Topic 8 - Incapacity and General Defences - Theory Flashcards
Defining defences - traditional approach
> Some defences, e.g. loss of control, mitigate sentence imposed & don’t actually lead to acquittal.
P. Robinson suggests defences are ‘anything that prevents conviction of a defendent.’ But Husak says this is too wide as it would include death of D before trial is complete.
Traditional classification of defences:
1. AR of crime
2. MR of crime
3. A defence
4. Mitigation.
Glanville Williams: “what we think of as the definition of an offence and what we call a defence can only be regarded as depending largely upon the accidents of language, the convenience of legal drafter, or the unreasoning force of tradition.”
Husak: can be hard to tell which category a matter falls in to.
But just because ‘bright lines’ can’t be drawn, it doesn’t mean the classification isn’t useful.
Self-defence, automatism = denial of AR.
Defining defences - alternatives to the traditional classification
- Add additional category of exemption:
- Lacey = those who are outside the purview of the criminal law.
- Horder = such people can’t be required to comply with the standards expected of the criminal law because they lack the capacity to appreciate those standards or be responsible for their behaviour.
- E.g. children & insane but Loughnan & P. Robinson are sceptical about exemptions. Argue that although someone may be insane at time of offence, they may not generally be insane and so to describe such person as exempt from the criminal law sometimes &sometimes not creates unnecessary confusion. - Argue that all defences are in essence about redefining the offence definition (P. Robinson):
- All offences made up of just 2 elements (AR and MR) and all defences would be denials of AR or MR.
Defining defences - does any of this matter?
> There are cases where distinctions have practical significance.
In offences of SL, where there’s no need for prosecution to prove any MR, whether an element is regarded as of AR or MR is important.
Prosecution have burden of proving AR and MR elements of the offence whilst the defence carries the burden of raising the defence so whether self-defence is a denial of AR or a defence matters.
Justifications & excuses - overview
> One popular way to analyse between defences is to distinguish between justifications & excuses.
P. Robinson: “An actor’s conduct is justified, an actor is excused.”
Justification focuses on what D did and claims that what they did was permitted by the law normally because society has approved of what they have done.
With an excuse, D admits that what they did wasn’t permissible, but that they don’t deserve to be blamed. E.g. because of their mental state.
Nicola Lacey:
-“While excuses bear primarily on the conditions of circumstances under which D has acted, and hence on responsibility, justifications bear on the nature of D’s conduct.”
-“Justifications justify actions; excuses excuse actors.”
-However, the “distinction turns out, once again, to be a difficult line to hold.”
-“First, justificatory and excusatory elements are often blended in actual defense arguments.”
-“Second, even where a defense is placed on a firmly excusatory footing, evaluations of reasonableness come into play.”
-“A provoked reaction must be that of a ‘reasonable person’; the duress defense is available only where a person of ‘reasonable firmness’ would have succumbed to the threat, and so on.”
-“Generally entitled to be judged on the basis of the facts as they believed them to be.”
Justifications & excuses - justifications
> Fletcher discusses the debate concerning justification which concerns whether, if there is a justification, there is still a wrong committed against a V.
One view is that D has still wronged the ‘V’, but that this wrong has been outweighed by the good consequences flowing from the act whilst the opposite view is that if the act is justified then it is ‘all right’ and no legal wrong has been done.
Preferable to say that a justification involves actions that are permissible, rather than actions that are right although Uniacke suggests a distinction between a strong justification (the act was morally right) and a weak justification (the act was permissible, although morally wrong).
How does law decide if what D did is permissible if it would otherwise be a criminal offence?
1. Lesser of two evils.
2. Moral forfeiture.
3. Securing legal & moral rights.
4. Public authority justification.
Justifications & excuses - justifications - How does law decide if what D did is permissible if it would otherwise be a criminal offence? Lesser of 2 evils
> P. Robinson: no ‘net societal harm.’
>Alexander: doesn’t explain why it’s permissible to use slightly more force than is threatened to repel an attack.
Justifications & excuses - justifications - How does law decide if what D did is permissible if it would otherwise be a criminal offence? Moral forfeiture
> Leverick: V forfeited right not to be injured as a result of their morally wrong conduct, thereby authorising D’s use of force against them.
