Glanville Williams on Criminal Omissions

Introduction to the Debate

• Glanville Williams, a "conventionalist," replies to Professor Ashworth's "social responsibility view" on criminal omissions.

• Ashworth argues there's no fundamental moral distinction between an act and an omission when a duty to act is established.

• Williams criticizes Ashworth's portrayal of the "conventional view" as a narrow, selfish 19th-century individualism, calling it "shadow-boxing."

The Conventional View on Criminal Omissions

• Exceptional Nature: Omissions liability should be exceptional and individually justified.

• Clear Legislation: Imposed by clear statutory language; active verbs should not be construed to include omissions without genuine statutory implication.

• Proportionate Penalties: Maximum penalties for active wrongdoing should not automatically extend to omissions; penalties for omissions need separate assessment.

• Societal Priority: Society's primary task is repressing active wrongdoing; addressing omissions is secondary and not always best suited for the criminal process.

• Moral Distinction: There's a moral distinction between wrongful action and inaction (e.g., killing vs. letting die), reflecting stronger inhibitions against active wrongdoing.

• Specificity of Duty: Crimes of omission typically target specific classes of persons or beneficiaries, requiring a clear definition of duty scope, unlike general prohibitions against active wrongdoing.

• Principle of Legality: Convicting for omissions under verbs implying active conduct breaches legality and constitutes unfair "labelling."

• Practical Enforcement: Law enforcement agencies are already overburdened; extending criminality to vast groups for omissions is practically impossible.

Critique of Ashworth's "Social Responsibility" Proposals

• Duty to Assist Those in Peril ("Easy Rescue"):

  • Williams supports a limited "easy rescue" duty, but only with a maximum penalty of a fine and/or community service, not imprisonment, to avoid "judicial cruelty" (referencing Mr Stone $[1977]$ Q.B. $354$).

    • Case Reference: Mr Stone $[1977]$ Q.B. $354$ (illustrates "judicial cruelty" concerns in 'easy rescue' duty).

  • Considers it a low priority for new criminal legislation.

• Duty to Take Reasonable Steps Towards Law Enforcement:

  • Williams strongly opposes this, seeing it as a revival of "misprision of felony," an offense abolished in $1967$ due to problems (e.g., forcing reporting on family/friends).

    • Historical Legal Point: Misprision of felony, an offense abolished in $1967$ (illustrates problems with compelling citizens to report crimes).

  • Advocates for citizens acting from a "sense of citizenship" rather than legal compulsion.

• Duty to Ensure Health and Welfare of One's Children:

  • Acknowledges this is largely existing law (e.g., manslaughter, wilful neglect).

  • Criticizes the overly wide scope of manslaughter and the maladministration of "wilful neglect."

  • Highlights judicial failures in cases like the "hair drier case" (Burcher, The Times, July $21$, $1987$), where a father was convicted for "simple misjudgment or incompetence" rather than "wilful" neglect, contrary to Sheppard $[1981]$ A.C. $394$.

    • Case Reference: Burcher ('the hair drier case', The Times, July $21$, $1987$) (illustrates judicial failures in interpreting 'wilful' neglect).

    • Case Reference: Sheppard $[1981]$ A.C. $394$ (defines 'wilful' neglect).

  • Deems the increased maximum sentence for neglect without intent to harm (Criminal Justice Act $1988$, s. $45$) as excessive and counterproductive, advocating against custodial sentences for inadvertent negligence without foresight of high probability of harm.

    • Relevant Legislation: Criminal Justice Act $1988$, s. $45$ (increased maximum sentence for child neglect without intent to harm).

Critique of Ashworth's General Stance on "Social Responsibility"

• Judicial Interpretation: Ashworth proposes courts should judicially extend statutes penalizing acts to cover omissions based on policy, irrespective of wording.

• Violation of Principles: Williams argues this contradicts principles of statutory interpretation, fair warning, and the democratic role of the legislature.

• "Duty" Definition: Ashworth's assertion that a duty must pre-exist an omission is flawed; penal statutes can simultaneously create both the duty and the penalty for its omission.

• Confusion of Issues: Ashworth conflates legislative policy (what law should be), legislative interpretation (how to read existing law), and judicial powers (what judges can do), misapplying the "linguistic argument."

• Judicial Activism: Calls Ashworth's desire for courts to consistently interpret active verbs to include omissions (to cure "erratic" outcomes) as a push for judicial refashioning of law without parliamentary input.

Critique of the Draft Code (Law Commission)

• The Law Commission's Mark 2 Draft Code leaves judges unfettered discretion to define duty-holders and beneficiaries for "causing" offences, which Williams considers "perverse."

• Causation Rule: Criticizes the Draft Code's proposal to replace the "but for" causation rule for omissions with a "might" prevent rule, arguing it makes omitters' liability more stringent than doers', based on an unsubstantiated "close link."