Victor Tadros - Criminal Responsibility - Criminal Omissions Culpability Responsibility and Liberty

7
Criminal Omissions: Culpability,

Responsibility and Liberty
The following events take place around half the way through Ian McEwans novel
Amsterdam. Clive Linley, a successful composer, goes out hiking in the Lake
District to get inspiration for his latest work. Cramped in London, he had found
it difficult to make progress on the piece, but as he walked, he began to hear in his
mind the music that had eluded him. He stopped and began to write out the notes
when he heard another sound, another voice. He almost resisted the temptation
to look up, but could not resist. Peering over the top of a slab, he found himself
looking down on a man and a woman, the woman he had seen earlier as he had set
off on the hike. He ducked down and continued with the notes, ignoring the
womans voice when he heard it. It took a moment for his inspiration to return,
but soon he was scribbling out the notes again. Suddenly he heard her voice
raise to a shout. He saw the two begin to struggle, and he considered what to do.
He thought about running down to help, but even if the man ran off, which
he thought was unlikely, he would have lost his inspiration. More likely, he
thought, the man would turn on him. Then he considered his inspiration on
which so much depended, his symphony, his reputation, a celebration, the
lamented centurys ode to joy. McEwan goes on:
At the sound of an angry voice he opened his eyes and pulled himself up to take another
look. The man had hold of her wrist and was trying to drag her round the tarn towards the
shelter of the sheer rock face directly below Clive. She was scrabbling on the ground with
her free hand, possibly looking for a stone to use as a weapon, but that only made it easier
for him to jerk her along. Her backpack had sunk from sight. All the while he was talking
to her, his voice having dropped again to its unceasing, indistinct drone. She made a
sudden pleading whimpering sound and Clive knew exactly what it was he had to do. Even
as he was easing himself back down the slope he understood that his hesitation had been a
sham. He had decided at the very moment he was interrupted.
On level ground he hurried back along the way he had come, and then dropped down
along the western side of the ridge in a long arc of detour. Twenty minutes later he found a
flat-topped rock to use as a table and stood hunched over his scribble. There was almost
nothing there now. He was trying to call it back but his concentration was being broken by
(London: Vintage, 1998). Amsterdam 87.
Criminal Responsibility. Victor Tadros.

Oxford University Press 2005. Published 2005 by Oxford University Press.
Criminal Omissions 183
another voice, the insistent, interior voice of self-justification: whatever it might have
involved violence, or the threat of violence, or his embarrassed apologies, or, ultimately, a
statement to the police if he had approached the couple, a pivotal moment in his career
would have been destroyed. The melody could not have survived the psychic flurry. Given
the width of the ridge and the numerous paths that crossed it, how easily he could have
missed them. It was as if he wasnt there. He wasnt there. He was in his music. His fate,
their fate, separate paths. It was not his business. This was his business, and it wasnt easy,
and he wasnt asking for anyones help.
Clive does nothing. He does not even tell the police about the incident. Later we
discover that the man that Clive sees attacking the woman is a serial rapist and
that, although the woman that he saw being attacked managed to escape, another
woman was raped shortly afterwards. He tells his friend, Vernon, who eventually
informs the police.
Vernon believes that Clive has failed in his moral duty at least to inform the
authorities of what he has seen, but he is told that Clive has not broken the law.
We, on the other hand, are left with little doubt that Clive was under a moral
obligation to do more than just inform the authorities. When he provides his
justification for doing nothing to the police, it is difficult not to perceive the ironic
tone when McEwan writes:
In interview, when he made his statement, the two detectives realised, so they assured him,
just how hard it must have been to write a symphony to order with a looming deadline,
and what a dilemma he had been in when he was crouching behind that rock. They seemed
rather keen to understand all the difficulties associated with composing the crucial melody.
Could he hum it for them? He certainly could.
The law and morality, McEwan makes clear, come apart. Clive has exhibited a
serious moral failing by not assisting the woman, or at least by declining to inform
the authorities afterwards. But he has committed no legal wrong.
This main focus of this chapter will be a critique of the orthodox position on
criminal responsibility. The orthodox position is that there is a distinction to be
drawn between actions and omissions, and that distinction is sufficiently powerful
such that it warrants a general principle that individuals can be criminally respon-
sible for their actions but not for their omissions. I will call this the no-liability
principle. The orthodox position is consistent with there being some exceptions
to the no-liability principle. In fact, many legal systems have such exceptions.
Exceptions are normally based on specific duties. Such duties may take different
forms.
The defendant may have a duty with regard to the particular danger which is at
issue. For example, in R v Pittwood the defendant was the gate-keeper of a railway
crossing who failed to close the gate, allowing a cart to cross the track which was
then struck by a train. The driver of the cart died of his injuries. Alternatively, the
Ibid 889. Ibid 151. (1902) 19, TLR 37.

184 Part II: Doctrines of Criminal Responsibility
defendant may have a duty with regard to the particular victim. In R v Gibbins
and Proctor the defendants were responsible for the care of Gibbins child.
Proctor was living with Gibbins. The child was neglected to the extent that she
starved to death, and criminal liability was imposed on the basis of the respons-
ibility that the defendants had for the well-being of the child. Or if the defendant
created a danger, then he is under a duty to ensure that the danger is not realised.
So in R v Miller the defendant accidentally dropped a lighted cigarette onto a
mattress in a house where he was staying. He woke to find that the mattress had
been set on fire, but rather than putting it out, he simply moved into the next
room. He was convicted of arson, even though at the time that he had the mens rea
of the offence (intention or recklessness) he was not doing anything.
However, if there are too many justified exceptions to the no-liability principle,
or those exceptions are too broad, then effectively there is no such thing as the
no-liability principle. The more exceptions to the principle that there are, or the
broader those exceptions are, the more the principle withers. For example, in
France there are general duties to assist a person in peril, to report a serious crime
and to take steps to prevent an offence. Offences of broad application such as
these are inconsistent with the no-liability principle. In this chapter, I argue that
there is good reason to believe that there is no such no-liability principle, and that
consequently there is good reason to adopt at least something like the French posi-
tion in other jurisdictions, and possibly to impose liability for existing offences
such as manslaughter in cases where the defendant fails to rescue and that failure
results in death.
My argument that the no-liability principle is not really a principle at all will be
indirect. I will consider some of the basic justifications that have been presented
for the orthodox position of the criminal law, and I will show that those
arguments do not justify that position. Three different arguments are commonly
presented to defend the no-liability principle. These are the argument from
culpability, the argument from responsibility and the argument from liberty.
The argument from culpability attempts to justify the no-liability principle on
the grounds that there is a difference in moral culpability between actions and
omissions. This is commonly known as the act/omission distinction (AOD). As I
suggested in Chapter 3, culpability is clearly central to a proper account of criminal
responsibility. Furthermore, I will show that there is good reason to think that
AOD is true. However, I will argue that AOD does not justify the no-liability
principle. The argument from responsibility attempts to justify the no-liability prin-
ciple on the grounds that individuals are, barring exceptions based on specific
duties, not responsible for the consequences of what they do not do in the same
(1918) 13 Cr App R 134. [1983] 2 AC 161.

