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Published online by Cambridge University Press: 17 December 2020
I argue that instead of analysing a criminal offence's conduct element in terms of acts and omissions, we should ask whether the defendant has belied a contextually salient expectation as to how she should, or routinely would, conduct herself. Slightly different sets of expectations are salient depending on whether our interest is in questions of criminalisation, or the proper interpretation of existing offences, but the criminal law is normally interested only in conduct-tokens that belie a relevant expectation. Belying such an expectation need not itself suggest culpability, but it does mark out the conduct as remark-able, in the sense of being ‘worthy of remark’.
I argue that this ‘Remark-able Conduct Requirement’ (RCR) analysis helps us narrow the field of conduct-tokens that are normatively appropriate candidates for criminalisation, and when adapted for use in interpreting existing offences it: (a) generates familiar and plausible liability outcomes; (b) simplifies the application of the law; (c) offers a principled argument to limit the scope of offences drafted in overly broad terms, by excluding innocuous doings from potential criminal liability; and (d) suggests ways to make progress on philosophical puzzles about how we should conduct ourselves.
Associate Professor, UCL Laws. Versions of this paper were presented at seminar series at Trinity College Dublin, Nottingham University, Oxford University, UCL, and the Universities of Edinburgh and Glasgow (jointly). A more polished version was presented at the 2020 SLS Conference. I am grateful for the insightful comments, suggestions, and criticisms of those who attended. My particular thanks to Matthew Gibson, James Chalmers, John Child, David Prendergast, Ivana Bacik, William Binchy, Paul Roberts, my Philosophical Foundations of the Common Law class at UCL Laws in 2019–20; Alex Sarch; Miles Jackson, Ian Williams, Kevin Toh, Sarah Davies, Daniela Simone, Rory Kelly, Jonathan Herring, Antony Duff, Sandra Marshall, Lindsay Farmer, Chloe Kennedy, Andrew Cornfield, JP Fassnidge, Rebecca Probert, James Lee, Christian Witting, and the anonymous referees.
1 R v Hughes [2013] UKSC 56 at [32]–[33].
2 Simester, AP and Sullivan, GR ‘Causation as fault’ (2014) Cambridge Law Journal 14CrossRefGoogle Scholar at 17.
3 Simester, AP ‘Causation in (criminal) law’ (2017) 133 LQR 416Google Scholar at 440–441.
4 As I use it, the term ‘conduct-token’ is neutral as to whether the agent's conduct was an act or an omission.
5 Ashworth, A Positive Obligations in Criminal Law (Oxford: Hart Publishing, 2013) p 31Google Scholar; Simester, AP ‘Why omissions are special’ (1995) 1 LT 311Google Scholar at 319–320; Honoré, T ‘Are omissions less culpable’ in Responsibility and Fault (Oxford: Hart Publishing, 1999) p 47Google Scholar; Glover, J Causing Death and Saving Lives (Penguin, 1977) p 95Google Scholar.
6 Kleinig, J ‘Criminal liability for failures to act’ (1986) 49(3) Law & Contemporary Problems 161Google Scholar at 165.
7 Feinberg, J Harm to Others (Oxford: Oxford University Press, 1984) pp 159–163Google Scholar.
8 Kleinig, above n 6, at 164–166. See also Chiao, V ‘Action and agency in the criminal law’ (2009) 15 Legal Theory 1CrossRefGoogle Scholar at 16–18.
9 See generally Mathis, S ‘A plea for omissions’ (2003) 22(2) Criminal Justice Ethics 15CrossRefGoogle Scholar at 21–23.
10 Kleinig, above n 6, at 164, 167, 169; Feinberg, above n 7, pp 161–162; Simester, above n 5, at 320.
11 Kleinig, above n 6, at 169.
12 Kleinig, above n 6, at 170; Honoré, above n 5, p 65.
13 cf Simester, above n 5, at 320 and Honoré, above n 5, pp 47, 53 for whom ‘omission’ is a pejorative term. My intuitions differ – I see nothing wrong with saying that the creature of habit who, uncharacteristically, does not put her pen in her pocket omitted to do so, even though there are no pejorative connotations to not carrying a pen.
14 Feinberg, above n 7, p 161.
15 Kleinig, above n 6, at 164. See also Simester, above n 5, at 320.
16 Kleinig, above n 6, at 176 hints at this. See also Feinberg, J Doing and Deserving (Princeton University Press, 1970) p 202Google Scholar.
17 See Kleinig, above n 6, at 165, who discusses a structurally similar example.
18 M Dsouza Rationale-Based Defences in Criminal Law (Oxford: Hart Publishing, 2017) pp 47–88, especially at p 86. A similar proposition is also defended by d'Almeida, L Duarte Allowing for Exceptions: A Theory of Defences and Defeasibility in Law (Oxford: Oxford University Press, 2015) p 77CrossRefGoogle Scholar; and Hart, HLA ‘The ascription of responsibility and rights’ (1948) 49 Proceedings of the Aristotelian Society 171Google Scholar. Hart subsequently retracted this paper, but Duarte d'Almeida argues that this retraction was a mistake.
