When Inaction Becomes Criminal

10 February 2017

On 26 January 2017 Michael Bowditch was convicted at Maidstone Crown Court for his role in the death of 17-year-old Becky Morgan. Miss Morgan drowned after falling into the sea at Ramsgate in Kent.  Mr Bowditch, who was with her when she fell into the sea, was initially charged with murder but on the first day of his trial a plea was accepted to manslaughter by way of ‘gross-negligence’. This was based on his failure to take steps to save her. In sentencing Bowditch to five and half years imprisonment His Honour Judge Carey, described Mr Bowditch’s actions as, “repugnant… you left her to drown”.

The reporting of this tragic case raises a question of law. Undoubtedly, Mr Bowditch had a moral duty to try to save Miss Morgan; this cannot be in question – but when does a moral duty to act create a legal duty of care and therefore give rise to potential criminal liability for breach of that duty?

Gross-Negligence Manslaughter

To commit the offence of gross-negligence manslaughter the prosecution must prove:-

i. A has a duty of care towards B;

ii. That duty of care is breached;

iii. That breached caused B’s death; and

iv. That breach was so bad as to be grossly negligent.

A duty of care is accepted to exist in a range of circumstances, for example, in the context of a family (parent-child), or through employment.  There is, however, no general duty of care requiring one person to save the life of another. This position was set out in R v Evans [2009] EWCA Crim 650 in chillingly apposite terms: “The Good Samaritan would have been disconcerted to discover that, at common law, absent a pre-existing responsibility for the child, a fit strong adult could watch him drown in shallow water although he was within easy reach and safety.”

In a legal sense therefore there was no pre-existing duty of care between Mr Bowditch and Miss Morgan. Consequently, it appears that the duty was adopted by Mr Bowditch as a result of his actions. “Where a person has created or contributed to the creation of a state of affairs which he knows, or ought reasonably to know, has become life threatening, a consequent duty on him to act by taking reasonable steps to save the other’s life will normally arise” Ibid.

Kent Police have released a description of the evening in which it is apparent that: - Mr Bowditch and Miss Morgan left their friends to walk along and sit on the harbour arm; while at the harbour they began ‘mucking around’; at some stage Miss Morgan fell into the sea; while in the water Miss Morgan is said to have asked for Mr Bowditch’s help as she could not swim; and Mr Bowditch then left Miss Morgan in the water and returned to a bar for at least two hours. At around 5am Mr Bowditch called Kent Police to report that he had ‘watched Miss Morgan drown in the sea near Ramsgate Pier two or three hours earlier’. This call was, tragically, far too late to save Miss Morgan’s life.

The prosecution are reported as submitting that the “failure to take any steps to prevent Miss Morgan’s death after she fell into the sea… [form] the basis of [Mr Bowditch’s] culpability”. Unfortunately, this only serves to cloud an already complex area of law.

That Miss Morgan was in a life-threatening situation and that Mr Bowditch was aware of this does not automatically attach a legal duty of care. Moreover, no single fact, in isolation, would appear to be the cause (or contributor to the cause) of the life-threatening situation: - Mr Bowditch and Miss Morgan had met that evening and walked along the pier together; the known facts do not present the pier as especially hazardous; and the fact that Mr Bowditch was intoxicated - while prayed on in defence of his inaction - is not reported being a cause of Miss Morgan’s fall (with the reason for the fall being unknown).

However, given the plea to manslaughter, and the fact that it was accepted by both the prosecution and the court, it would appear that an aggregate of all of the known facts, combined with the undefined ‘mucking around’, was considered sufficient to establish a duty of care owed by Mr Bowditch towards Miss Morgan. Once the duty of care was found to exist there can be little doubt that the failure of Mr Bowditch to take even the most cursory and humane step to attempt to save Miss Morgan’s life amounted to a breach of this duty.

While this remains a fraught and complex area of law, it is abundantly clear is that a young woman lost her life in appallingly tragic, and preventable, circumstances. 

 

This blog was written by Matthew Hardcastle, and Jack Wright (paralegal).

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