On which, see A Ashworth and E Steiner Criminal Omissions and Public Duties: The French
Experience (1990) 10, Legal Studies 153.
My conclusions are somewhat similar to those defended in A Ashworth The Scope of
Criminal Liability for Omissions (1989) 105, LQR 424.
way that they are responsible for the consequences of what they do. This is
sometimes defended on grounds of authorship. The idea of authorship as a found-
ation of responsibility is consistent with the account of responsibility developed in
Chapters 1 and 2. However, the idea of authorship does not support the no-liability
principle. Finally, the argument from liberty attempts to justify the no-liability
principle on the grounds that imposing liability for criminal omissions restricts
liberty to a greater degree than imposing liability for actions. I will show there is
good reason to suppose that this is not generally the case. Furthermore, I will
suggest that even if it is the case, it will not justify the no-liability principle.
As the main arguments against the no-liability principle turn out to be false,
I will suggest that there is at least good reason to reject it. The main question, I will
argue, is not whether we ought to criminalise omissions as distinct from actions,
but rather how this ought to be done, for what, in what circumstances, and what
defences should be available. In the conclusions I will consider the way in which
the three arguments that have been presented for the no-liability principle might
have implications for how omissions should be criminalised. Overall, I will argue
that law and morality ought not to come apart quite as powerfully as they do.
There is, I will argue, some good reason to make Clive responsible for something,
if not rape or aiding and abetting rape.
7.1 The Argument from Culpability
The argument from culpability is perhaps the main way in which AOD (or some
other related distinction) is subject to consideration in both the legal and the
philosophical literature. The question that is commonly asked there is whether it
is morally as bad to act as it is to omit in otherwise identical cases. In the legal con-
text, Tony Honor has argued against the optimising view of morality in which
all moral considerations depend on the consequences that come about as a result
of ones decision (to act or not to act). He suggests that this view is counterintuitive.
We commonly feel greater resentment with regard to acts than we do with regard
to omissions. And he bolsters the appropriateness of our intuitions by consider-
ing the relative security provided by protecting us against wrongful action when
compared with wrongful omission: harmful intrusion threatens our security
As Samuel Scheffler has noted, different distinctions proliferate in the literature, which to some
extent overlap. They include distinctions between doing and allowing, between doing and failing to
prevent, between doing and letting happen, between doing and not doing, between action and inac-
tion, between acts and omissions, between positive agency and negative agency, between what one
does to another person directly and what merely happens to that person as a result of what one does,
and so on: Doing and Allowing (2004) 114, Ethics 215. Like Scheffler, I will not bother to decide
which distinction is the important one. Little in my argument turns on the differences between these
distinctions.
Are Omissions Less Culpable? in Responsibility and Fault (Oxford: Hart, 1999) 416 and 60.
directly. It is only that harmful intrusion that requires the secondary prevention
that those who omit fail to bring about. Such a moral distinction, he suggests, is
not present where we have a distinct duty to act. Examples of that constitute the
exceptions to the no-liability principle that I considered above. Failing such dis-
tinct duties, he suggests that the law appropriately builds on the moral distinction
between action and omission.
In order to evaluate whether action and omission are indeed moral equivalents,
we need to know something more about what are to be considered otherwise
identical cases. There are two different possibilities that might generate different
principles of equivalence. The first suggests that it is morally relevant whether
there is an action at all. Let us begin with the familiar distinction between killing
and letting die. Harry kills Barry by drowning him. Hetty, on the other hand, lets
Betty drown when it would be simple for Hetty to rescue her. Is Hetty as bad as
Harry? But there is a sense in which the consequences in these cases are not identi-
cal. What has happened is different between the cases. In Harrys case there has
been a killing. In Hettys case, on the other hand, there has been a drowning, but it
is not clear that Betty has been killed. The moral difference between the cases, it
might be argued, is that it is worse that there has been a killing than that there has
been a drowning which is not a killing.
The possibility that this makes a moral difference might lead us to look for a
second kind of case in which it might be said that there is moral equivalence
between acting and omitting. The relevant question, it might be argued, is not
whether there is moral equivalence between killing and letting die, but rather
between killing and letting kill. Consider a case in which Margaret kills Jorge.
Claudio stands by, doing nothing. Let us further stipulate that it would be very
simple for Claudio to prevent Margaret killing Jorge. Suppose, for example, that
Margaret is going to kill Jorge by electric shock and Claudio is standing by the
power switch. However, he decides not to flick the switch. Furthermore, suppose
that there is no probability whatsoever that Margaret could find out that Claudio
had flipped the switch, so there is no threat to Claudio from flipping the switch.
Finally, there is no special relationship between Claudio and either Margaret or
Jorge that would distinguish Claudio from any other member of the community
vis--vis Jorge.
The consequences of Margarets act and Claudios omission are identical. Jorge
is intentionally killed by an electric shock. Under the criminal law of England
and Wales, at least, it appears that Margaret will be criminally responsible for
Jorges death. Claudio, on the other hand, has not committed a criminal offence at
all. But now there may be another reason why other things may not be considered
equal. For in this case, the difference between Claudio and Margaret is that with
regard to Margaret there is no other person between the act of and the death of
Are Omissions Less Culpable? in Responsibility and Fault (Oxford: Hart, 1999) 636.
Or perhaps the consequences of Claudios act might even be worse than Margarets. See below.
Jorge. It was her that killed him. Claudios culpability, on the other hand, might be
qualified by the fact that the death of Jorge was Margarets responsibility, leaving
his role as secondary. There may be less moral obligation to interfere with a killing
than there is against killing.
From these two cases, we can see that there are two strategies that are open to
the person who believes that there is no difference between acting and omitting.
Firstly, it might be argued that there is no moral difference between killing and
letting die. If the consequence of ones action or inaction is death, it matters not
how that death comes about, be it a killing or any other kind of death. Secondly,
it might be argued that although the distinction between a killing and another
kind of death is significant, it is insignificant in terms of ones moral wrong
whether one kills or whether one allows another to kill. The first position allows
that there is a difference between Margaret and Claudio; it leaves open the possi-
bility that the existence of another party in Margarets case makes Claudios wrong
less serious. But it defends the moral equivalence of Harry and Hetty. The second
position allows that there is a difference between Harry and Hetty, but holds that
there is no difference between Margaret and Claudio. Those who hold that there
is no difference between Harry and Hetty will tend to hold that there is no
difference between Margaret and Claudio either. The opposite is not true.
There are at least some good arguments against both strategies concerning the
equivalence of action and omission. Let us return to Harry and Hetty. It is
relatively common that our moral intuitions about the death of Barry are quite
different from our moral intuitions about the death of Betty. It is commonly
thought that things are worse if someone is actively killed than that they die with-
out human action being involved. That there has been a killing tends to provoke
greater moral outrage than that there has been a death, even if that death was pre-
ventable. Of course, those arguing that AOD is not a proper moral principle may
embrace the fact that rejecting AOD is counterintuitive. They claim that we have
these intuitions merely because they are self-serving. But the argument from
moral intuition at least puts the burden of proof on those arguing for equivalence
to show that there is no moral difference between killing and letting die.
Concerning Margaret and Claudio, it seems counterintuitive to suppose that,
in assessing the culpability of the actions and inactions of the two agents, we
ought not to have regard to who has performed the relevant action and who has
not. It may be right for Claudio to feel terrible regret at the killing of Jorge, but
that is not the equivalent of the kind and degree of regret that ought to be felt by
Margaret at her action of killing Jorge. In fact, if we adopt the position that it is
only the consequences that are relevant and not who has done the action, then we
See, for example, J Glover Causing Death and Saving Lives (London: Penguin, 1977) and
J Bennett The Act Itself (Oxford: OUP, 1995) for well-known defences of this position.
A position defended in some detail in S Kagan The Limits of Morality (Oxford: OUP, 1989).
A point made in the legal context in P Smith Omission and Responsibility in Legal Theory
(2003) 9, Legal Theory 221.
must conclude that Claudio is more morally culpable for the death than Margaret.
For as far as Margaret is aware, there is only one morally awful action that results
from her decision: the killing of Jorge. Margaret cannot be culpable with regard to
Claudios inaction, for she was not aware of his presence. As far as Claudio is
aware, on the other hand, not only has there been a killing of Jorge, there has also
been a failure to assist in the knowledge that death would be inevitable. If we
evaluate decisions according to their expected consequences, we come to the
implausible position that ones fault for passively standing by and not preventing
others from performing morally wrongful acts is a worse wrong than perpetrating
those acts oneself.
These arguments, of course, will be insufficient to convince those who think
that AOD is not a proper moral principle that they are mistaken in their beliefs.
The philosophical literature on AOD is very extensive and sophisticated and it
will obviously be impossible to consider all of its wrinkles here. But even if AOD is
a proper moral principle, it will not justify the no-liability principle. For AOD
does not establish that omitting with severe negative consequences is not a very
great moral wrong. It only shows that it is not as great a moral wrong as it is
actively to bring those consequences about. The no-liability principle would be
justified on moral grounds only if the former were untrue.
Now, there are undoubtedly cases where our moral intuitions tell us that an
omission with negative consequences is not deserving of very powerful moral
criticism, and certainly not sufficiently powerful to justify the kind of moral
message that the imposition of criminal responsibility would send. Furthermore,
there may be equivalent actions where our moral criticism of the agent is that
powerful. Consider the following case. William sets up an alternative lottery in a
national newspaper. He invites the public to buy tickets from him for 10p each.
To minimise harm to others, he restricts purchase of tickets to one each. In fact, he
intends to pocket the money without giving out a prize. He brags about this down
the local pub where Cathy, amongst a group of other people, overhears. She does
nothing. It is worth making William criminally responsible for defrauding those
who buy the tickets. We rightly feel indignant towards him for exploiting others.
On the other hand, it is not clear that we ought to feel any powerful moral indig-
nation at Cathy for doing nothing about it. Ideally we might want her to inform
the authorities, or expose Williams scam in some other way. But that she does not
behave ideally does not justify us feeling indignant towards her.
There are instances, then, where the moral difference between action and
omission is sufficiently significant that it distinguishes cases where the attribution
of criminal responsibility is appropriate from cases where it is not. But that
there are such instances does nothing to bolster the no-liability principle. For the
difference between action and omission does not map onto the appropriate
borderline of criminal responsibility with any uniformity. We can see this if
we compare William with Claudio. Claudio, in failing to flip the switch, has
surely shown the kind of moral disregard for the life of another that is worthy of
very powerful moral criticism. We should surely feel disgust towards Claudio for
(at least) the indifference to human life that he has shown. And surely that feeling
of moral disgust is more powerful than the indignation that we feel towards
William for exploiting others. William is surely deserving of less moral criticism
than Claudio. We would hope that William should change to become a better
person in the future, but that is nothing compared to what we should wish with
regard to Claudio.
The important moral distinction here, I think, is between what one morally
ought to do and what one is morally obliged to do; what is morally advisable and
what is morally required. The moral disgust that we feel towards Claudio is justi-
fied by the fact that not only ought Claudio to flip the switch, he is morally
obliged to flip the switch. This distinguishes Claudio from Cathy. Cathy ought to
inform the authorities about Williams fraud, it is morally advisable that she do so,
but she is not morally obliged to do so. Claudio cannot claim to be within the
realm of moral acceptability as a person as a consequence of his failure to prevent
Margaret from killing Jorge. No such evaluation can be made about Cathy. It is
this failure to fulfil his obligations that McEwan clearly wishes us to
recognise with regard to Clive, for his failure at least to inform the authorities
about what he has seen. We cannot but agree with Vernon when he says: This is
outrageous. Go to the police, Clive. Its your moral duty. Undoubtedly there
will be disagreement about exactly what one is morally obliged to do and what is
merely morally advisable. Perhaps Clive is morally required not only to inform the
authorities, but also to assist the woman, even though there would be a risk to his
own safety in doing so. Or perhaps we are better seeing that as merely the best
thing to do. But as there are clear cases of moral obligation, and Claudios is one of
them, some omissions liability ought not to be considered controversial on the
grounds of AOD.
It is worth noting that this argument is capable of attacking not just those
who think that the no-liability principle is founded on AOD, but also at least
some of those who think that it is founded on practical concerns. For example,
Glanville Williams attempts to support the traditional position of the criminal
law with five grounds. Firstly, he suggests that societys most urgent task is repres-
sion of wrongdoing rather than bringing the ignorant or lethargic up to scratch.
Secondly, he claims that our moral reaction to wrongful actors is much more
powerful than it is with regard to wrongful omitters. Thirdly, he claims that it is
more difficult to formulate crimes of omission. Fourthly, he argues that it is unfair
for reasons of fair labelling to include omitters together with actors. And fifthly, he
claims that the criminal justice system is already so overburdened with actors that
it cannot cope with dealing with omitters.
See also S Freeman Criminal Liability and the Duty to Aid the Distressed (1994) University of
Pennsylvania Law Review 1455. Amsterdam 119.
Criminal Omissions The Conventional View (1991) 107, LQR 86.
The problem with these arguments is that they insufficiently differentiate

