Omissions, Negligence and Criminal Liability on der Großglockner

Thomas P was 17 hours into climbing the Großglockner, Austria’s highest mountain, when his girlfriend and climbing partner, Kerstin G, collapsed of exhaustion. Thomas left Kerstin 50 metres from the summit, in temperatures of -9 degrees centigrade with a wind chill of -20 degrees, to, he maintains, fetch help. By the time help arrived, Kerstin had succumbed to the cold.

Thomas was charged with negligent manslaughter, on the basis that he had a duty to ensure Kerstin’s safety and had failed in various ways to satisfy it. For instance: Kerstin was wearing inappropriate footwear, which Thomas ought, prosecutors said, to have made her change before they departed; Thomas failed to turn the pair back in the face of worsening weather; and Thomas did not signal to a passing helicopter once the lethal danger to Kerstin must have been clear. Thomas was recently convicted and sentenced to 5 months’ imprisonment (suspended) and a fine of €9400.

This post considers two philosophical issues raised by the bases of Thomas’s conviction: (i) criminal liability for omissions; and (ii) criminal liability for negligence.

Omissions

The first point worthy of discussion is the criminal law’s attitude towards liability for failing to prevent harm. The criminal law’s default position is that liability depends on positive acts, not omissions.

One significant explanation for the law’s focus on action is that it respects and safeguards everyone’s individual autonomy. It avoids us being duty-bound to look out for others’ interests and (where required to act) sacrifice our own – an obligation generally perceived to be overly demanding. For this reason, the criminal law in all systems with which I am familiar recognises omissions liability only exceptionally.

There are reasons to think that cases such as Thomas’s are worthy of an exception. The prosecutor’s account was that, as the far more experienced climber, Thomas was acting as a de-facto expedition leader, and that such persons are responsible for the safety of those they lead. The trial judge accepted that Thomas and Kerstin had ‘galaxies-wide’ differences in their level of experience and that Thomas therefore had responsibility for Kerstin’s safety.

One way of understanding the court’s thinking here is that the less-experienced party (Kerstin) was in a vulnerable position and entrusted her safety to the more experienced party (Thomas), but cases such as these exist on a spectrum.

At one extreme, we might think of those who are duped into getting into more danger than they anticipated, on the basis that they would be saved by their more experienced partner (who has no intention of helping). For example, the English Court of Appeal recently considered a hypothetical case in which a defendant encouraged “a weak swimmer to swim on the promise that he would rescue him if he got into difficulties, but in fact had no intention of doing so and did not do so, resulting in the victim’s death”. It concluded that criminal responsibility for homicide could arise here on the grounds that the victim “had volunteered to swim on the false assurance of rescue”.[1]

Thomas’s case is far from this extreme hypothetical, but it still seems likely that Kerstin was relying on his experience to get her out of trouble when she embarked on the climb. It does seem, in the light of her (in)experience, she would never have undertaken the climb alone, and so Thomas’s looking out for her was causally efficacious in her ending up in the scenario that led to her death.

At the other end of the scale, one can imagine cases where such reasoning might demean the less experienced party’s abilities and choices. Indeed, Kerstin’s mother is reported by Die Zeit as saying:

‘It makes me angry that Kerstin is being portrayed as a stupid little thing … Kerstin was in top physical condition. And she had already mastered far more difficult climbing tours, both alone and with her boyfriend.’

Thomas’s own account at trial sought to paint the two parties as equal co-adventurers.

This spectrum of cases demonstrates that the question of responsibility for others during perilous activities is, as one might expect, incredibly complex.

I think the nature of the activity here is crucial to analysing the case properly. It is not always appropriate to look for one duty-holder to hold responsible for all others. Climbing of the nature engaged in by Thomas and Kerstin is dangerous. Companions are presumably not taken just for company, but also to make those dangers less likely to be lethal. Accordingly, it is justified for the law to say that those engaging in such joint risky endeavours have a duty to take reasonable steps to ensure the other party’s safety. If Thomas had been the one to experience difficulties, for instance, it would seem right that Kerstin would have had a duty to take reasonable steps to ensure his safety. Her relative inexperience (compared to Thomas) is relevant to working out what ‘reasonable’ means in this context. But one’s level of experience is not, ultimately, what ought to found the relevant duty itself.

Negligence

The second main issue – Thomas’s negligence regarding Kerstin’s death – raises distinct philosophical issues. Negligence is a controversial head of criminal fault, if understood as inadvertent conduct. The foundation of criminal fault is often thought to be one’s advertent choices to engage in wrongdoing or risk wrongful consequences. Accordingly, criminal law’s fault elements tend to be based on advertent harm-doing (intention, knowledge, etc.) or risk-taking (recklessness – i.e. the advertent taking of a risk in circumstances where it is unreasonable).

(Fault tends to be conceptualised differently in Civilian systems, like Austria, but it would complicate the analysis to try to address both systems here.)

Take a case like Thomas’s. If, at the time of leaving her, Thomas foresaw the risk that Kerstin might die as a result, and it is adjudged that this risk-taking was unreasonable, then in most Anglo-American jurisdictions, he would be identified as reckless regarding causing death, and a conviction for manslaughter would follow relatively uncontroversially from a theoretical perspective. Indeed, any claim that Thomas did not realise Kerstin’s life might be imperilled by his conduct on the mountain perhaps strains credibility.