19 There are several variations of this problem, but each involves a runaway trolley hurtling down a track towards a person or persons who will be killed unless our protagonist pulls a lever to divert the trolley to another track such that it will kill others: Foot, P ‘The problem of abortion and the doctrine of double effect’ (1967) 5 Oxford Review 1Google Scholar at 3. See also JJ Thompson ‘The trolley problem’ in Essays on Moral Theory (Harvard, 1986) p 94.
20 With the possible exception of DN Husak ‘Does criminal liability require an act?’ in RA Duff (ed) Philosophy and the Criminal Law: Principle and Critique (Cambridge: Cambridge University Press, 1998) p 60, who makes some similar claims, but works with a different (all-things-considered) conception of what it is reasonable to expect of people. RA Duff Answering for Crime (Oxford: Hart Publishing, 2009) pp 99–100, 106–107 hints at something similar when he argues that only actions, not acts, are fundamentally of interest to the criminal law, qua a fundamentally social or civic enterprise. For Duff, action may take the form of either a ‘positive’ act or a ‘negative’ omission, provided that the conduct-token actualised the result of the agent's practical reasoning, by bringing about some movement, condition, or state of affairs (which is of potential concern to the criminal law) as either an intended result or a side-effect of some other intended result. However, Duff is concerned in his discussion with the larger question of what conduct is properly subjected to criminal punishment. This shapes his conception of ‘action’ as something that necessarily involves the exercise of our capacity to engage in practical reasoning and intentionality as to some result. For the narrower examination of criminal conduct with which I am concerned, I can make do with the more austere concept of voluntariness, and leave questions of intention and reasoning to be addressed when considering mens rea and rationale-based defences.
21 Honoré, above n 5, p 43.
22 Mathis, above n 9, at 29.
23 Similarly, consider Simester's, above n 5, at 314, example of a person who has an epileptic fit while holding a rope. In Simester's example, the fit causes the rope to be flung towards a drowning person, who is thereby saved. But if the fit caused the rope to be pulled out of the drowning person's reach moments before she grabbed it, we could still deny that our epileptic did an ‘act’ of interest to the criminal law, since the criminal law is only interested in things done by persons with the capacity for voluntary conduct.
24 Husak, above n 20, p 79.
25 Just as, presumably, we could add facts to make ‘mere’ non-doings more plausible candidates for criminalisation.
26 When this happens, the law typically expressly identifies the previously quotidian doing (or non-doing, as the case may be) as the criminalised conduct-token. For instance, smoking used to be ubiquitous in English pubs. When it was made an offence, s 7 of the Health Act 2006 specifically identified the previously quotidian conduct of smoking in (what the Act identified as) a smoke-free place as the conduct element of the offence.
27 R v Adomako [1995] 1 AC 171; R v Misra [2004] EWCA Crim 2375; R v Rudling [2016] EWCA Crim 741.
28 In R v Rose [2017] EWCA Crim 1168, for instance, the court referred to s 26(1) of the Opticians Act 1989 and reg 3(1) of the Sight Test (Examination and Prescription) (No 2) Regulations 1989 to identify how the defendant, an optician, was expected to conduct herself. Another example of the court identifying applicable expectations by looking beyond the offence charged to other areas of law is the case of Airedale NHS Trust v Bland [1993] AC 789, which I discuss in section 3(b) below.
29 Ashworth, above n 5, pp 44–46, D Ormerod and K Laird Smith, Hogan, and Ormerod's Criminal Law (Oxford: Oxford University Press, 15th edn, 2018) p 51.
30 R v Stone and Dobinson [1977] QB 354; R v Sinclair, Johnson and Smith (1998) 148 NLJ 1353.
31 R v Pittwood (1902) 19 TLR 37.
32 [1983] 2 AC 161, at 177–178.
33 The overriding reasons may come from principle – perhaps commissions tout court are normatively more significant in adjudicating criminal responsibility than omissions tout court. I doubt that, but cannot defend my position here. Alternatively, the overriding reason may come from policy – perhaps a law criminalising a failure to make an easy rescue would intrude too much into our liberty, or be too difficult to enforce. Admittedly, the success of such policy arguments depends on jurisdiction-specific contingent factors, to be evaluated by jurisdictional lawmakers. Still, I find such policy claims unconvincing: we uncomplainingly countenance various other duties to act in this jurisdiction, and many other jurisdictions manage to accommodate ‘Bad Samaritan’ laws within their systems without significantly greater resources.
34 See in this connection Jackson, M ‘Virtuous accomplices in international criminal law’ (2019) 68 ICLQ 817CrossRefGoogle Scholar at 830–831; K Ambros ‘Omissions’ in K Ambros et al (eds) Core Concepts in Criminal Law and Criminal Justice: Volume I (Cambridge: Cambridge University Press, 2020) p 17 at pp 18–19.