between different kinds of action and omission. Let us return to Claudio. Williams
may be right that it is more important that we prevent the killing of others than it
is that we force Claudio to rescue Jorge. But surely it is not more important that
society prevents illegal parking, or petty shoplifting, or minor criminal damage
than it is that Claudio is required to rescue Jorge. It may well be no more costly to
deal with Claudio than it would fifty cases of illegal parking. In relation to the sec-
ond claim, as I have noted above, surely our blood boils more when confronted
with Claudio than with the shoplifter or the petty arsonist.
This leaves Williams fair labelling claim and his claim about the formulation of
offences. The latter doesnt seem to me especially problematic, no more so than it
has been to formulate many action-based offences. Consider the extreme diffi-
culty that there has been with the formulation of the offence of theft. The former
claim merely militates in favour of distinguishing between action and omission in
terms of offence category. It does not justify the general claim that there is a
problem with criminalising omissions.
7.2 The Argument from Responsibility
There are circumstances in which by omitting to rescue the defendant displays the
kind of moral character which the criminal law is rightly interested in. But
whether the defendant is culpable, I have been arguing in this book, is at issue
only if the defendant is responsible for the action or event under consideration.
Where the defendant lacks responsibility, whether he is culpable is irrelevant. Can
this distinction between culpability and responsibility be relevant in providing a
justification for the no-liability principle? Is the justification to be found in the
realm of responsibility rather than the realm of culpability? It has been argued by
Andrew Simester that it is. He puts it as follows:
The action/omission distinction is important for reasons of responsibility absent a
distinct duty, an omitter is prima facie not responsible for the consequences of her omission
where an actor is. Thus, indirectly, the action/omission divide does affect culpability.
This, Simester suggests, is sufficient to establish the orthodox position. In order
properly to hold the defendant criminally responsible for the consequences of his
A P Simester Why Omissions are Special (1995) 1, Legal Theory 311, 312.
He does present a caveat at 312, suggesting that his position regarding omissions is compatible
with a duty of easy rescue. But that doesnt seem correct. If there is a duty of easy rescue, as I have
argued earlier, that would be sufficient to undermine the orthodox position. The orthodox position
contends not only that there is a proper distinction for the law to draw between action and omission,
but also that the distinction is generally sufficient, bar specific exceptions, to undermine criminal
responsibility altogether. Simester seems to think that a duty of easy rescue is still a specific exception,
but it seems too general for that.
omissions, Simester thinks, the criminal law must establish that the defendant had
a responsibility to act, normally through a distinct duty, but perhaps for other
reasons. Such reasons, for him, must override the prima facie liberty that citizens
have not to intervene. Barring such reasons, he thinks, criminal responsibility
ought not to be imposed. In other words, there is a general principle that one is
at liberty not to act, which must be overridden by reasons to make the defendant
liable in omissions cases.
We distinguish between action and omission, Simester thinks, because
we distinguish between acts which the agent is an author of and acts which he
is not an author of. The idea of authorship, he argues, is central to what is distinc-
tive about the agent. His identity is secured by distinguishing between conse-
quences of which he is the author and consequences of which he is not the author.
And if the criminal law fails to draw this distinction, he suggests, it fails to
recognise the moral salience of authorship, and the fact that it is constitutive of
identity.
Given the theory of responsibility that I constructed in Chapter 1, there is
reason to think that the idea of authorship has an intimate relationship with
responsibility. An agent is responsible for an action, I suggested, if that action
relates to the agent qua agent. The actions which the agent is the author of are
obviously related to the agent qua agent. I argued as much, though not in quite
those terms, in Chapter 1. The actions that one is the author of include at least
ones intentional actions, and perhaps other actions besides.
That is not to say, however, that there are no actions which the agent is not the
author of which he is nevertheless responsible for. Authorship may be a sufficient
condition of responsibility without being a necessary condition of responsibility.
If an agent is only the author of actions that he intentionally brings about, it is
obvious that authorship is not a necessary condition of responsibility. For, as I argued
in Chapter 1, and as is well recognised by the criminal law, an agent can be respons-
ible for an action that he does not bring about intentionally. But the idea of
authorship is perhaps sufficiently flexible that it can accommodate reckless and
negligent actions as well.
There is at least some good reason to suppose that the idea of authorship can
provide an account of why we should distinguish between actions and omissions,
at least in some way. We can see this from the following paradox. To fail to distin-
guish between action and omission is to do as though there is little particular
moral significance in the fact that one is acting. But it is also to recognise the par-
ticular significance to one that one acts. On the one hand, it denies the special
moral significance of action, but on the other hand, it provides one with particu-
larly stringent demands of action: we will treat ourselves as having obligations to
make the world better that will generally override self-interest in favour of the
interests of others. As regulating ones actions is a basic condition of seeing oneself
See particularly 332. Ibid 32930.

