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

This article examines the omission–commission binary divide that is of extant significance within Anglo-American criminal law theory and doctrine. In English law, it has been encaptured in a seminal academic debate between Williams and Ashworth, who have propagated opposite stances with respect to criminal liability for omission. American law has also witnessed significant scholarly discourse in this arena, especially on the propriety of the legal duty requirement. Leavens has proposed we abolish this requirement and the act/omission distinction altogether, examining instead the causal link between the offender’s course of conduct and the prescribed harm(s). Normative and philosophical debates within American and English law and particularised concerns applicable to substantive precepts in each jurisdiction are evaluated. An array of issues are deconstructed, notably the legal duty requirement and its scope, the offences that may be committed by omission and specific concerns that Anglo-American law fails to meet fair warning and legality standardisations. There is a novel and distinctive comparative analysis of alternative perspectives on criminalisation, and creation of a dangerous situation and legal duty to rescue principles are analysed via dépecage (issue splitting) analysis across a spectrum of five bespoke compartmentalisations. Good Samaritan laws as part of optimal reform proposals on failure to rescue and failure to report harm(s) are proposed.