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Essays in Criminal Law in Honour of Sir Gerald Gordon$
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James Chalmers and Fiona Leverick

Print publication date: 2010

Print ISBN-13: 9780748640706

Published to Edinburgh Scholarship Online: March 2012

DOI: 10.3366/edinburgh/9780748640706.001.0001

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Theft by Omission

Theft by Omission

(p.158) 10 Theft by Omission
Essays in Criminal Law in Honour of Sir Gerald Gordon

Stuart P Green

Edinburgh University Press

This chapter focuses on theft. The question is whether thefts by means of an omission — including especially the offence of failing to return lost or misdelivered property — are properly thought of as morally equivalent to thefts by means of an act. Under the consolidated law of theft, as found in both the American Model Penal Code and to a lesser extent in the English Theft Act 1968, most omissive and commissive thefts are subject to the same punishment. It is argued that this is a mistake. Under basic retributive principles, only acts that are the same in terms of blameworthiness should be subject to the same punishment. Yet it is far from clear that theft by omission is always, or even normally, as blameworthy as theft by act. Indeed, some thefts by omission probably should not be criminalised at all. The argument is based primarily on the view that even if, other things being equal, commissive and omissive theft were properly viewed as morally equivalent, other things generally are not equal, and that the relevant differences — in terms of harms caused, wrongs inflicted, community understandings and criminalisation norms — provide a justification for differential treatment in theft law.

Keywords:   criminal law, ommissive theft, commissive theft, punishment, theft law

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