Evaluating criminal law

Overview

Recall questions on criticisms of omissions liability and the rules of causation, direct and oblique intention and the Woollin direction, the continuing act and single transaction solutions to coincidence, Cunningham recklessness against negligence, and the treatment of automatism.

What you need to know

Answer each one before you reveal it.

Questions from this subtopic

Each one with the model answer underneath.

1. 1

   What criticism is commonly made regarding the clarity of the categories establishing a duty to act in omissions liability?

   Model answer

   The categories (contractual duty, special relationship, voluntary assumption of responsibility, creation of danger, public office) have developed piecemeal through case law and lack clear statutory definition, making it difficult for individuals to know when they are under a legal duty to act.

2. 2

   What is the principal argument against imposing criminal liability for omissions?

   Model answer

   Criminal law traditionally punishes positive acts rather than failures to act, reflecting the principle of individual autonomy. Imposing liability for omissions may unfairly criminalise those who simply fail to be Good Samaritans, potentially extending criminal responsibility too widely.

3. 3

   What argument supports imposing criminal liability for failing to act in certain circumstances?

   Model answer

   Where a defendant has a special relationship or has assumed responsibility, their failure to act may be morally equivalent to causing harm directly. Society has a legitimate interest in requiring those with duties to fulfil them, particularly to protect vulnerable individuals.

4. 4

   How might the 'but for' test for factual causation produce unfair outcomes?

   Model answer

   The test can be over-inclusive, catching defendants whose contribution to the result was minimal, or under-inclusive in cases involving multiple sufficient causes where each defendant could argue the result would have occurred anyway.

5. 5

   What criticism is made of the rules on breaking the chain of causation regarding consistency?

   Model answer

   The rules lack consistency: medical negligence rarely breaks the chain unless 'palpably wrong', yet victim actions may break it if 'daft'. This creates uncertainty and arguably treats similar intervening events differently without clear principled justification.

6. 6

   Why might the distinction between direct and oblique intention be considered difficult to apply in practice?

   Model answer

   Direct intention (purpose) is straightforward, but oblique intention requires juries to assess whether death or serious harm was virtually certain and whether the defendant appreciated this. This involves complex psychological assessment and may lead to inconsistent verdicts.

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