Anglo-American Perspectives on Omissions Liability: Theoretical and Substantive Contours of Criminalisation and Optimal Reform Pathways

Reed, Alan and Sarahne, Muhammad (2021) Anglo-American Perspectives on Omissions Liability: Theoretical and Substantive Contours of Criminalisation and Optimal Reform Pathways. Journal of International and Comparative Law, 8 (1). pp. 205-248. ISSN 2313-3775

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Abstract

This article examines the omission–commission binary dividethat is of extant significance within Anglo-American criminal law theory anddoctrine. In English law, it has been encaptured in a seminal academic debatebetween Williams and Ashworth, who have propagated opposite stances withrespect to criminal liability for omission. American law has also witnessedsignificant scholarly discourse in this arena, especially on the propriety of thelegal duty requirement. Leavens has proposed we abolish this requirementand the act/omission distinction altogether, examining instead the causallink between the offender’s course of conduct and the prescribed harm(s).Normative and philosophical debates within American and English law andparticularised concerns applicable to substantive precepts in each jurisdictionare evaluated. An array of issues are deconstructed, notably the legal dutyrequirement and its scope, the offences that may be committed by omissionand specific concerns that Anglo-American law fails to meet fair warning andlegality standardisations. There is a novel and distinctive comparative analysisof alternative perspectives on criminalisation, and creation of a dangeroussituation and legal duty to rescue principles are analysed via dépecage (issuesplitting) analysis across a spectrum of five bespoke compartmentalisations.Good Samaritan laws as part of optimal reform proposals on failure to rescueand failure to report harm(s) are proposed.

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