23 1.

11 Tort law and criminal law

Under the Human Rights Act 1998, the courts count as public bodies, and therefore have
a duty under the 1998 Act like other public bodies not to act in ways that are inconsistent
with individuals rights as set out in the ECHR. So the courts have a duty under the 1998
Act to make sure that tort law as it is applied in the UK courts does not work in ways
that violate individuals rights under the ECHR to freedom of speech (Article 10), or to a
fair trial of their civil rights and obligations (Article 6), and so on. That is not controversial.
What is more controversial is the argument that the courts have a duty under the
Human Rights Act 1998 to develop tort law as it applies between private individuals so as to
give greater protection to peoples rights under the ECHR to life (Article 2), not to be
subjected to inhuman or degrading treatment (Article 3), and to respect for their private
and family life (Article 8) greater protection than they have at the moment. The argument
is that just as a police ofcer would be acting inconsistently with an individuals right to life
under Article 2 of the ECHR if he watched that individual being stabbed to death and did
nothing to intervene,
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the courts also act inconsistently with peoples rights to life under
Article 2 when they sit on their hands and fail to develop tort law so that it does more to
protect people from being killed, by for example failing to get rid of the rule that there
is normally no liability in tort for failing to save a stranger from drowning. The argument
is very strained, for two reasons.
First of all, it is clear in the case of the police ofcer that if he intervened, then the stab
victims life would probably be saved. It is not at all clear that making people liable in tort
for failing to save strangers from drowning would have the net effect of saving more
peoples lives. Secondly, even if UK law could do more than it does at the moment to
protect peoples rights to life, it is not clear why the burden of doing more to save peoples
lives should fall on tort law, rather than some other area of the law, such as the criminal law.
1.11 TORT LAW AND CRIMINAL LAW
We have already seen one link between tort law and criminal law. If Parliament makes it a
criminal offence for A to harm B, we can normally say (assuming that Parliament made it
unlawful for A to harm B in order to protect Bs interests) that B has a statutory right that
A not harm B (or, in other words, that A owes B a statutory duty not to harm B). It may be
that a violation of that right will be actionable in tort: it will depend on whether Parliament
intended that a violation of that right should be actionable in tort.
However, there is a deeper link between tort law and criminal law in that the core of the
criminal law made up of offences such as murder, manslaughter, rape, assault, theft, and
criminal damage to property exists to punish people who deliberately or recklessly violate
the basic rights that we are supplied with by tort law. In this way, the criminal law helps
protect our rights from being violated. So there are many cases where someone who commits
a tort known in legal parlance as a tortfeasor will commit a crime as well. If A hits B for
no good reason, that is a tort and a crime battery, in both cases. If a man has sexual
intercourse with a woman without her consent, that is a tort battery. If he had no reasonable
grounds for believing that she was consenting to have sex with him, then he will also have
committed a crime rape. If a doctor fails to treat a patient properly with the result that
the patient dies, the doctor will have committed a tort negligence. If the doctors failure
to treat the patient properly was so culpable as to be worthy of punishment, then the doctor
will also have committed a crime gross negligence manslaughter. If A drives off Bs car
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Osman v United Kingdom [1998] EHRR 101.