as an agent whose actions are subject to moral demands, one must understand the
consequences of ones actions as especially significant. It seems odd, then, to deny
that this feature of ones actions has any role to play in the content of the norms by
which one is governed.
However, it is questionable whether this argument can be used to defend the
orthodox position of the criminal law. Let us suppose, for the moment, that
Simester is correct about the relationship between authorship and consequences.
Suppose that authorship is morally significant. Suppose also that where one omits
one would not be the author of the relevant consequences of ones omissions.
And suppose that distinguishes the omitter from the actor, who is the author of
those consequences. Is that sufficient to justify the orthodox position? I suggest
that it is not.
The reason why is that there is an important distinction to be drawn between
the argument that the defendant cannot be held responsible for the consequences
of his omissions and the argument that he cannot be held responsible for anything
at all. Simesters argument may be sufficient to show that omitters should not be
criminally responsible for the consequences of their omissions. But it does not show
that they ought not to be criminally responsible for omitting in general. Simester
argues that:
a doctrine of general liability for not-doings would result in a system that is largely
insensitive to ideas of individual responsibility and authorship. Authorship is in the one
who hurts me, not in the one who stands aside. Yet, without an act/omissions doctrine like
the one our legal system presently recognises, this truth would be valueless.
Perhaps that might seem true enough if the criminal law were to hold omitters
responsible for the consequences of their omissions just as it holds actors responsible,
although as we shall see, even that is questionable. But a doctrine of general liability
for omissions need not make the defendant criminally liable for the consequences
of his omissions.
To see this let us return to Claudio, Margaret and Jorge. It may be that
Margaret is the author of Jorges death and that Claudio is not. That may entail
that whereas Margaret is responsible for Claudios death, Jorge is not (although I
will question that in a moment). But even if that is the case, Claudio may be
responsible for failing to rescue Jorge. And it may be appropriate to hold him
criminally responsible for that failure.
In Chapter 3 I suggested that the criminal law expresses something not only
about the character of the agent that is manifested in the action, but the nature of
the action as well. The criminal law is properly concerned to express what the
defendant is responsible for, as well as the character that he manifested in bringing
about what he is responsible for. And if Claudio is not responsible for the death, it
The argument is developed in detail in S Scheffler Doing and Allowing (2004) 114, Ethics 215.
Ibid 329.
This is somewhat similar to Simesters example of Jeremy, John and Stephen described at 329.
is not appropriate to hold him criminally liable for an offence which implies that
he is so responsible. If that is the case, Claudio ought not to be convicted of
murder or manslaughter. But he may still be convicted of an offence which does
properly describe what he has done, for example an offence such as failure to assist
a person in peril that is used in France.
Now, it might be argued that as failing to assist is an omission, it also does not
reflect on the agent qua agent, and so is not something for which the defendant
can be held responsible. In order to investigate whether this is the case, it is worth
returning to two social and human practices which, I argued in Chapter 1, are
conceptually connected to responsibility. The first is the practice of holding others
responsible. The second is the reactive attitudes both of the agent herself and of
others. I argued that there may be things that a person is responsible for, but
which he cannot rightly be held responsible for. And I suggested that there may be
actions which the person is regarded as responsible for but which do not generate
reactive attitudes. Nevertheless, I suggested that there is an intimate conceptual
relationship between the concept of responsibility and both holding an individual
responsible and ones reactive attitudes.
It might be argued about Claudio that it is inappropriate to hold him responsible
for failing to rescue Jorge. But there is at least good reason to think that is not the
case. Suppose that Jorges family berate Claudio for failing to rescue Jorge, and ask
him why he did not do it. Are we to suppose that, in doing this, they are behaving
inappropriately? Surely it is appropriate to require Claudio to provide an explana-
tion for his failure to do something which it was his moral duty to do. It is surely
appropriate to treat Claudios inaction not only as a subject of moral assessment,
but one which he can rightly be held to account for. And it would be morally inad-
equate for him to respond: I dont have to act if I dont want to. Its none of your
business.
In fact, Simester agrees that there are cases of omission in which one is subject to
moral assessment, but he draws apart the appropriateness of moral assessment of
the agents (non-) behaviour on the one hand and responsibility on the other. He
considers the trolley problem in which I am in a runaway trolley which is heading
towards Tom. If I flip a switch, Sam will be killed instead. Simester suggests that I
ought not to flip the switch. I ought to omit, thus allowing Tom to be killed, rather
than acting, thus bringing about the death of Sam. Simester suggests that:
Prima facie, I can say to Toms parents: I do not have to justify my not saving Tom, for his
death had nothing to do with me. And this, I think, is the first thing that one can say
to distinguish not saving a stranger from killing him, that in the former case, the death has
no connection to me, whereas in the latter, I have made it a part of my life, an aspect of my
relationship with the world that is distinctive of me and not of anyone else.
Article 63(2) of the French Penal Code, discussed in A Ashworth and E Steiner Criminal
Omissions and Public Duties: The French Experience. Why Omissions Are Special 331.
On this account, I can say that it was none of my business what happened to Tom.
But surely that cannot be right. I am in the trolley and there will be one death that
occurs. And I am the only person that can decide who will die. Now, it may be
right that I allow Tom to die rather than flipping the switch thus killing Sam. But
that is not to say that I do not have at least to explain my decision to Toms parents.
Later, Simester suggests that moral appraisal for my decision is appropriate. But
he is ambivalent about whether the appropriate target of appraisal is whether I had
an obligation to get involved rather than of my decision not to flip the switch. He
writes that:
this is not to deny that I am susceptible to moral assessment in respect of my failure to save
Tom. I could have prevented it, and the claim that I am not involved in Toms death may
not be enough to prevent me from being blamed for its occurrence, on the ground that I
should have got involved and adopted the problem of his fate.
Surely the right way to see this case is that I am involved in the death of Tom but
that I was justified in allowing him to die. I am responsible at least for not saving
him in that I was uniquely placed to save him with minimal effort on my part, and
that is at least something that requires of me some kind of explanation for why I
did not save him. It may not be appropriate for Toms family to blame me for the
death. I was justified in what I did. But that is not to say that they ought not to
hold me responsible for not acting whatsoever. I cannot claim that I was not
involved.
This is a consequence of the fact that I have failed in my duty to save a person
whose life is threatened. It is true that I am justified in failing in that duty: I have
another more powerful duty, not to kill Sam. But to deny my responsibility for
Toms death is to deny that I have breached a duty with regard to Tom, and that is
mistaken. This also helps us to understand why our reactive attitudes toward
Claudio are so powerful. We rightly despise Claudio for failing to save Jorge. We
react because he is responsible for failing to save Jorge. Finally, consider Vernons
hyperbolic accusation against Clive when he says: You can bluster all you want.
Youre losing your grip. If you wont go to the police, Ill phone them myself and
tell them what you saw. Accessory to an attempted rape . . . We may think
Vernon inaccurate in his legal diagnosis, but that Clive must take at least responsi-
bility for his failure to do anything at all is clear from Vernons reaction.
Now, obviously one is not always responsible for omitting where in acting one
could have prevented some further harm. It is true that there are some occasions
where it is permissible not to act even though acting would have been in the inter-
ests of another who was threatened with harm. Whether one has a moral duty to
act is sensitive to a number of factors. Most obviously, one tends not to have a duty
to suffer great losses oneself for the benefit of others. One can live ones life
Why Omissions Are Special 332.

See also P Smith Omission and Responsibility in Legal Theory. Amsterdam 119.
without the constant intrusion of duty. For example, it may be that one has a duty
to give some money to aid the poor. But there is some point at which that duty
ends. It is commonly thought to be particularly true when three conditions are
fulfilled. The first is that the agent is one of very many people who are in an equal
position to help the victim. The second is that helping the victim would require
effort on the part of the agent. The third is that the victim is distant from the
agent, both in terms of physical distance and in terms of community relation-
ship. Hence, in holding agents responsible for their failure to assist others, we
need not be as stringent as Peter Singer, who recommends that we have a duty to
give up almost everything that we have for the sake of ensuring that others do not
suffer. It may be true that giving up everything in this way is morally best, but
that is quite different from its being morally required.
Perhaps Simester thinks that AOD does the relevant work in justifying the
position of the law partly because he focuses on the problems generated when the
first of these criteria is missing. He worries that the failure to recognise AOD by
excluding our responsibility for criminal omissions would weaken the relation-
ship between the consequence and its author by indiscriminately sharing respons-
ibility for the authorship of each consequence. This, he continues, would
dilute our sense of the individuality of people. For example, suppose that Joss is
dying on the side of the motorway. If all of the cars have a duty to stop and rescue
her, are they all responsible for her death? Or even more powerfully, are we all
responsible for the deaths of those who are dying in a famine because we would be
capable of saving most of those people by giving up our own resources? Here
Simester may be right that the failure to recognise the special responsibilities of
some, that distinguishes them from the general mass, would dilute our sense of
individuality.
But such problems of dilution do not arise where the defendant is in a priv-
ileged position to rescue the victim, so neither should the objection. Further-
more, it is worth recognising that when we hold Claudio responsible for failing
to assist Jorge, that is quite distinct from the way in which Margaret is held
responsible for Jorges death. It is not as though we are treating Margaret and
Claudio as identical. They are responsible for their conduct and lack of conduct
under a particular description, a description that is appropriate to describe them
and no-one else.
It is contentious whether this is really a significant factor. See D Lewis Illusory Innocence? in
Papers in Ethics and Social Philosophy (Cambridge: CUP, 2000), F M Kamm Does Distance Matter
Morally to the Duty to Rescue? (2000) 19, Law and Philosophy 655, V Igneski Distance, Determinacy
and the Duty to Aid: A Reply to Kamm (2001) 20, Law and Philosophy 605 and F M Kamm The
New Problem of Distance in Morality in D K Chatterjee The Ethics of Assistance: Morality and the
Distant Needy (Cambridge: CUP, 2004).
Famine, Affluence and Morality (1972) 1, Philosophy & Public Affairs 229.
Why Omissions Are Special 330.
It may be objected to this that the individual will often have arrived in that
situation through sheer chance. It might be argued that one should only be
responsible for ones failure to act if one has taken on certain responsibilities. This
is part of Clives attempt to justify his actions to himself when he says to himself,
given the width of the ridge and the numerous paths that crossed it, how easily he
could have missed them. It was as if he wasnt there. He wasnt there. But the
idea that the positive obligations that we have are generated only through choice is
misleading. It is generally the case that we cannot make responsibility insensitive
to questions of luck. This is also the case with regard to who we have special
relationships with. It is implausible to think that the kinds of relationships
that will generate moral obligations will all be a matter of choice. That we do not
have control over all of the relationships that we have with others, relationships
that tend to generate duties, cannot be a powerful objection to the existence of
those obligations. That D comes across V, who needs to be rescued, by chance is
no objection to the derivation of the obligation on D to save V from Vs need.
Finally, let us return to the question of what the person who fails to assist ought
to be responsible for. Should Claudio be held responsible merely for failing to
assist, or should the consequences of his inaction be relevant in assessing his
responsibility? I think that the consequences of the failure are at least relevant in
determining his responsibility. Suppose, for example, that Margaret attempts to
electrocute Jorge. Claudio stands by and does nothing. However, there is a sudden
power cut and Jorge is saved. What Claudio is responsible for is surely affected by
the fact that Jorge has survived. Obviously, Jorge was a person in need, who
Claudio ought to have saved, but the absence of the consequence expected by
Claudio surely affects what we think he is responsible for. If Jorge is electrocuted,
we hold Claudio partly responsible for Jorges death. Admittedly, his responsibil-
ity is not as direct as that of Margaret. We might say that he is secondarily rather
than primarily responsible for the death. But that is not to say that he has no
responsibility for the death at all. Surely when Jorges family berate him for his failure
to save Jorge, they rightly hold him partly responsible for Jorges death.
7.3 The Argument from Liberty
That an individual is responsible for an action does not, of course, entail that we
are right to hold that individual responsible for that act. As I noted in Chapter 1,
Amsterdam 89.
See the discussion in Chapter 3, and B Williams Moral Luck in Moral Luck (Cambridge: CUP,
1981).
See also S Scheffler Relationships and Responsibilities in Boundaries and Allegiances: Problems
of Justice and Responsibility in Liberal Thought (Oxford: OUP, 2001).
This is consistent with the position developed in S Scheffler Doing and Allowing. Scheffler
contends that the distinction between primary and secondary responsibility is morally significant,
but that there are clear instances of secondary responsibility.
there are circumstances where D is responsible for ving, but where it is not
appropriate to hold D to account for ving. In response to an attempt to hold D
responsible for ving, it may be appropriate for D to say that it is none of our
business. But even if it is appropriate to hold D responsible for ving in some forum
it may not be appropriate to hold D responsible for ving in a criminal court.
One central set of cases where this will be so concerns actions which do not display
the kind of vice which the imposition of criminal responsibility expresses. For
example, D may be responsible for his clumsy and stupid action, and that action
may cause the kind of harm for which a public response will sometimes be
relevant. But the criminal law is not the appropriate forum to call D to account for
his conduct.
Might that also be the case where D has omitted? Might it be the case that
although D has omitted to perform an act, and is culpable for doing so, that
omission is not the kind of thing which the criminal law ought to be interested in?
As I have noted above, some practical arguments why this might be so have been
presented by Glanville Williams. However, I also suggested that those practical
arguments are unconvincing when we compare omitting to prevent some great
harm with acting to bring about some much lesser harm. If there are limited
resources in the criminal justice system, there may be a good case for diverting
those resources to prosecuting omissions which result in great harm rather than
actions which result in lesser harm. But even if we ignore the consequences and
focus rather on what the defendant is responsible for, the argument still holds.
The arguments presented so far show that there is good prima facie reason to think
that we should hold individuals responsible for failing to prevent serious harm
even if they are not responsible for that harm. And there is good prima facie reason
to think that we ought to do this even if it is at the expense of failing to prosecute
the causing of some minor harms.
Against this, it might be argued that although individuals are responsible for
their omissions, and omissions commonly show the kind of fault that the criminal
justice system ought to be interested in, there is a further reason of principle which
suggests that such individuals ought not to be held responsible for their omissions
in the criminal courts. This is the principle that we ought to protect the liberty of
citizens.
That we should restrict the ambit of criminal responsibility to protect liberty is
at the heart of much theoretical writing about the criminal law. Particularly,
much work has been done concerning the ambit of what is sometimes called the
harm principle. It is often claimed that imposing criminal responsibility on an
agent for his omissions impacts on his liberty to a much greater extent than the
See also Chapters 3 and 9.

