OMISSIONS, NON-INTERVENTIONS AND CAUSATION: ANDREW SIMESTER’S ACCOUNT

Abstract

Simester has defended the following conclusions: (1) an omission to φ can cause outcome x; but (2) an omission to θ (where θ-ing would have prevented x) cannot relieve another agent of causal responsibility for x. In relation to (1), I contend that a fuller explanation of why the law should recognise omissions as causes, rather than as an independent head of responsibility-attribution for results, is required, and that any such explanation will raise questions regarding Simester’s distinctions between causal elements. Conclusion (2) follows from Simester’s view that “direct” causation is sufficient for causation of x. It will be argued that Simester has not yet made the case for preferring this model over a more familiar one, whereby an initial finding of “factual” causation is always open to being defeated by doctrines of intervening causation to ensure that responsibility for outcomes is doled out appropriately by the criminal law.