Some commentators argue fundamental rights shouldn’t be forfeited.
Theory works well unless V isn’t morally to blame.
Justifications & excuses - justifications - How does law decide if what D did is permissible if it would otherwise be a criminal offence? securing legal & moral rights
> D is acting in order to promote their legal (and moral) rights.
Protect/promoted right to personal autonomy.
Justifications & excuses - justifications - How does law decide if what D did is permissible if it would otherwise be a criminal offence?
> Public officers are given authority on behalf of state to use force in certain circumstances.
The Dadson view
> View taken in English law following Dadson 1850 that only if one acts in a permissible way and for justifying reasons can one claim to be justified.
Hitchler adds that the justifying circumstances must be one of the reasons for which D acted.
Don’t want people to break the law if they aren’t aware of any justifying circumstances.
Justifications & excuses - justifications - deeds vs reasons
> Fundamental dispute over the nature of justification.
A person is justified because:
-Their deeds are justified (the ‘deeds’ view).
-They act for justifiable reasons (the ‘reasons’ view).
-Both their deeds and reasons are justified (the ‘deeds and reasons’ view).
Justifications & excuses - excuses
> Kadish: excuses are all about removing the blame.
Marcia Baron suggests excuses can be divided into 2 categories:
1. Those that relate to D & claim that there was something about D which made it harder for them than most people to comply with the law and;
2. Those that relate to the circumstances D founds themselves in.
Excuses therefore complete the picture of assessment of D’s blameworthiness.
Justifications & excuses - excuses - essential elements of an excuse
> J. Horder, Excusing Crime:
- “It is a necessary condition of any claim to excuse that it is an explanation for engagement in wrongdoing”
- “Excuses are morally as well as legally distinctive in character. Excuses excuse the act or omission amounting to wrongdoing, by shedding favourable moral light on what D did.”
- “Morally active”
- “Finding an understandable ‘rational defect’ in a morally salient motivating force of factor behind an action is perhaps the most commonly encountered route to excuse, particularly, but not solely, where the action is grounded in a strong emotional reaction.”
Does the distinction between justifications and excuses really matter?
- Paul Robinson suggests that if the law provides justification this in effect changes the law.
- If say shooting someone is justified the law would change to the extent that it was lawful to shoot someone in ‘X’ circumstance.
- Whereas if D is granted an excuse then as no 2 people are identical, the fact one person was excused doesn’t mean another will be.
- Although once a particular medical condition gives rise to a defence then could argue all sufferers are likely to use the excuse.
- Horder: justification seeks to offer guidance to Ds before they act, while excuses assess the culpability of the offenders one they have acted. - If D is attacked by a person who is excused, D can lawfully resist the attack but if person using force against D is justified, he cannot.
- Gur-Ayre suggests a person’s right to self-defence shouldn’t be lost even if the attack they are facing is justified or excused. - You can lawfully assist a person who is justified in using force, but not someone who is only excused.
- Gury-Ayre also rejects this on the basis that a person intervening to protect someone’s life should have a legal defence irrespective of whether the person whose life they are saving is justified or an excused act. - Some commentators suggest that a defendant who, through their own fault, puts themself in a position where they must choose between the lesser of 2 evils can rely on justification, but an excuse isn’t available for a person who had brought about their own excusing state of mind.
- Contested by some who argue a justification shouldn’t be available where D has acted for the purpose of putting himself in the position where he has to choose between 2 evils. - Robinson recommends that when jury acquits D they should be required to make it clear if it was because they were excused, justified or failed to establish MR or AR so the basis of D’s acquittal is clarified and law is able to send a clear message about the requirements of the criminal law.
- Debate over whether legal test for justification is objective and excuse subjective but this is rarely so.
Should justifications be objective & excuses subjective?
> At first sight, justification = objective and excuse = subjective but defences often involve a mix of objective & subjective elements.
Robinson view of justifications = purely objective however, Dadson view requires some objectivity as D’s state of mind is relevant too (D needs to be aware of & acted because of the justificatory reasons.)