See particularly J Feinbergs four volume study The Moral Limits of the Criminal Law. The four
volumes are Harm to Others (Oxford: OUP, 1984), Offence to Others (Oxford: OUP, 1985), Harm to
Self (Oxford: OUP, 1985) and Harmless Wrongdoing (Oxford: OUP, 1988).
imposition of criminal responsibility on an agent for his actions. Although D2

may be responsible for his failure to assist V, it might be claimed, we ought not to
criminalise the mere failure to assist V. For such criminalisation would impact on
the liberty of D2 to much too great an extent.
An argument of this kind for the restriction on criminal liability for omissions
is provided by Michael Moore. The argument goes as follows. When D is prohibited
from ving, he may do a great many other things other than v. So his liberty to v2,
v3, v4 and v5 is preserved. The restriction on his liberty to v retains his liberty to
do anything other than that which is prohibited. In contrast, the obligation on D
to v prohibits Ds liberty to do anything other than v. Consequently, Moore
argues, prohibiting Ds omission to v restricts liberty to a greater extent than
prohibiting ving. Prohibiting ving leaves D with almost the whole world to play
with whereas prohibiting the failure to v leaves D with almost none.
Moore supposes, in this argument, that the liberty to perform an action is
valuable even if there is no value in the performance of the action. The liberty to v,
for Moore, is valuable even if the agent does not wish to v, and even if he is not
aware that he can v. And it is valuable if ving is seriously morally wrong. If that
is true, the less liberty that a criminal offence interferes with, the better. If Moore
is right both that omissions tend to interfere with liberty to a greater extent than
actions, and that it is better to have more liberty than less regardless of the content
of ones liberty, there would also be good reason not to prohibit omissions that did
not apply to actions. I think that Moore is wrong about both things. The value of
the liberty to v depends on the value of ving. But even if this is not the case, there
is no reason to think that prohibiting omissions interferes with liberty to a greater
degree than prohibiting actions. I will defend the latter proposition first.
7.3.1 Do Omissions Restrict Liberty to a Greater Degree

than Actions?
In order to evaluate Moores argument concerning the impact of criminal omis-
sions on liberty, let us suppose for the moment that he is right that it is appropriate
to evaluate in quantitative terms rather than qualitative terms the extent to
which ones liberty is interfered with by a prohibition. The more ones liberty is
restricted, we will suppose for the moment, the worse off one is. Even conceding
this, there is a central difficulty with Moores argument. It fails to evaluate the
impact on liberty of prohibitions over time. Once we build a temporal component
into our evaluation of the quantity of ones liberty, the argument is significantly
deflated. And there is good reason to build in such a temporal component. After
all, in evaluating how much liberty someone has lost, how long they have lost their
M Moore Placing Blame (Oxford: OUP, 1997) 278. Placing Blame 281.
Placing Blame 282.
liberty for will obviously be significant. In losing ones liberty to v for ten minutes
one has lost less liberty than if one loses ones liberty to v for an hour.
This is significant with regard to omissions liability. For in prohibiting omissions,
it tends to be the case that one loses ones liberty to perform other actions only at
the moment when one is required to act to rescue another. An omissions statute
which recommended that one must always rescue any other who is in need
would obviously impact heavily on ones liberty if there were always others in
need. But prohibitions on omissions tend not to be like that. They tend not to be
very demanding of ones time. If I must rescue another when I see them drown-
ing and I am best placed to help, the restriction on my liberty is quite limited if
we take into consideration the limited time that it will take to rescue another.
On the other hand, the prohibition against killing is a prohibition which lasts
forever.
Suppose that it is valuable to D that he is at liberty to kill. The prohibition
against killing thus restricts his liberty to kill for the whole of his life. In evaluating
the quantity of liberty that D has lost, we must multiply the scope of the liberty
that is interfered with by the time for which he loses it. Although there are lots of
different ways to kill, let us suppose that the scope of the prohibition is relatively
small. That is not to say that the restriction on liberty is relatively small, however,
as the time that the prohibition applies for is large: the whole of Ds life and
beyond (D cant even put things in place such that V will die after D). Compare the
prohibition against omitting to rescue drowning children. Suppose that we
restrict the prohibition to cases in which the defendant was well placed to save the
drowning child. In that case, the scope of the defendants liberty that is interfered
with by the prohibition is large (when V is drowning, D can do nothing but save V),
but the time which that interference operates is very small: it operates only when
D is well placed to save a drowning child. This will probably take, on average, less
than an hour of any persons life. Hence, it is not clear that there is any more
reason grounded in liberty against prohibiting D from omitting to save drowning
children than there is to prohibit D from killing.
Furthermore, it is not clear that protecting liberty is a sufficiently strong reason
to restrict the ambit of the criminal law in comparable prohibitions on action.
Consider the following scenario. Robert, Henry and Paul are in a gym together.
There is only one exit. Robert is on the rings, and falls off in front of the door.
Henry is worried that it will be very dangerous to move Robert. Paul has finished
at the gym and wishes to leave, but without moving Robert there will be no way
in which he can leave. Henry calls for help on his mobile phone. A doctor says
that he will ring back in an hour with advice about how best to move Robert
away from the door with the minimum of risk so that emergency services can
enter the room.
If Paul moves Robert he will obviously commit a criminal offence. But Pauls
liberty is severely restricted by the fact that he is prohibited from moving Robert.
Just as with prohibitions of omissions, the scope of the restriction on Pauls
liberty is very great, although the time which that interference operates is
small. But surely there is good reason for Paul to be prohibited from moving
Robert. If Paul does move Robert, he should at least have to justify doing so by
some compelling reason. For example, if Paul moves Robert because otherwise he
will suffer serious physical injury through failing to take some medication, then
he may have a defence to the assault that he has committed. But failing that, a
mere restriction on his liberty is not sufficient to justify moving Robert.
Perhaps it might be thought that it is the combination of the restriction on
liberty and the moral difference between action and omission that provides the
explanation of the different way in which the law treats actions and omissions. It
may be argued that Paul, in moving Robert, would be more seriously culpable
than Henry would have been, for example, if he had failed to call for help. But as I
have suggested already, failing to call for help is at least sufficiently culpable to put
Henry in the same moral ball park as many of those who are rightly held
criminally responsible for their actions. Surely Henry, in failing to call for help,
would have acted in a way that is as seriously culpable as, say, those who commit
minor property offences. The moral difference between Pauls action and Henrys
omission in failing to call for help may be significant, but it is not sufficiently
significant to justify making one criminally responsible for his action where the
other is not criminally responsible for his omission. If the question of liberty is not
sufficiently powerful to justify the distinction between action and omission in this
case, the moral distinction between action and omission is not going to do the
appropriate work either.
7.3.2 When is it Better for Me to Increase My Liberty?