Things become much more complicated, however, if we assume, for the sake of argument, that Thomas failed to recognise the risk of Kerstin’s death. That would remove him from the realm of recklessness, and the relevant inquiry would be into whether he was negligent regarding the risk of death.

There are two major ways of looking at negligence in Anglo-American theory: either as a failure of conduct (the defendant did not act as a reasonable person would have) or a failure of belief (the defendant did not form the beliefs about risk that she ought to have). Both conceptions of negligence are controversial. The most prominent concern is that, where the defendant did not make an advertent choice regarding the wrong-making features of her conduct (e.g., the risk of death), there is nothing to found culpability on. Indeed, some authors go as far as to contend that, in such circumstances, there is simply a tragic twist of fate, rather than culpable wrongdoing of the type that the criminal law should be concerned with.

Against such arguments, theorists develop a range of responses. Some point to anterior states of awareness of risk that could (and should) have prompted further action to avert later disaster. For instance, even if the danger to Kerstin was not adverted to by Thomas at the time he is found to have breached his duty, that danger might well have been apprehended at the earlier time, and it might be that the decision not to choose differently at that stage would ground criminal negligence regarding the subsequent omission. Such accounts tend to cover a trivial number of cases. In most scenarios, those who are not adverting to a risk at the time of acting (or omitting to act) did not have utter clarity on those precise risks at an earlier time. Perhaps a failure to turn back when the weather on a mountainside was clearly becoming hazardous to life would be such a case.

Other accounts of criminal negligence point to other features of the defendant to explain their culpability. For instance, one can point towards the defendant’s capacity to foresee the relevant risk (e.g. ‘Could they have foreseen the risk if they had applied their mind to it?’) and/or take evasive action. Or one can suggest that inadvertent wrongdoing can still demonstrate a kind of personal defect that grounds criminal culpability – e.g. an indifference towards, or at least an insufficient level of concern for, the interests of others.

All such accounts push against the focus on individual choice and autonomy mentioned earlier. Indeed, some reject a focus on attitude, character, and the like on the basis that it invites invidious inquiries into the defendant as a person, rather than as an autonomous, liberal, choosing agent. Such accounts might accept that there is more to moral blameworthiness than one’s choices, but that the criminal law – a state institution – ought merely to be concerned with choice-based, advertent fault.

Where one comes to rest on this debate relies on one’s views on what the criminal law is for, and what kinds of inquiry it should be making. For my own part, criminal convictions – at least as we employ them in jurisdictions such as England and Wales – especially for ‘serious’ crimes like manslaughter, are stigmatic. Such convictions do not simply record that the defendant broke a rule (e.g., parking in an area where one is not permitted to do so), but that the rule-breaking involved culpable wrongdoing. This is, in any event, how convictions for serious offences tend to be received by the community. This is no accident: such convictions are intended to be stigmatic and to have this social uptake. In other words, convictions ‘get personal’ in a manner that civil judgments do not.

Where such personal blame is to be communicated by a conviction, we had best ensure that culpability is actually present. But determining that matter seems, to me, impossible without requiring proof of some defect of character (or ‘will’) on the defendant’s part. Simply asking whether a ‘reasonable person’ would have done differently is insufficient. We ought, for instance, to ask whether the defendant’s failure to form the belief that the relevant risk existed (to, colloquially, put ‘two and two together and make four’) demonstrated his insufficient concern for the interests of those who would be affected by the risk.[2] Cases such as Thomas’s, where his own life was imperilled, where his responsibilities were of unclear scope, where Kerstin had consented to being put at risk, etc., are no doubt difficult to resolve. But such difficulties must be engaged with rather than evaded if the criminal law is to make use of the concept of negligence.

If one is uncomfortable with such deeper inquiries, for practical and/or political reasons, this is reason to reject negligence in criminal law, whatever one’s views on the moral position. A less extreme reaction would be to adopt a range of other steps to limit the reach of criminal negligence – for instance, limiting the interests that criminal negligence can attach to (e.g. criminalising negligent homicide, but not negligent property damage), and requiring that the defendant’s negligence be ‘gross’ (extremely bad) before it can be the stuff of criminal liability.[3] Yet such limits seem unlikely to prevent the interrogation in a criminal court of what happened on the Großglockner.

Findlay Stark is Professor of Criminal Law at the University of Cambridge. His research focuses on criminal law, evidence, and procedure, often with reference to work in moral, legal and political philosophy. He is the author of Culpable Carelessness: Recklessness and Negligence in the Criminal Law.

Notes

[1] In Field [2022] EWCA Crim 316, https://www.bailii.org/ew/cases/EWCA/Crim/2022/316.html.

[2] I develop this account in Findlay Stark, Culpable Carelessness: Recklessness and Negligence in the Criminal Law (Cambridge University Press, 2016), chapter 8.

[3] See Findlay Stark, ‘Constrained Negligence’ in Philipp Hirsch, Findlay Stark and Johannes Weigel (eds.), Criminalising Carelessness? (Hart, forthcoming).

Disclaimer: Any views or opinions expressed on The Public Ethics Blog are solely those of the post author(s) and not The Stockholm Centre for the Ethics of War and Peace, Stockholm University, the Wallenberg Foundation, or the staff of those organisations.