ABSTRACT
Judges, then, do assess costs and risks on a regular basis, and there therefore does not seem to be any good reason not to ask them to do so when applying a Bad Samaritan law. Malm remains unmoved by such considerations, for the following reason: if judges make a mistake of judgement, and end up convicting someone who in fact was not under a moral duty to rescue (for the cost in her case was indeed too high), they will unfairly impose a penalty on her. The prospect of unfair convictions presents us with a dilemma. If we make the penalty light, i.e. a £100 fine, so as to alleviate the effects of unfair convictions, we send the wrong signal to genuinely Bad Samaritans, since we are, in effect, telling them that their failure to rescue is not that reprehensible-that it is less reprehensible, for example, than stealing a car, for which one can incur a jail sentence. If we do make failures to perform easy rescues punishable by a jail sentence (as is the case in France, for example) in order to impress on them that their failure to rescue is very serious, we risk sending to jail innocent people.