Controversy over whether all excuses should be purely subjective. E.g. should duress be whether D felt compelled by the threat or whether the reasonable person would have? Although if regard duress as justification then no issue here.
Horder argues that there is a justificatory element in excuses.
Justifications & Excuses - J. Gardner - summary
> J. Gardner argues there is a closer relationship between justifications & reasons than is often supposed.
He suggests the reasons must be guiding or explanatory.
Guiding = reasons which dictate what you ought to do or believe.
Explanatory = explain why you act in a particular way.
A person may think their explanatory reasons are guiding reasons but they might not be.
Gardner argues that to amount to a justification a person must have both guiding & explanatory reasons for being justified, and the guiding reason must correspond with the explanatory reason.
An excuse, he argues, is analogous to a justification in that an excused person must act for good explanatory reasons and then justify why there thought they were justified.
J. Gardner, ‘Justifications and Reasons’ - passage
> It is widely thought that excuses are more ‘subjective’ than justifications. In one sense of ‘subjective’, as we will see, this is perfectly true. But it is not true if we are using the labels ‘subjective’ & ‘objective’ to mark the contrast between explanatory & guiding reasons.
Whenever excuses depend on the union of explanatory and guiding reasons, moreover, they do so precisely because justifications depend on the union of explanatory and guiding reasons.
The structure of excuse derives, in other words, from the structure of justification, and thus shares in its combination of subjective (explanatory) and objective (guiding) rationality.
Theorists who think every excuse is concerned with character traits are mistaken.
A fully justified actions needs no excuse so the point must be that there is something suspect about the reasons for which they act. And indeed there is. They are not valid reasons. They are what the person acting upon them takes to be valid reasons, and justifiably so. Thus the structure of excuse derives from the structure of justification. To excuse an action is not, of course, to justify that action. Rather, one justifies one’s belief that the action is justified.
Emotions like anger and fear are mediating forces between beliefs and actions. They enhance or constrain the motivating force of certain motivating beliefs. Their justification therefore turns in part on the justification of the beliefs which partly constitute them, Of course there is still a justificatory gap: an emotion is not fully justified merely by the justification of its cognitive component. But justified emotion nevertheless entails justified belief.
One must therefore consider what is needed to make a belief justified.
A belief is justified, not only by the reasons there are for holding it, but also by the process of reasoning by which it came to be held, i.e., not only by guiding reasons but also by explanatory reasons.
Excuses, in which an element of reasonableness, at some level, is conceptually necessitated whether the crime is one of full subjective MR or one of no MR at all.
Requirements of ‘reasonableness’ in criminal excuses serve to orientate the law towards general application to people living many different forms of life, rather than tailoring it to suit the expected virtues of a certain kind of person leading a certain kind of life. The debate about the extent to which the reasonable person should be ‘individualised’ to the characteristics of the defendant in the definition of criminal excuses is partly a debate about the extent to which the criminal law should aspire to this kind of generality.
Legal systems can vary in their willingness to individualise excuses and general principles but they cannot altogether eliminate the essential ‘objective’ dimension if excusatory claims because excuses rely on reason and not the absence of it.
Justification and excuse both belong to the realm of responsible agency, and that is precisely because both depend on the ability to live with reason.
Between the concepts of justification and excuse, justification is the more fundamental. The same proposition also brings out the true sense in which excuses may be regarded as more ‘subjective’ than justifications. For by their nature excuses take the world as the defendant justifiably sees it rather than as it is. They look to what the defendant believes to be applicable reasons for action, so long as she does so on the basis of genuinely applicable reasons for belief. Justifications, meanwhile, look directly to the genuinely applicable reasons for action, without stopping to look for applicable reasons for belief. But in this whole contrast the talk of ‘reasons’ is talk of guiding reasons. It leaves on one side the fact that, in both justification and excuse, explanatory reasons also play a key role, and that, in this sense and to this extent, each is just as subjected as the other.
Problems with justifications and excuses
> Reasons for denial of usefulness in the distinction:
- General refusal of the courts to engage in an analysis of the defences in terms of justifications and excuses may indicate the distinction lacks practical benefit.
