This set of notes contains easy-to-follow, colourful tables that summarise the fundamental concepts one needs to understand to excel in any Criminal Law module (e.g. recklessness, intention, mens rea). The document contains summaries of academic articles/ opinions, which are helpful for essay quest...
Academic source Summary
Ashworth, The scope of criminal liability for - distinction between the conventional view — criminal
omissions law ought to be reluctant to impose liability for
omissions except in serious and clear cases, and the
social responsibility view — the moral distinction
claimed by supporters of the former view is not that
easy to draw + sometimes, it may be fair to place
citizens under obligations to render assistance to
others given the extent to which they rely on one
another.
- conventional view — individual liberty + autonomy /
social responsibility view — social welfare +
communitarian ideas.
Simester, Why omissions are special - the importance of the moral distinction between acts
and omissions depends on considerations of
responsibility.
- distinction between acts and omissions based on
movement and non-movement is mistaken — same
instance of behaviour may constitute both things done
and not done, e.g. hunger striking does not involve a
movement per se, while reading a novel instead of a
textbook does.
- Moore supports the movement/ non-movement
distinction — Simester disagrees with his position
because he finds it to be overly narrow.
- Honore — supports distinction between acts and
omissions by reference to interventions and non-
interventions, i.e. whether something leads to a change
in the baseline of the world: [T]hat what explains the
difference between doing and not-doing is the notion
of intervening in the world so as to bring about
change; and that at a secondary level this notion
extends to the interruption of human routines. If the
human routine is required by a norm, the violation of
it is an omission which will entail responsibility.
- the criminal law ought to restrict liability for not-
doings more severely than for doings:
- omissions less culpable than acts
- opposed to the neutrality thesis (advanced by
Bennett), which states that they are morally
equal if they lead to the same effect.
- Honore — acts make things worse by
intervention, while omissions merely fail to
make things better by non-intervention.
- the aim of the criminal law is to preserve the
stability of the world by preventing harm, rather
than coercing benefits. (Honore)
- if a legal system proscribed not-doings
alongside doings, it would be overly intrusive —
it is desirable for a legal system to minimise the
way in which it deprives its subjects of
behavioural options => if there was no
distinction between acts and omissions in the
criminal system, individuals would have far
fewer options of avoiding liability. (Simester)
- human nature — we are entitled to prioritise out
own interests + not act for the benefit of
somebody else in absence of ‘distinct
duty’ (Honore).
- the responsibility thesis — a doctrine of general
liability for not-doings would result in a system
which is largely insensitive to ideas of
individual autonomy and authorship => liberty
not to act.
, distinction between acts/ omissions and criminalisation
not based on movement (position untenable)
based on responsibility (Simester)
baseline argument
introduction of bad Samaritan laws
impractical
counter-productive effect
overly vague
difficult to prove MR
too much prosecutorial discretion
infringement on liberty
autonomy vs. social responsibility
utilitarian grounds untenable
wishful thinking
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