Beyond acts and omissions: remark-able criminal conduct

Publication details

Dsouza, Mark (2021) ‘Beyond acts and omissions: remark-able criminal conduct’, Legal Studies, 41(1), pp. 1–18. doi: 10.1017/lst.2020.44.

Summary

This paper proposes that instead of analysing a criminal offence’s conduct element in terms of acts and omissions, we should ask whether the defendant has belied a contextually salient expectation as to how she should, or routinely would, conduct herself. Slightly different sets of expectations are salient depending on whether our interest is in questions of criminalisation, or the proper interpretation of existing offences, but the criminal law is normally interested only in conduct-tokens that belie a relevant expectation. Belying such an expectation need not itself suggest culpability, but it does mark out the conduct as remark-able, in the sense of being ‘worthy of remark’.

This ‘Remark-able Conduct Requirement’ (RCR) analysis helps us narrow the field of conduct-tokens that are normatively appropriate candidates for criminalisation. Moreover, when adapted for use in interpreting existing offences, not only does it generate familiar and plausible liability outcomes and simplify the application of the law, but it also offers a principled argument to limit the scope of offences drafted in overly broad terms. By excluding innocuous doings from potential criminal liability, it allows us, for instance, to limit the scope of some terrorism offences that appear, at first glance, to treat mundane acts as the basis for extremely serious offences. Finally, it also suggests ways to make progress on philosophical puzzles about how we should conduct ourselves.

In November 2020, ‘Beyond acts and omissions: remark-able criminal conduct’ was awarded the Society of Legal Scholars Annual Conference Best Paper Prize 2020. The paper was commended for its clarity and originality in its analysis of a complex problem. 

Read a copy of ‘Beyond Acts and Omissions: Remark-able Criminal Conduct’ at https://discovery.ucl.ac.uk/id/eprint/10115937/

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