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Scots Criminal Law and Liability for Omissions

It has been asserted that it is only in certain restricted circumstances that an omission is regarded as criminal conduct. The law can have regard only to legal obligations and it does not enforce the obligations of morality unless these have been adopted as legal obligations. While someone may fail in a moral duty that does not in itself mean that his or her conduct can be categorised as criminal. The conventional view is also that there are a number of cases in which there may be a legal duty to prevent certain circumstances and that failure to do so is equivalent to bringing it about by an act. The standard text on criminal law and omissions in support of these assertions is not replete with Scots case law. Most of the Scots cases said to be of relevance to the concept of omissions are from the early to midVictorian period. These prosecutions were commenced in an era of minimal government when central and local authorities had comparatively speaking few statutory duties placed on them. This was a period when there was growing concern amongst parliamentarians, the medical profession and others about the state of city dwelling. The use of criminal law was one of the few ways of trying to control extreme events: ‘the term “criminal law” itself misleadingly presupposes a unitary concept. Criminal law arises in specific social and political contexts’. The pragmatic use 150 years ago of criminal law to achieve some sort of social or public health regulation is, accordingly, not a proper basis for now deducing a normative theory. Moreover, prosecutions are by definition a response to an event rather than a necessary application of a policy or plan. Scots criminal law had not been intended for the sort of regulation that it was actually put to in the early Victorian era. A fortiori teasing out a general theory on what might or might not be similar foundations in other jurisdictions can also be regarded as unsatisfactory,