Even if these arguments do not hold, there is good reason to think that Moores
approach to liberty is seriously misguided any way. Moore thinks that there is a
reason to protect my liberty to v even if there is nothing valuable in my ving. It is
always better for D, Moore supposes, if he has more liberty. But it is not generally
true that it is better to have more liberty than less. To see this, let us see some ways
in which freedom might be valuable.
Freedom may be valuable intrinsically or instrumentally. The intrinsic value of
freedom is captured by the familiar idea that it is better to be a person with options
than a person without options. This may be true even if one has no wish to pursue
some of those options. To put it more formally: suppose that A has an option to v,
that A wants to v more than he wants to w, and that A cannot v and w. In such
circumstances the option to w may still be valuable. For the option to w may make
ving more valuable. That ving is a choice amongst options may make ving more
valuable to A. For example, one might justifiably be proud of becoming a social
worker all the more if one had the option of becoming a stock-broker and turned
it down. The value of freedom to w, then, does not always depend on the fact that
one ws and wing is valuable.
An argument of this kind about the intrinsic value of freedom is used by Moore
to justify the laws position regarding criminal omissions in a response to
Sam Freeman. He writes:
Why is there any value in a natural liberty that includes a liberty to do wrong? Why should
we be free of legal coercion when what we are coerced to do is our own perfect duty? By
way of an answer, consider Freemans own example, Kants imperfect, ethical duty of
beneficence. Suppose that those of us who could easily afford it were under a duty to give
a portion of our income to the poor. As Freeman notes, it was Kants concern to make it
a matter of an individuals discretion to choose when to fulfil this duty and whom one
should choose to benefit as a result. After all, to be coerced into giving is hardly to give
at all, and in any case a coerced giving is not nearly so virtuous as a voluntary giving. Yet is
this concern not perfectly general: whenever the law coerces, it cuts into the possibility of
freely chosen good?
In short, it is claimed that, unlike act liability, liability for omissions forces us to
do what we should otherwise do voluntarily. This, Moore thinks, might plausibly
help us to draw a distinction between act and omission that justifies the no-liability
principle.
In order to investigate this answer that Moore provides, we need to know
something further about the conditions under which freedom may be intrinsically
valuable. And to appreciate the answer to that question, we are best to deal with
arguments against the intrinsic value of freedom. The central objection is
provided by Gerald Dworkin. He argues as follows:
Suppose someone ranks three goods A, B, and C in that order. Then, making certain
plausible assumptions about the infinite divisibility of utility, there will be A, B, and C
such that the person prefers a choice between B and C to receiving A. This will occur
whenever the utility of having a choice between B and C plus the utility of B is greater
than the utility of A. This seems to me irrational. Leaving aside some special feature about
this particular choice, for example, that somebody promised me $1000 if I made the
choice between B and C, why should I prefer to receive my second-ranked alternative to
my first?
I think that this argument is mistaken. In order to see why, let us investigate what
it is that makes the argument seem intuitively correct.
The intuition arises, I think, because the argument appears to present us with a
choice whether to have a choice or not to have it. Our intuitions are coloured by
the fact that in preferring A to the choice between B and C we are choosing A
directly over choosing the choice between B and C and then choosing B. And, of
course, it would be irrational to go through the process of eliminating A and then
S Freeman Criminal Liability and the Duty to Aid the Distressed (1994) 142, University of
Pennsylvania Law Review 1455, 1488.
Placing Blame 283.
Is More Choice Better than Less? in The Theory and Practice of Autonomy (Cambridge: CUP,
1988) 80.
choosing between B and C where A is preferred to either B or C. But that does not
show that choice is not valuable in the circumstances where we cannot choose
whether or not we have a choice. This assumes that something is valuable to an
agent if and only if it would be rational to choose it. However, there are plenty of
things the value of which is derived from the absence of choice, the most familiar
example being windfalls.
If the argument is constructed from the perspective of a second person, on the
other hand, a similar decision is not obviously irrational. Suppose that Avi knows
that Peter rationally ranks goods A, B and C in that order. If Avi has the choice to
provide Peter with A or the choice between B and C, and Avi wishes to benefit
Peter to the maximum, is it irrational for Avi to provide Peter with the choice of B
and C rather than providing him with A? I think that it is not. In part it depends
upon the degree of choice that Peter has in his life. If Peter is a person who
generally has plenty of choices in other aspects of his life, it may be rational for Avi
to provide Peter with A. But if Peter is a person who very rarely gets to choose, it
may be rational to give him the choice between B and C. This encourages him to
see himself as a choosing agent, it allows him to refine his preferences and it
encourages him to foster a sense of responsibility for his choices, all of which are
valuable.
Furthermore, it may be that although A when chosen may be more valuable
than B when chosen, it is not clear that A coerced is always more valuable than
B when chosen. Once again, we are distracted in Dworkins account by the fact
that the agent appears to be choosing not to have a choice. The character of
A coerced is distorted by presenting the agent with the choice whether to have a
choice. In that case, A is not coerced. It is chosen by choosing not to have a choice.
It is worth noting two limitations on the intrinsic value of freedom that we can
derive from this account. Firstly, the freedom to do something which Peter does
not wish to do is not very valuable where Peter already has plenty of choices: there
is a law of diminishing returns when it comes to the intrinsic value of choice.
Hence, this argument alone cannot be used to support the orthodox position of
the criminal law. It can be used as an argument that omissions ought not to be
criminalised to the degree that a significant portion of our time is spent with no
choices. But that is compatible with a degree of criminalisation of omissions well
beyond the orthodox position. Secondly, there is no support for the position that
the coerced actions always lack the full value of comparable voluntary choices.
The argument that freedom is intrinsically valuable in some circumstances is
compatible with the claim that it is intrinsically disvaluable in others. Below I
shall argue that there are instances in which an expanded liberty is disvaluable.
Thirdly, the argument provides no support for the claim that the existence of
entirely valueless choices is intrinsically valuable. If there is only one thing that can
be done with any degree of legitimacy, ones freedom has hardly expanded at all,
let alone in a way that is valuable to one, by the existence of legally recognised
options to do otherwise. Let us develop this final claim a little further.
Suppose that D can either act to save V, or saw off his own leg. The existence of
the alternative option of sawing off his own leg can hardly be seen as valuable.
Although D has a liberty to saw off his own leg, that cannot be said to have
intrinsic value. It is hardly as though Ds sense of himself as a choosing agent is
enhanced by the option to saw off his own leg. Now, it might be thought that cases
of omissions liability are not like this. In the absence of liability for omissions,
D can either save V or do something else that is valuable to him. Clive, for
example, can compose his symphony rather than rescuing the woman in need.
Hence, there is a real intrinsic value in the choice that is given to D. But where it is
my duty to save V, where nothing else would be a moral thing to do, there is no
such legitimate choice.
For example, suppose that Claudio is a morally worthy person. Finding himself
with the option to save Jorge, it is hardly as though his freedom is enhanced in a
valuable way by providing him with the option to pick his nose or fiddle with his
keys instead. Of course, if it would take Claudio much longer to save Jorge, it
might be thought that there are other things that he might do which are more
valuable than saving Jorge. But even if this is true, it shows only that there ought
to be no criminal liability for omissions where the impact of such liability on
liberty would tend to be high. A general duty to rescue where rescue would not be
very difficult, and a general duty to call the authorities, would hardly fall within
that category. After all, what could be of higher value than the composition of a
great work of art? And yet we are rightly invited to think that Clive has behaved in
an absurdly selfish and callous way in attempting to preserve his inspiration with
regard to his piece of music by failing to assist the woman on his hike.
If Claudio thinks of himself as having a choice whether to save Jorge, he has
already made a serious moral error. He has failed to recognise that saving Claudio
is not only something that one ought to do, but something that one ought to do
without thinking of the alternatives. In that case, it is difficult to see how Claudios
sense of himself as a choosing agent can be enhanced by providing him with
options to do things that he ought not even to be thinking about. For that would
provide him with a sense of being a choosing agent only in circumstances where
he ought not to choose at all. If thinking of himself as having a choice in such
circumstances is a serious moral error for Claudio, providing him with such a
choice cannot be intrinsically valuable. If valueless choices enhance the value of
valuable choices, we may as well include the choice to breach the law as enhancing
the value of the choice to comply. But such a choice could exist only through the
creation of an offence of omission!
Furthermore, if there really is something else that is permissible to do in such
circumstances, this can be accommodated in the realm of justification defences.
Such defences are provided in part to protect the liberty to breach the criminal
law where it is valuable to do so. In providing such a defence to the defendant
who omits, the criminal law recognises that the defendant is responsible for his
omission. It is something that he must account for. However, it would place the
defendant under an obligation to justify himself. I will consider this in a little more
detail in the conclusions.
Finally, why should Moores argument not apply to act liability just as it applies
to omissions liability? Surely it is better voluntarily not to kill than not to kill
because one is coerced to do so by a legal prohibition. Here it might be argued that
the prohibition against killing does not entail that one is coerced into not killing.
Those that conform to the prohibition normally do so simply because killing does
not occur to them. But why should this not also be the case with regard to the
prohibition on criminal omissions? That one has a legal obligation, codified in
criminal law, to do ones duty does not entail that one will do ones duty for that
reason. It may encourage the tendency for one to do ones duty for that reason,
but in acting in a way which in fact complies with ones legal obligations one may
be motivated simply by altruism rather than by the existence of the prohibition.
Furthermore, prohibition on action may encourage negative tendencies as well.
The existence of criminal prohibitions may encourage individuals to think that
the criminal law provides all of the moral guidance that they need. And that may
encourage them to think that it is all right to do what is in fact morally wrong but
is not prohibited. The existence of prohibitions, in general, creates the tendency
to diminish ethical reflection in favour of reflection on ones legal rights. There is
nothing special about omissions liability in that regard.
It is worth noting that the intrinsic value of freedom does show that the proper
criminalisation of omissions depends on identifying circumstances where there
will usually be only one thing that can legitimately be done. As I suggested earlier,
where the defendant is presented with a victim in distress and saving that victim
would not involve significant harm to the defendant, there is normally only one
morally acceptable option. The defendant has a moral duty to save the victim.
However, where the defendant would suffer a serious risk of harm to herself, there
may be more than one thing that one could do that is morally permissible. Where
the defendant does have other acceptable choices, but where saving the victim
would be the best thing to do, the intrinsic value of freedom can provide a reason
not to criminalise omissions. This is part of the reason why the criminal law ought
to ensure only that the defendant does not behave unacceptably, not that the
defendant does what is best. Hence, although Moore is right that freedom is
sometimes intrinsically valuable, that argument cannot be used to support the
orthodox position.
Beyond being valuable intrinsically, freedom to v might derive from the value
of ving, either to the agent who vs or to others. It should be noted from the outset
that claims about the intrinsic value of freedom to v are sometimes inseparable
from claims about the value derived from ving. The reason is that the value of ving
See P Pettit Rational Choice Regulation: Two Strategies in Rules, Reasons, and Norms (Oxford:
OUP, 2002) for an argument of this kind.
See the comparable claim about the role of virtue in the criminal law in Chapter 2.
is often enhanced if one vs freely. And in some cases one either vs freely or one does
not v at all. For example, one cannot form friendships other than freely. That one
is free to form the friendships that one wishes is valuable. Its value derives from the
value of forming friendships. But it is only against the context of social interaction
in which one chooses ones friends that friendship can be understood at all.
Nevertheless, the value of freedom to v in such a case derives primarily from the
value of the friendships formed rather than the fact that one had the choice of
which friendships to form. Furthermore, it may be that there are actions which are
valuable whether or not performed in circumstances of choice. It is valuable to me
to receive windfalls even though they are not received freely.
It is sometimes claimed that it is always better to expand ones freedom to v;
that it is always better for A to be free to v than unfree to v even if A does not want
to v. The reason is that A can always not exercise his freedom to v when he is free to v.
In effect, then, in being free to v, A has something for nothing. If ving is valuable
to A he may v and hence enjoy the value of ving. But if ving is not valuable to A he
can always choose not to v and hence he has lost nothing. Where Claudio is
reasonably moral, we might say that this is the case. In having the freedom not to
save Jorge, Claudio has lost nothing, he can only have gained.
However, there are cases in which the freedom to v has disvalue. That might
be the case whether or not A wants to v. The most obvious and straightforward
cases where the disvalue of freedom to v derives from the disvalue of ving
involve lack of knowledge. Suppose that I want to cross the road at a certain
corner. Unbeknown to me, that is a particularly dangerous corner of the road. In
that case, I am better off not being free to cross the road at that point. Now, it
might be objected that in that case, I am better off being informed about the
dangers and being free rather than not being free. Of course, there may be greater
costs in distributing knowledge than there are in restricting freedom. But even if
that is not the case, there might be reason to prefer to have ones freedom restricted
rather than ones knowledge increased. If freedom is restricted to ensure that
road crossing is safe, I dont have to think so much about my safety when crossing
the road.
Furthermore, restriction on ones freedom may be important where the
defendant is likely to be weak willed. It is sometimes the case that if I am free to v
I will fulfil my desire to v even though I know that ving is against my interests.
Where I know that I have a tendency to be weak willed, I may recognise that I am
better off being unfree to v. For example, in my more rational moments I know
that it is silly to take risks with my life for the sake of crossing the road at the dan-
gerous point simply to get home faster. However, I know that I will sometimes
choose to take the risk if I am free to do so. In that case, I would rather not be free
to cross the road in those circumstances. Hence, it is sometimes rational for an
agent to prefer paternalistic control by another. Similarly, in the case of omissions,
it might be valuable for me not to have the option of not calling the authorities.
For if I have such an option, I may succumb to my own tendency to put out of my
mind the suffering of others and get on with my own life. But that may be against
my long-term interests: I may suffer long-term guilt as a result.
Slightly less straightforward are cases where the disvalue of freedom to v is
intrinsic. Perhaps the most obvious cases of this kind arise from the fact that
having to choose may be an unattractive activity in itself. Increasing choice also
potentially increases the stress of making choices, through fear that one will
choose wrongly. Furthermore, the existence of choices may change ones state of
mind for the worse. The vast range of clothes available may lead to an increased
focus on clothes, to the detriment of the pursuit of more substantial pleasures than
dressing well.
More importantly, just as the reduction of freedom may lead to an unwelcome
reduction in ones sphere of responsibility, so an increase in freedom may lead to
an unwelcome increase in ones sphere of responsibility. Gerald Dworkin gives the
example of the increased responsibility on parents to decide whether or not to
terminate the pregnancy where the foetus has a genetic defect, a choice that might
be unwelcome. Or consider the potential increase in unwanted responsibility on
doctors if they were given the freedom to assist suicide where they wished to do
so. Having to take responsibility is often valuable to agents, but sometimes it is
disvaluable. Having the choice of whether to rescue another may be to my moral
benefit. It may encourage me to reflect morally. But it may be bad for me psycho-
logically. It may cause me severe stress to have to choose what to do where I would
rather rely on the law to make clear my social obligations. Whilst freedom is
sometimes intrinsically valuable, it is sometimes intrinsically disvaluable as well.
The intrinsic worth of freedom cuts both ways in the argument about omissions
liability.
A related consideration results from the relationship with others that is consti-
tuted by freedom to v. Freedom to have fundamental control over another human
being, for example, is tantamount to making that other a slave. That is so even if I
dont actually exercise that power. That another has such power over one may be
an important way in which one is wronged, and it is worth struggling to maintain
ones freedom from such power. This is so even if the power is not in fact exercised
because the other is benevolent or lazy. The other side of that coin is that it
may be distasteful to be in such a position of power. For the just and good, it is
unattractive to be a benevolent master: one would rather not be a master at all.
The virtuous do not want intentionally to kill because intentional killing wrongs
another. Similarly the virtuous do not want the freedom intentionally to kill
because having the freedom intentionally to kill also wrongs others.
In Claudios case, it may not be considered valuable to Claudio that he has the
freedom to let Jorge die. For the freedom to let Jorge die, it might be thought, is
Is More Choice Better than Less? in The Theory and Practice of Autonomy (Cambridge: CUP,
1988) 678.
See P Pettit Republicanism: A Theory of Freedom and Government (Oxford: OUP, 1997) ch. 2.
inconsistent with living in the kind of political community that would be valuable
to Claudio. It would suggest that there is no fundamental bond between Claudio
and Jorge that is developed through the state. Living in a society where our state
institutions do little to reinforce the bonds of community that require us to act for
the benefit of others where they are in need may be disvaluable to Claudio even if
he is inclined to act for that benefit of others anyway. Political institutions in part
constitute our relations with others. Having obligations to others that are properly
identified and reinforced by the state may itself be considered valuable. The restric-
tion on freedom not to benefit those in serious need is an expression of that polit-
ical bond between members of a community. The alternative is for us to think of
ourselves in a community where the needy are to be treated as burdens on those
who are not in need, where our relationships with others are governed only by what
we get in return, a position summed up by Clive in his distasteful sentiment that
this was his business, and it wasnt easy, and he wasnt asking for anyones help.
7.4 Conclusions
Traditionally, there is a general principle that is recognised in law that there is no

