. Cas. 801 (No. 15, 540) (N. D. Cal.
1864) (District Court, Northern District California). In the case, the defendant was captain of a ship when a seaman fell overboard and drowned. The captain was charged with manslaughter on the grounds that he willfully omitted to act, despite his duty to do so. The prosecution argued that the captain was bound by both law and contract to do all he could, to rescue all under his charge. They went on to argue that he was bound to act no matter what the delay to the voyage or expense to the owner, subject to the safety of the vessel and the remaining on board.
It was deemed that the captain was under a duty to act due to the closeness of the relationship between them. The relationship of seaman and captain, where the captain undertook the responsibility to look after those under his charged were both assumed, and under contract. The captain was acquitted of the manslaughter charge as it was proven that any attempt to perform the rescue would jeopardize the safety of the rest on board the vessel due to the stormy sea and wind conditions. (Supra Clarkson & Keating, p. 105-6).
Risking the lives of others under your charge for the small hope saving another does not seem like the logical thing to do. Though it can be argued that this may not seem like the moral thing to do, it certainly seems like the option which makes more sense. Common sense takes precedents over morality. This is supported by Maximilian Weber, a German political economists and sociologist. He said, "Modern law has to be able to legitimate power exercised in a formally legal manner through its own formal properties.
These are to be demonstrated as "rational" without any reference to practical reason… Law possesses its own rationality, independent of morality. Any fusion of law and morality threatens the rationality of law and thus the basis of the legitimacy of legal domination". (Ji?? rgen Habermas in his lecture delivered at Harvard University on the 1st and 2nd of October, 1986). I have shown that no duty to act should exist when there is a relationship between the parties when there is a reasonable danger to the person rendering aid.
It should be safe to infer then, that the same duty should not exist when there is no relationship between the parties. I shall touch briefly on the issue whether a duty to act should exist when there is a relationship between the parties, and no reasonable danger to the person rendering aid. It is in this respect where criminal law and morality agree with one another, however, only when a duty to act has been proven.
A duty to act can be proven by the closeness of a relationship between the parties. Parents are under a duty to aid their small children; husbands and wives are under a duty to aid each other (Smith  Crim. L. R. 251). In Downes  13 Cox C. C. 111, the defendant was a member of a sect called the Peculiar People, who believed in prayer rather than modern medicine. He was convicted of manslaughter when he failed to call a doctor for his sick child that died (Supra Clarkson & Keating, p. 97).