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7 Legal Stud. 92 (1987)
What Should the Code Do about Omissions

handle is hein.journals/legstd7 and id is 100 raw text is: 92 Legal Studies What should the Code do about omissions? Glanville Williams Emeritus Professor of Law and Honorary Fellow ofJesus College, Cambridge I yield to none in my admiration of the draft Criminal Code produced by the Law Commission's academic team,' but everyone who studies it will have what he regards as improvements to suggest. So here is my item, relating to the team's proposals for omissions. I think the draft provides too great scope for offences of omission, particularly for serious offences of omission. This article is concerned with pure omissions. I call them 'pure' since omissions combined with action are counted as acts - largely because they are not subject to the peculiar difficulties of penalising omissions. For instance, the failure of a driver to show the required lights at night is not to be classified merely as an omission, since the offence is one of driving without lights (act plus omission). Here (in contrast to some offences of pure omission) there is no difficulty in deciding who is the person responsible for the omission element; it is the actor, the driver. Moreover, compliance with a law against a pure omission may be oner- ous, but compliance with a law against a combination of act and omis- sion is achieved simply by not doing the act. This point as to act-omissions is easily overlooked. On one occasion it plunged into error no less a body than the Criminal Law Revision Committee (including, as I must blushingly admit, no less a person than me). In discussing omissions, the committee expressed the opinion that if a cleaning woman put polish on a floor but recklessly omitted to carry out her instructions to put up a notice warning that the floor was dangerous, her omission should not make her guilty of recklessly causing injury if someone fell.2 As I belatedly realise, we failed to notice that in such circumstances of act-omission the total conduct could and should be regarded as an act, so that the cleaner could be guilty of the offence of causing injury recklessly - an offence proposed by the Committee (and now by the codification team). There is no way of avoiding such a result by general rule if one has an offence of recklessly causing injury. Of course, the cleaner might be acquitted on the ground that her negligence was insufficiently great to be accounted reckless. Indeed, many will think that in such a marginal case, amounting to litle more than civil negligence, there should be no prosecution for such a serious type of offence, which is disproportionate to the gravity of the fault. The principle is capable of bringing about fine distinctions, as all legal rules are. If in the foregoing hypothetical it was the duty of the janitor and not the cleaner to put up the notice on polishing days, he could not 1. Law Com No 143. 2. Fourteenth Report (Cmnd 7844), para 254.

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