liability for criminal omissions. Such a principle, it is commonly argued, needs to
be defeated to justify the limited exceptions where liability is imposed on the
defendant for failing to act. Three grounds which have been used to defend the
no-liability principle have been considered in this chapter. I have claimed that
none of these grounds will provide a defence of that principle. Where one has a
duty to act, where there is no other morally legitimate thing that one could have
done, failing to act is sufficiently culpable to warrant the imposition of criminal
responsibility. Furthermore, there is something that one is responsible for. This
will at least be the failure to act in itself, and it may involve the consequences of
ones inaction as well. Finally, it cannot be said that reasons of liberty are suffi-
ciently clear or powerful to justify the orthodox position such that the criminal
law ought not to hold agents responsible for their omissions generally where they
are morally responsible for those omissions.
I do not claim that the arguments from culpability, responsibility and liberty
will have no impact on the role that criminal law might play with regard to failure
to act. Clearly they will have such an impact. Firstly, they may impact on the
circumstances in which we might hold individuals criminally responsible for their
failure to act. I have suggested that all three arguments indicate that we must
distinguish between cases where acting to rescue another is merely the best thing
This is a stronger version of a claim defended in A Ashworth The Scope of Criminal Liability
for Omissions. Ashworth argues, about whether it is fair for society to impose obligations of positive
duty on its citizens, concluding that, to some degree at least, it is. I argue, moreover, that it is disvalu-
able to their relationships with each other, and with the state, that this is not done.
Amsterdam 89.
to do and cases where it is our duty to do so. It is only if the latter is the case that
criminalisation for a failure would be appropriate.
This suggests that the extent to which we see an expanded role for the criminal
law regarding omissions ought to depend upon where we ought to draw the line
between what is morally required, ones moral obligations, and what one merely
ought to do, what would be for the best. I have not developed a systematic answer as
to where this line is to be drawn. I think that there are at least enough clear cases to
justify an expanded role for the criminal law to play with regard to criminal
omissions. For example, it is clearly Clives moral duty at least to call the authori-
ties. And it is clearly Claudios moral duty to save Jorge. It is simply not morally
permissible to fail to act in their circumstances.
Secondly, the arguments presented may have an impact upon what kind of
offence the defendant ought to be convicted of where he fails to act in the appropri-
ate way. I suggested that AOD could not justify the orthodox position. However, it
may be able to justify distinguishing between greater and lesser offences. If Claudio
is responsible for the death of Jorge, and I have suggested that he might be, that is
not to say that his culpability is equivalent to Margarets culpability. That is a conse-
quence of AOD. Consequently, it may be appropriate to convict Margaret for mur-
der where Claudio is to be convicted only of manslaughter. The distinction between
Margaret and Claudio might be justified even if Claudio fulfils the mens rea require-
ments for the offence of murder. As Claudio has not performed an intentional
killing, he might be distinguished from Margaret on that score. But even if we think
that knowledge that death was a virtually certain consequence of ones action is suffi-
cient for criminal responsibility for murder, as it is in England and Wales, we need
not conclude that foresight that ones criminal omission will result in death is suffi-
cient to warrant a conviction for murder. Furthermore, there are some cases where
the consequences of ones omissions are not sufficiently severe to warrant criminal
responsibility at all. Hence, it should certainly not be the case that all criminal
offences should be capable of being completed by omission.
To consider further the role that responsibility for consequences might play,
I suggested, but did not conclusively show, that where there is an omission the
defendant will sometimes be responsible for the consequences of that omission, as
well as for the omission itself. If that is the case, there seems little reason to
think that the defendant should not be convicted of an extant offence such as
manslaughter rather than an offence such as failing to rescue. However, that
leaves open the possibility that there are cases where the defendant is responsible
for omitting, but is not responsible for the consequences of omitting. For exam-
ple, the failure to pay taxes is properly a criminal offence. But the consequences of
such a failure are not significant in determining the offenders criminal respons-
ibility. Careful thought needs to be given to exactly what the agent is responsible
See also W Wilson Murder and the Structure of Homicide in A Ashworth and B Mitchell
Rethinking English Homicide Law (Oxford: OUP, 2000) 4951.
for when he omits: is it merely the omission itself, or is it the consequences of that
omission? That will determine the proper nature of offences of omission.
Thirdly, I argued that where omissions liability is warranted, there will likely be
an important role for justification defences to play. That there is a general duty to
rescue should be qualified in appropriate cases where the defendant has an alterna-
tive duty. AOD can secure a broader role for justifications to play with regard to
omissions than with regard to actions. If omitting is not morally as bad as acting in
equivalent circumstances, it will also be easier to justify. Justification defences also
play an important role to secure the liberty of defendants to do what is morally
permissible, even when what is morally permissible breaches a duty to act.
It is worth pausing in the light of this to consider the well-known case of
Airedale NHS Trust v Bland. Bland was one of the victims of the disaster at the
Hillsborough football ground. He was diagnosed as suffering from a persistent
vegetative state. It was the opinion of medical experts that Bland had no awareness
whatsoever and that there was no hope of improvement in his condition. The
consultant who was responsible for his care sought a declaration from the court,
supported by his parents, to discontinue all life-sustaining treatment, a declaration
which was granted. The case was decided in part on the grounds that removing
artificial feeding from the patient constituted an omission. Action cannot be taken
to terminate life under the law of England and Wales, it was held, but removal of
feeding was not a positive action.
The grounds for the decision seem problematic, however. The idea that
removal of feeding is an omission seems to suggest that removal of feeding could
be done by anyone. For example, what if someone removed the feeding tube from
Bland in order that he could inherit his fortune more quickly? Lord Goff consid-
ered this possibility, but rejected it on the grounds that in that case interference
with the treatment would constitute an action. But it is difficult to see any
grounds on which that could be the case. If removal of feeding is an omission by
the doctors, it must surely be an omission by everyone else. How can removing the
feeding tube be an omission for the doctors, but still constitute an interference
with medical treatment on the part of the interloper? In fact, if it is an omission to
remove the feeding tube, and that is a significant fact in the attribution of respons-
ibility in the case, surely there are reasons to think that it is only the doctors who
are liable for the offence: they, unlike the interloper, have a duty to care for Bland.
But even if this is rightly considered an omission, surely it would be wrong to
say that the doctors in the case would not be breaching the criminal law in termi-
nating Blands life. Surely the better way to see the case is to argue that terminating
Blands life constituted a justified breach of the criminal law. Where doctors
[1993] AC 789. 866.

