Criminal Law Omissions
It is often asserted that liability for omissions is exceptional in English criminal law. How convincing is this claim?
To assert that liability for omissions is 'exceptional ' is to make two claims. If exceptional is taken simply to mean rare, one claim is that omissions are infrequently criminalised. However, if exceptional is taken to mean forming an exception then there must exist a general rule from which such an exception may depart. This claim is questionable, and will be explored first on a statutory level, where liability for omissions is not exceptional, and then on a common law level where there does seem to be a general rule-and-exceptions framework. Ultimately then, because statues are incorporated into the common law framework through judicial interpretation, the original claim, at least by the second definition of exceptional, is convincing. This definition of ‘exceptional’ as forming an exception will be considered first.
It is impossible to derive from statutes a general rule that a person will not be liable for simply failing to act. This is because, “in contrast to the position at common law, many statutes make it a specific offence to omit to do something”. Omissions are criminalized in both relatively minor offences such as failing to wear a seatbelt, and major offences such as wilfully neglecting a child in a manner likely to cause injury. These examples show that there is no criterion that connects and distinguishes the statutes which criminalize omissions from those which criminalise acts. In fact, as Ashworth notes, clauses describing liability for omissions, rather than acts, have been assigned to legislation somewhat randomly: “it is often a technicality of drafting as to whether an offence is framed in terms of omission or commission”. Some may argue that the fact that there is no common factor linking all statues which impose liability on omissions, is what makes each of them exceptional.
However this argument is
To assert that liability for omissions is 'exceptional ' is to make two claims. If exceptional is taken simply to mean rare, one claim is that omissions are infrequently criminalised. However, if exceptional is taken to mean forming an exception then there must exist a general rule from which such an exception may depart. This claim is questionable, and will be explored first on a statutory level, where liability for omissions is not exceptional, and then on a common law level where there does seem to be a general rule-and-exceptions framework. Ultimately then, because statues are incorporated into the common law framework through judicial interpretation, the original claim, at least by the second definition of exceptional, is convincing. This definition of ‘exceptional’ as forming an exception will be considered first.
It is impossible to derive from statutes a general rule that a person will not be liable for simply failing to act. This is because, “in contrast to the position at common law, many statutes make it a specific offence to omit to do something”. Omissions are criminalized in both relatively minor offences such as failing to wear a seatbelt, and major offences such as wilfully neglecting a child in a manner likely to cause injury. These examples show that there is no criterion that connects and distinguishes the statutes which criminalize omissions from those which criminalise acts. In fact, as Ashworth notes, clauses describing liability for omissions, rather than acts, have been assigned to legislation somewhat randomly: “it is often a technicality of drafting as to whether an offence is framed in terms of omission or commission”. Some may argue that the fact that there is no common factor linking all statues which impose liability on omissions, is what makes each of them exceptional.
However this argument is
Bibliography: Journal Articles ASHWORTH, A., 1989 Vol. 105. (07/1989) pp.424-459. ELLIOT, T. and ORMEROD, D., 2008. Acts and Omissions: A Distinction without a Defence, Cambrian Law Review, Vol