- Kent Greenwall: so much debate over whether duress or mistaken self-defence is a justification or excuse which shows the distinction is too vague to be useful.
- Some commentators argue that our society lacks agreed moral standards which can be used to assess the justifiability or not of particular actions. For the law to declare such actions justifiable or not is to impose a moral judgement when society lacks a sufficient consensus on the issue.
Character, choice and capacity
> Considering the theoretical foundations of defences can be complementary to or independent from analysing them in terms of justifications or excuses.
3 main schools of thought: choice theory, capacity theory and character theory.
But within each there’s a diversity of opinions.
Some, e.g. Horder, think best not to have one overarching theory of culpability as different ones may be more appropriate for different kinds of defences
The Choice Theory - brief summary
> D should be punished only for what s/he has chosen to do.
>Supporters for this view tend to prefer subjective forms of MR, e.g. intention, Cunningham recklessness.
The Capacity Theory - brief summary
> Punishment is justified only for not only those who chose to commit the harm, but also those who could have avoided causing the harm but didn’t.
Defences apply when D did not and could not have chosen to obey the law.
The Character Theory - brief summary
> Argues that D’s criminal act reflects D’s bad character.
>A defence should exist when the act doesn’t reveal bad character.
Nicola Lacey, ‘Space, Time and Function: Intersecting Principles of Responsibility across the Terrain of Criminal Justice’ - ‘Capacity’ principles: choice & opportunity
> Foundation of this view is that not only a person’s status as a responsible agent answerable to the normative demands of the criminal law but also of an attribution of responsibility for specific actions lies in human capacities of cognition and volition powers of self-control.
Rise in subjectivism within this theory
If the basic moral intuition underlying the capacity theory is that it is only legitimate to hold people criminally responsible for things which they had the capacity to avoid doing, we can realise this intuition in one of two ways:
-We can do so through a subjective choice in the sense of intention, awareness, knowledge (Williams, 1983)
-Or we can ask - as Hart did - whether the D had a fair opportunity to conform his or her behaviour to the criminal law standards.
This second approach implicates not only subjective mental states but also ‘objective’ standards like negligence or the imposition of reasonableness constraints in the specification of defences.
Further pro of opportunity version of capacity responsibility is that it is less susceptible than the choice version to the truth of determinism, in that the evaluation can be relative to socially pervasive reactive attitudes.
Nicola Lacey, ‘Space, Time and Function: Intersecting Principles of Responsibility across the Terrain of Criminal Justice’ - ‘Character’ principles: overall character; expressed disposition towards the relevant criminal law norms
> Martin Wiener has argued that it is possible for character and capacity theories to be combined as character responsibility implies holding us accountable for things which we could not, or had no fair opportunity to, avoid.
Most radical of the 2 character principles = ‘overall-character principle’:
-Holds that the attribution of criminal responsibility is founded in a judgment that D’s conduct is evidence of a wrongful, bad, disapproved character trait.
-The criminal law, on this view, seeks to convict, label and stigmatise those of bad character of disposition.
-Criminal conduct is at root a symptom of the underlying rationale for conviction & punishment, namely bad or anti-social character.
-Raises questions over scope of evidence: broad character evidence like criminal record, lifestyle, employment history?
In its more cautious form, character-responsibility restricts itself to an evaluation of the specific conduct which forms the basis for the present allegation.
As Tadros puts it, “does D’s conduct qua moral agent display the sort of vice which calls for criminal law’s communicative role of expressing moral indignation to be invoked?”
This view would naturally locate an attribution of responsibility within a broader time frame than that implied by the capacity principles. For the context within which an agent has acted - a history of domestic abuse, for example - will be relevant to an evaluation of the disposition which that action expresses.
The Capacity Theory - what is it?
> Hart: “a person is not to be blamed for what he has done if he could not help doing it.”
Dressler: it is appropriate to punish only a person who is responsible for their actions.
Uniacke: lacked fair opportunity to choose to act otherwise.
Michael Moore argues that the emphasis the capacity theory places on the ability to be able to choose reflects the wider attitude in society that the ability to choose is an important freedom.