The difficulty with this view in legal doctrine is that necessity is not a defence to murder.
See R v Dudley and Stephens (1884) 14 QBD 273, followed and explained in R v Howe [1987] 1 AC 417.
It is reported in Bland at 865 that euthanasia has explicitly been declared illegal in English criminal
law in R v Cox (unreported), 18 September 1992.
decide not to continue treatment, resulting in death, surely they must show that
they are justified in that decision, regardless of whether continuing treatment
involves action, or is done solely by omission. They must take such decisions for
the right reasons, as justification defences require. If the doctor stops treatment
because he is too lazy to continue, or because he thinks that he has better things to
do, he ought to be convicted of killing the victim, even if it would have been justi-
fiable to act in that way to prevent the continuing suffering of the family, or
because there is no hope of future improvement. If the doctor, in discontinuing
treatment, lacks the actus reus of an offence, it becomes impossible to distinguish
between defendants on the basis of motivation. For if the actus reus is missing,
there is no further question to be asked about why the defendant acted in the way
that he did. It is on the grounds of justification that we ought to distinguish
between the doctors in the case and the interloper, rather than the distinction
between action and omission.
It is worth noting that this account would also avoid the objectionable
consequence of the decision in Bland that the doctors were only permitted to
allow Bland to die by discontinuation of the treatment that was sustaining his life.
They could not act to terminate his life. But that can only have prolonged, com-
pletely unnecessarily, the suffering of Blands family. Once the decision is taken
that it is justified that Blands life be ended, it is difficult to see any reason why this
should be done in a way that prolongs the agony of those close to him through a
supposed omission, rather than by direct action.
Fourthly, when considering responsibility for omissions, it is important to
consider whether the defendant was uniquely placed to rescue the victim. In the
case of Joss, above, it may seem inappropriate for criminal responsibility to be
imposed on any of the drivers on the motorway who fail to stop and fail to call for
help. This might seem paradoxical. It is in fact true that where one is in need of
assistance, one is better off being with fewer people rather than many. Where
there are many people who can act, there will be fewer people who will. Now, it
might be thought, with Frances Kamm, that where one is not sure what other
people will do, one has an obligation to find out. This would appear to impose
responsibility on all of the people on the motorway at least to discover whether
Joss was being tended to by others. However, it may be that imposing burdens not
only to assist but also to discover whether others require assistance goes a step too
far. We might think it morally best that one finds out, but is it always morally
required that one does so? That might distinguish many cases where the defendant
is one of a large group of people who could easily assist the victim. Each of the last
See Chapter 10.

See J Gardner Justifications and Reasons in A P Simester and A T H Smith (eds) Harm and
Culpability (Oxford: OUP, 1996) and Chapter 10.
See the graphic examples in L Katz Bad Acts and Guilty Minds (Chicago: University of Chicago
Press, 1987) ch. 2.
The New Problem of Distance in Morality 74.
group may be permitted to do their own thing, assuming that others will help, even
though it is best that they help.
It is undoubtedly clear that criminalising omissions must be done with some
care, and the arguments presented for the orthodox position show that this is
more or less the case. But those arguments are not sufficient to defend the
orthodox position itself. There may be further practical difficulties and difficulties
of notice that are to be confronted when criminalising omissions. But those
arguments are likely to vary greatly from case to case. What they cannot do is to
provide a justification of the very restricted position of the criminal law. When
Vernon says to Clive that it is his moral duty to inform the authorities about what
he has seen, we are entitled to expect it to be his legal duty as well.

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7

Criminal Omissions: Culpability,

(London: Vintage, 1998). Amsterdam 87.

Criminal Responsibility. Victor Tadros.

Ibid 889. Ibid 151. (1902) 19, TLR 37.

(1918) 13 Cr App R 134. [1983] 2 AC 161.

7.1 The Argument from Culpability

The problem with these arguments is that they insufficiently differentiate

7.2 The Argument from Responsibility

See particularly 332. Ibid 32930.

Why Omissions Are Special 332.

7.3 The Argument from Liberty

See also Chapters 3 and 9.

imposition of criminal responsibility on an agent for his actions. Although D2

7.3.1 Do Omissions Restrict Liberty to a Greater Degree

7.3.2 When is it Better for Me to Increase My Liberty?

Traditionally, there is a general principle that is recognised in law that there is no

[1993] AC 789. 866.

See Chapter 10.

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