35 Simester, above n 5, at 315–316.
36 Feinberg, above n 7, pp 176–179.
37 Kleinig, above n 6, at 177: ‘What illuminates the situation are… the unexpected elements in the situation’; JL Mackie ‘Responsibility and language’ (1955) 33(3) Australasian Journal of Philosophy 143 at 144–145, who argues that: ‘In seeking the cause of an event we are assuming some field and looking for the differentia which marks off within that field the cases where the event occurs from those where it does not. This differentia is not itself part of the field, but an intrusion into it. It follows that the answer to the question “What is the cause of this event?” will vary according to the field with implicit reference to which the question is asked’. See also J Bennett ‘Morality and consequences’ in SM McMurrin (ed) The Tanner Lectures on Human Values The Tanner Lectures on Human Values (University of Utah Press, 1981) pp 84–86; and Honoré, above n 5, pp 50–51; RA Duff Criminal Attempts (Oxford: Oxford University Press, 1996) pp 94–97; Sarch, AF ‘Knowledge, recklessness and the connection requirement between actus reus and mens rea’ (2015) 120 Penn State Law Review 1Google Scholar at 40–41.
38 See Smith, Hogan, above n 29, pp 46–47 for a discussion of some such offences.
39 Hughes, above n 1, at [36]. See also R v Taylor [2016] UKSC 5.
40 R v Gresham [2003] EWCA Crim 2070.
41 R v Lowe [1973] QB 702.
42 AP Simester et al Simester and Sullivan’s Criminal Law (Oxford: Hart Publishing, 7th edn, 2019) pp 425–26.
43 Simester, Sullivan, above n 42, pp 425–26.
44 Smith, Hogan, above n 29, pp 839–840.
45 Hughes, above n 1.
46 R v Williams (Jason) [2011] 1 WLR 588
47 For further discussion of this trend see Cornford, A ‘Narrowing the scope of absurdly broad offences: the case of terrorist possession’ (2017) 38(3) Statute Law Review 286Google Scholar.
48 Smith, Hogan, above n 29, p 412 in the context of attempts; see also similar concerns in relation to the Serious Crime Act offences at 476, 478, 487, 490.
49 Simester, Sullivan, above n 42, p 313 in relation to the Serious Crime Act offences.
50 A Cornford and A Petzsche ‘Terrorism offences’ in Ambros et al, above n 34, p 172 at p 180.
51 For instance, the offence in s 58 of the Terrorism Act 2000 criminalises the collection, possession, or viewing of information likely to be useful to someone preparing or committing a terrorist act. The offence does not specify any mens rea. Instead, it makes the absence of what are typically mens rea elements – knowledge as to the nature of the contents of the concerned document or record, or performing the actus reus for reasons of academic or journalistic research – a defence. In effect this lifts the burden of proving an element of the offence off the prosecution, and imposes on the defendant the burden of disproving it. See in this connection R v G [2009] UKHL 13; Cornford, above n 47. The same approach to offence creation is reflected in other Terrorism Act offences, including the offences under ss 57, 58A and 58B.
52 Cornford, above n 47.
53 Which is how Simester and Sullivan, above n 2, and Simester, above n 3, read that case.
54 Sweet v Parsley (1969) 53 Cr App R 221 at 230; R v Robinson-Pierre [2013] EWCA Crim 2396 at [36]–[37]. One example of parliament expressly making innocuous doings satisfy the conduct requirement is in the offence of burglary under s 9(1)(a) of the Theft Act 1968, in which the only conduct required is ‘entering’ a building or part thereof. The rest of the provision requires that this conduct must be done in specified circumstances and with a specified ulterior intent.
55 Chiao, above n 8, at 8–14 reaches compatible conclusions.
56 On this view, pace Simester, above n 5, at 326–327, and Honoré, above n 5, p 49, it is a mistake to think of the duties to act recognised by the criminal law as ‘overriding factors’; they have nothing to override.
57 [1993] AC 789.
58 At 866, 881–882, and 897–898.
59 Something similar was actually suggested to the House of Lords by the Official Solicitor (837–838), but a majority of the court considered itself obliged to analyse the facts of this case by reference to the existing doctrinal distinction between acts and omissions.
60 The House of Lords ruled (at 858–859, 870, 876, 882–883, 897–898) that in medical law, the provision of nourishment by means of a nasogastric tube amounted to medical treatment, and that doctors were under a duty to provide medical treatment in the best interests of the patient. Since existing in a persistently vegetative state did not benefit the patient, the House of Lords held that there was no duty to provide this medical treatment.
61 [1969] 1 QB 439.
62 Some of these problems have been pointed out by AJ Ashworth ‘Assault occasioning actual bodily harm’ [2004] Crim LR 471.
63 R v Miller [1983] 2 AC 161; DPP v Santana-Bermudez [2003] EWHC 2908 (Admin).
64 Honoré, above n 5, pp 65–66, Simester, above n 5, at 330–332.
65 See also Tadros, V ‘Criminal omissions: culpability, responsibility and liberty’ in Criminal Responsibility (Oxford: Oxford University Press, 2005) p 207Google Scholar.