The principle of criminal liability for omissions challenges core tenets of English law, which generally demands positive acts rather than failures to act. This essay examines whether such liability is fair, drawing on established case law and academic perspectives. It argues that while exceptions promote accountability in defined relationships, the approach risks inconsistency and overreach.
The General Rule and Policy Rationale
English criminal law traditionally imposes no duty to rescue or intervene, reflecting liberal individualism (Williams, 1983). Liability arises only where a pre-existing duty exists, preventing the criminalisation of mere inaction that might chill personal freedom. This stance aligns with fairness by limiting state intervention to clear relational obligations.
Exceptions Established Through Case Law
Courts have carved exceptions. In R v Gibbins and Proctor (1918) 13 Cr App R 134, parents were liable for neglecting their child, based on familial duty. R v Stone and Dobinson [1977] QB 354 extended this to voluntary assumption of care, where defendants failed to seek medical help for a dependent adult. More controversially, R v Miller [1983] 2 AC 161 held a squatter liable for failing to extinguish a fire he accidentally started, creating a duty through prior conduct. These decisions illustrate how duties arise from contract, relationship, statute or dangerous acts, yet critics note their ad hoc development (Ashworth, 1989).
Academic Commentary on Fairness
Andrew Ashworth contends that omissions liability can undermine fairness when duties remain unpredictable or disproportionately burden vulnerable individuals (Ashworth, 2009). Glanville Williams similarly highlights that criminalising omission blurs act/omission distinctions, potentially punishing those without resources to act effectively (Williams, 1991). Conversely, some scholars argue that in modern society, limited omissions liability upholds social solidarity without excessive intrusion.
Assessment of Fairness
The current framework offers coherence where duties are clear but falls short on fairness due to retrospective judicial expansion. Cases like R v Evans [2009] EWCA Crim 650 demonstrate ongoing uncertainty, leaving ordinary citizens unsure of obligations. Therefore, codification of duties could improve predictability while preserving core protections.
In conclusion, liability for omissions serves legitimate protective goals yet raises legitimate fairness concerns through inconsistent application. Refinement via statute would better balance individual liberty and communal responsibility.
References
- Ashworth, A. (1989) ‘The scope of criminal liability for omissions’, Oxford Journal of Legal Studies, 9(3), pp. 303–321.
- Ashworth, A. (2009) Principles of Criminal Law. 6th edn. Oxford: Oxford University Press.
- R v Evans [2009] EWCA Crim 650.
- R v Gibbins and Proctor (1918) 13 Cr App R 134.
- R v Miller [1983] 2 AC 161.
- R v Stone and Dobinson [1977] QB 354.
- Williams, G. (1983) Textbook of Criminal Law. 2nd edn. London: Stevens & Sons.
- Williams, G. (1991) ‘Criminal omissions: The conventional view’, Law Quarterly Review, 107, pp. 86–106.
