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Liability for omissions in the criminal law

  • J. C. Smith (a1)


Common lawyers have long shown a remarkable reluctance to impose criminal liability for omissions. Such liability, it has recently been said, is ‘uncongenial’ — and this seems to be right. Even where the law does, in reality, impose liability for omissions we find courts and writers trying to explain the phenomenon on some other ground. The feeling seems to be that, because the imposition of liability for an omission implies a duty to act it is an interference with the liberty of a person who wishes only to mind his own business and let others get on with minding theirs. Moreover omissions do not cause evil results in the same obvious sense as acts.



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1. Hyman Gross A Theory of Criminal Justice (1979) p 62.

2. Fletcher Rethinking Criminal Law (1978) p 371; Of course, a bystander may cause death in the trivial sense that ‘but for’ his failure to act, the victim would not have died. But there is no causing of death in the sense implicit in the tradition of homicidal tainting.’

3. (4th edn), Article 212.

4. A Theory of Criminal Justice p 63. It is, apparently, ‘an illusion’ that liability for an omission is simply liability for failing to do what is required.

5. Smith & Hogan Criminal Law (5th edn) p 46.

6. Op cit P 64.

7. Op cit pp 64–65.

8. Ibid.

9. (1869) 11 Cox CC 210.

10. (1902) 19 TLR 37.

11. ‘Doctors as Murderers’ [1982] Crim LR 17 at 22. It is difficult to follow Ms Beynon's further opinion that ‘there would have been some sense in this since after all the accusation was that the accused failed to open a shut gate, not that he failed to shut an open gate’.

12. [1982] 2 All ER 386, CA; affirmed, [1983] 3 All ER 978, HL.

13. (1978), pp 143–144. This passage is omitted from the second edition, 1983.

14. P 392.

15. As A. P. Herbert makes his fictional Lord Mildew say, ‘there is too much of this dammed deeming’.

16. [1983] 1 All ER 978.

17. P 983. Lord Diplock expressed a preference for the word ‘responsibility’ instead of ‘duty’. ‘Duty’ suggests ‘an obligation owed to another person, ie the person to whom the endangered property belongs, whereas a criminal statute defines combinations of conduct and state of mind which render a person liable to punishment by the state itself.’‘Duty’ is, however, a term which has long been used throughout the common law world in the exposition of the criminal law relating to omissions without apparently creating any difficulty.

18. See p 981, e-f, p 983, e-f.

19. P 982, g-j.

20. [1961] AC 290.

21. (1910) 103 LT 279.

22. Caldwell [1981] 1 All ER 961, HL; Elliott v C [1983] 2 All ER 1005.

23. Cunningham ([1957] 2 QB 396) recklessness still applies in offences governed by the word ‘maliciously’. See Smith & Hogan Criminal Law (5th edn) pp 52–56 W v Dolbey [1983] Crim LR 681.

24. Belfon [1976] 3 All ER 46, CA.

25. Hyam v DPP [1975] AC 55, HL.

26. Smith & Hogan Criminal Law (2nd edn, 1969), p 36, n 7, opining that Commonwealth v Cali (1923) 247 Mass 20, a case with facts similar to Miller, would not apply in English law.

27. Textbook (1st edn) p 144.

28. See correspondence at [1982] Crim LR 773–774.

29. Professor Williams writes: ‘This is not so. Such a driver would not come within the words of the statute; he would not have driven recklessly’. This is, of course, true - but it seems to overlook the ‘deeming’.

30. See [1982] Crim LR 773.

31. See Smith (1869) 11 Cox CC 210, above n 9.

32. Hughes (1857) Dears & Bell 249.

33. (1919) 13 Cr App R 134.

34. If the defendant intended the consequence, he ought in principle to be guilty of an attempt, but there seems to be no authority on the question whether there can be an attempt at common law. The English Criminal Attempts Act 1981 requires an act and it is by no means certain that this would include an omission. See Ian Dennis [1982] Crim LR 7, Smith & Hogan Criminal Law (5th edn) p 263.

35. [1976] VR 452.

36. [1983] 3 All ER 448. See commentary [1984] Crim LR 37.

37. [1983] 3 All ER 448.

38. Clarence (1881) 8 QBD 54 per Wills J agreeing with Stephen J.

39. [1969] 1 QB 439, DC.

40. P 143.

41. [1969] 1 QB at 446.

42. [1980] 1 NZLR 59.

43. Smith & Hogan Criminal Law (5th edn) pp 384–385. See also the recommendation of the Criminal Law Revision Committee, Fourteenth Report, Cmnd 7844, paras 252–256.

44. Section 2.01(3).

45. See Tentative Draft No 4, p 123.

46. Sections 32 and 43.

47. Note 43, above.

Liability for omissions in the criminal law

  • J. C. Smith (a1)


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